Indeed no doubt could have been reasonably entertained on this point, if the court of King's Bench, and afterwards the House of Lords, had not decided the contrary in Taylor v. Horde (o).

Lord Hardwicke viewed the feoffment of a tenant for years, as acquiring the freehold (p); so does Mr. Butler in his excellent note to Co. Litt. 330, b: and it is hardly [60]possible to conceive on what principle of tenure the decision of Taylor v. Horde can be supported. And on recent occasions the courts have allowed that Lord Mansfield's doctrine in that case cannot be sustained. To these observations it may be added that Mr. Pigott (q) admits, that though a tenant to the præcipe be absolutely necessary in every common recovery, yet if it be by disseisin, it is good in many cases. Lord Mansfield does not controvert this doctrine. The point on which he differs is, that a termor for years cannot by his feoffment gain the freehold by disseisin. Aware, however, that his argument rested on grounds which were disputable, he resorted to the common-law doctrine of fraud, and attacked the recovery in Taylor v. Horde, on that head.

(0) 1 Burr. 60. Cowper,
689. 5 Bro. P. Cas. 247.
(p) 3 Atk. 140. 3 Atk.

(9) Pig. Rec. 40.

And see Lincoln College

case, 3 Co. 59.

At what Time the Tenant must have the [ 61 ] Freehold.

By the common law, it was necessary that the tenant should actually have been seised of the freehold during the pendency of the suit, and at some time before the recovery was suffered, in other words, judgment given; and consequently that livery of seisin, when such livery was necessary, should have been made, or the deeds have been executed, &c. before judgment given (r). Now by the statute law, it is sufficient that the deeds making the tenant to the præcipe, or writ of entry, should appear to be dated in the term in which the recovery is suffered, although they are executed after judgment given, or even writ of seisin awarded.

By the statute of 14 Geo. 2. c. 20. it is recited, "that it has frequently happened "that the deeds for making the tenants to "the writs of entry, or other writs for suffering common recoveries, have been

66

lost, or that the fines or deeds, making "the tenants to the said writs, have not "been levied or executed till after the

66

judgment given in such recoveries, and[ 62 ] "the writ of seisin awarded, by reason "whereof great doubts have arisen whe"ther such recoveries, for want of proper (r) Lacey v. Williams, 2 Salk. 568. 1 Lord Raym. 227.

"tenants to the writs, are good and effec"tual in law."

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66

And to prevent such doubts for the

future, and to render common reco"veries more certain and effectual," among other things it is enacted (s)," that "from and after the commencement of this "act, every recovery already suffered, or hereafter to be suffered, shall be deemed good and valid to all intents and purposes, notwithstanding the fine, or deed or deeds, making the tenant to such writ, "should be levied or executed after the "time of the judgment given in such reco"very, and the award of the writ of seisin "as aforesaid, provided the same appear to "be levied or executed before the end of "the term, great session, session, or "assizes, in which such recovery was "suffered, and the persons joining in such recovery had a sufficient estate and power "to suffer the same as aforesaid."

To bring a case within the provisions of this act, care should be taken to date the recovery deeds on some day within the term. In legal In legal intendment the deed is supposed to be executed on the day of the date.

The object of the act has by some professional gentlemen of distinguished emi(s) Sect. 6.

nence been supposed to have been, to make the date or internal evidence of the deed itself decisive of the validity of the recovery, without allowing any evidence to be given re-[ 63 ] specting the time of the execution: so that the recovery may be good, although the deeds are, in point of fact, executed after the term; provided they are dated within the term. This practice ought not to be adopted, unless from circumstances it should become indispensably necessary. In legal proceedings, the old maxim of via trita, via tuta, cannot be too implicitly observed.

To avoid all question on the construction of the act, the deed should be executed as well as dated, within the term.

This caution, originally suggested from principle, is now become necessary from experience. A gentleman, of the first eminence, has given an opinion that a title, depending on a recovery, cannot be safely accepted, unless the recovery deed be executed, at least before the end of the term, by those in whom the freehold resides. In his construction of the act, the words, " appear, "&c." mean appear in evidence, and do not refer to the internal evidence of the deeds themselves. There are, however, strong grounds for trying to establish, whenever circumstances shall require it, the construction given to the words of the statute, by those who

wish to make the internal evidence of the deed conclusive. This construction becomes more obvious, when the object of the statute, and the nature of the provisions collectively, are considered.

[64] For this was a remedial law, made with a view to supply defects, and for the security of titles depending on recoveries; and is it not fair to argue that in using the word appear," the legislature adverted to the internal evidence of the deed, since by that alone a purchaser is guided, and by that alone he can be protected from fraud?

It must be admitted, however, that this construction is more difficult, on the recital than it is on the words of the enacting clause. On the recital, it may be insisted in argument, that the sole object of this legislative provision was to remedy the defect arising from a delay to execute the deeds, &c. till. judgment given, or writ of seisin awarded; and then with a qualification that the deeds should be executed within the term.

It is to be remembered that a fine acknowledged in the vacation, and levied as of the preceding term, will support a recovery suffered in that term (†).

Thus, by the common law, a recovery suffered defectively became good eventually, by reason of an assurance levied in point of (1) Lord Say and Sele's case, 10 Mod. 43.