By the common law, it was necessary that the tenant actually had the freeehold at some time before the recovery was suffered, in other words, judgment given; and consequently that livery of seisin, when such li very was necessary, must have been made, or the deeds executed, &c. before judgment given (g). Now by the Now by the statute law (h), it is sufficient that the deeds making the tenant to the præcipe, or writ of entry, shall appear to be dated in the term in which the recovery is suffered, although they are exccuted after judgment given, or even writ of seisin awarded.

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By that statute it is recited, that it has frequently happened, happened, that the deeds" for making the tenants to the writs of entry, or other writs for suffering common re"coveries, have been lost, or that the fines

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or deeds, making the tenants to the "said writs, have not been levied or exeແ cuted till after the judgment given' in such

(g) Lacey v. Williams, 2 Salk. 568. 1 Lord Raym. 227. (h) 14 Geo. II. c. 20.

છે.

recoveries, and the writ of seisin awarded, "by reason whereof great doubts have arisen "whether such recoveries, for want of pro

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per tenants to the writs, are good and ef"fectual in law; to prevent such doubts for "the future, and in order to render common "recoveries more certain and effectual," and among other things it is enacted, "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, not"withstanding the fine, or deed or deeds,

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making the tenant to such writ, should be "levied or executed after the time of the judgment given in such recovery, and "the award of the writ of seisin as afore

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1.

said, provided the same appear to be le"vied 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 suf"ficient estate and power to suffer the same as aforesaid.

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31. 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.

The object of the act has by some been supposed to have been, to make the date or internal evidence of the deed itself decisive of the validity of the recovery, without allow

ing any evidence to be given respecting the time of the execution, so that the recovery may be good, although the deeds are executed after the term; provided they are dated within the term. This practice cannot be safely adopted, unless it shall become indispensably necessary, from circunístances. 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 is 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 still are strong grounds for trying to establish, whenever circumstances shall require it, the construction given to the words of the sta tute, by those who wish to make the internal evidence of the deed conclusive: and this construction becomes more obvious, when the object of the statute, and the nature of the provisions collectively, are considered.

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 conclude 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 along she can be protected from fraud?!

It must be admitted, however, that the recital renders this construction more difficult, than it is on the words of the enacting clause. Ón the recital it may be insisted in argument that the sole object of the statute was to remedy the defect of 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 dated, in short erecuted 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 (i).

(i) Lord Say and Sele's case, 10 Mod. 43,

Instances in which a Recovery will be good, although the actual Freehold of the particular Lands is not in the Person named as Tenant in the Writ of Entry.

In general the person in whom the freehold of each parcel of the land resides, either in his own right, or by means of a conveyance made to him for the purpose, by the different owners, ought to be named tenant in the writ of entry,

To this general rule there are three exceptions:-1st, At the common law, when lands, parcel of a manor are granted for life, or in tail, the reversion remains parcel of the manor (i). In this case, a recovery suffered of the manor, will include the lands of which the reversion is in the lord; or rather, and more correctly speaking, the reversion; for the recovery being suffered of the manor, and the reversion being parcel of the manor, the reversion passes inclusively (k); but had the lands been severed from the manor, so that they did not remain parcel of the manor, the

(i) Litt. s. 690.

Co. Litt. 324, b.

Pig, on Recoveries, 50.

(4) Pig. Recov. 41.

Jeuk. Cent. 311.

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