122 OF THE VOUCHEES. COMMON RECOVERIES ARE WITH 1. Single Voucher. II. Double Voucher. III. Treble Voucher. 1. Of Recoveries with Single Voucher. A recovery with single voucher is in modern practice very rarely used. The only instance in which it has been used for many years, is that which is to be found in Mr. Fearne's Posthumous Works (0). In this recovery the writ is brought against the tenant in tail himself, as a tenant of the freehold and the recovery will be effectual to bar the estate-tail, only in the particular instance in which the tenant is actually seised of an estate-tail, conferring the right to the immediate freehold, in other words, an estate-tail in possession (p). Any estate-tail which is devested or dis (0) P. 336. (p) Taltarum's case, 12 Ed. IV. 14, 19. continued will not be barred (g). Nor will the recovery bar any estate-tail which has been previously aliened (r), although the party takes back an estate-tail, unless it be the same estate-tail, upon his conveyance (q). Nor will the recovery bar any estatetail, in remainder or reversion, after and expectant on an estate of freehold, though the freehold, as a distinct estate, be in the tenant in tail himself (s), or though it be in a different person, and both these persons are named tenants (t). For these reasons a decided preference is due, and, in practice, is given to recoveries with double or treble voucher. Suppose A. tenant in tail in possession : and he discontinues, or even conveys, and takes back another estate-tail, and suffers a recovery, in which he is named tenant, and vouches over, this recovery will bar the estate-tail taken under the discontinuance or conveyance; but the right under the original estate-tail will not be barred. The very point was decided in Taltarum's case, already cited. So that the same issue may [124]be barred as to one estate-tail, and their Owen v. Morgan, 3 Co. 5. Clithero v. Franklin, 2 Salk. (q) Taltarum's case, al- (r) Lin. Coll. ca. 3 Co. 58. Eliz. 827. (s) Meredyth v. Leslie, 6 Bro. Par. Cas. 209. 568. (t) Pigott on Recov. 35. 3 Co. 6, b. right under another estate-tail may continue. To effect a bar under the original intail there must be a voucher of the donee in tail, or the heir to the intail, and a voucher over. On the subject of recoveries with single voucher, the cases applicable to husband and wife must be called to recollection. The following Points occur. Husband makes a feoffment to the use of himself for life, remainder to the use of his wife for life, remainder to the use of the heirs of their bodies; and a præcipe is brought against him and his wife, and they vouch the common vouchee. This recovery does not bar the intail. The woman is not a proper tenant to the præcipe (w). So if lands are given to husband and wife, and the heirs of the body of the husband, remainder over, and the husband alone suffer a recovery, in which he is tenant to the præcipe, and vouches the common vouchee, this recovery is not a bar to the issue or him in remainder. The recompense cannot enure to the estate. The wife having a joint estate, and no moiety between them, the husband is alone no good tenant to the præcipe. The estate tail and remainder [ 125] (2) Pig. Rec. 35. depended on the estate of husband and wife, as on an entire estate. (x). It is otherwise of a joint estate conveyed to them before the coverture, for there one moiety is barred (y). All these cases suppose the recovery to be defective, because the husband is named tenant, and the recovery in value cannot go immediately to the estate-tail, and in the same line of succession as the estate-tail. Had any other person been tenant, and the husband been vouched, and he had vouched over, the cases admit that the estate-tail would have been barred (z). These cases turn on a point of great nicety. The reasoning is incorrect, so far as the recovery is assumed to be defective for want of a good tenant to the writ of entry. II. Of Recoveries with double Voucher. In recoveries with double voucher, the donee or heir in tail, instead of being named tenant to the writ of entry, is vouched. Hence the necessity, in most cases, of a [126] previous conveyance, for the purpose of making a tenaut to the writ of entry. A person who comes in as a vouchee, on a common recovery, comes in of all estatestail of which he is, or of which he ever was seised: or, with the exception of contingent or future interests, which he has in point of right or title (a). This is a general rule of law, and an universally acknowledged principle. Thus a recovery in which the tenant in tail is vouched, and is vouched over, will bar an estate-tail, of which he is actually seised it will also bar all intails, under estates which have been devested, discontinued, or previously aliened. Several estatestail, or the right to several estates-tail, by one and the same operation may also be barred (b). All remainders and reversions expectant on the intail, even though the estate-tail has been previously barred by a fine with proclamations levied by the tenant in tail, are within the influence and barred by the operation of the recovery (c). And the better, and at this day the generally received opinion is, that a recovery suffered by the heir in tail after the death of the ancestor, and after a fine with proclamations levied by the ancestor, which has effectually barred the (a) Salk. 571. Brook. Tail. Plea. 32. 2 Roll. Rep. 418, Manxel's (c) Barton v. Lever, Cro |