Goodtitle v. Burr. 1065. Chandos, 2 of the life estate, it would be in the power of every remainder-man in tail to bar the estate tail, notwithstanding the tenant for life should absolutely refuse to join with him in suffering a recovery." The tenant to the præcipe could, of course, be made by any assurance capable of transferring the freehold. It was, however, most usual to convey the freehold to him by bargain and sale enrolled. Such an assurance, unless enrolled within six lunar months, was void; and hence the recovery was frequently defective for want of a good tenant to the præcipe, from failure duly to enrol the bargain and sale. For remedy of this inconvenience, it is, by the 3 & 4 W. 4, c. 74, s. 11, enacted, that "no 66 common recovery shall be invalid in consequence of the neglect "to enrol in due time a bargain and sale, purporting to make the tenant to the writ of entry, or other writ for suffering such re"covery; provided such recovery would have been valid if the "bargain and sale, purporting to make the tenant to the writ, "had been duly enrolled." It has long been a disputed question, whether the tenant to the præcipe, in a recovery defective on account of the actual freehold being outstanding, was a necessary party in a new recovery, either as between himself and the tenant to the præcipe in a new recovery, or as a concurring party to the Whenever it shall be necessary,' conveyance to a new tenant. observes Mr. Preston 2, "to support a title on adverse litigation, 21 Conv. 60. merely on account of the want of such a conveyance, it may be contended (and it would seem with great chance of success) that the former recovery was good as between the parties; that the estate conveyed to the tenant was drawn out of him by the operation of the recovery; and that the declaration of the uses governs the legal title as between the parties." In a recent case the Vice-Chancellor held accordingly 3. The question is now, how- In re Debary, ever, one of mere speculation, as such defects are cured by the 11th sect. of the 3 & 4 W. 4, c. 74, above stated. 66 99 5 Sim. 283. It has been a question of frequent discussion, whether a husband seised jure uxoris could make a tenant to the præcipe of his wife's lands without her joining him in a fine; but it has, at 5 Crui. 292. length, been determined, that the husband alone may make a tenant to the præcipe of the wife's lands, in a recovery to be suffered of her lands; and that such recovery will bind her and her heirs unless reversed within twenty years after the determination of the coverture 5. 5 Doe d. Smith, By the 23 Eliz. c. 3, s. 1, it was enacted, "That every writ v. Bird, 2 N. & M. 679. 4 18 Hen. 6, c. 12. whereupon a recovery shall be suffered, the writ of summons, "the returns of the said writs, every warrant of attorney, as well "of the demandant and tenant as of the vouchee, extant, may, 66 upon the request of any person, be enrolled in rolls of parch"ment, and the enrolment of the same, or any part thereof, shall "be of as good force and validity at law as the same being extant "and remaining were or ought by law to be." The proper evidence of a recovery is the exemplification of it; but there are many exemplifications of recoveries, suffered between the commencement of the reign of Queen Anne and that of George the Second, whereof no entries upon the rolls in the treasury of the court of Common Pleas, nor any writ of entry, summons, or seisin, can be found. Repeated instances of this kind having been discovered by Mr. Pigot, in the course of his practice, in order to remedy the inconveniences which might thence arise in making out titles, it was, by the stat. 14 Geo. 2, c. 20, s. 4, enacted, "That the deeds making "the tenant to the writ of entry, and for declaring the uses of the recovery, should be sufficient evidence that the recovery was duly "suffered and perfected; provided the persons making such deeds, and declaring the uses, had a sufficient estate and power "to make a tenant to such writ, and suffer a common recovery." 66 Amendment of fines and recoveries.]-Owing to the artificial and technical manner in which fines and recoveries were levied and suffered, they were more liable to mistakes and errors than any other species of assurance. As they were transacted wholly in the Common Pleas, all applications for the amendment of such inaccuracies were made to that court'. Where the proposed amendment would be tantamount to levying a new fine, the court would not interfere, as when the object of the amendment was Heath v. Wil- to change the term of which the fine was recorded2. Formerly, also, the court was very reluctant to make any change in the names of the parties, as to insert the name of Motley and wife instead of Wood and wife3; though in recent cases, the Christian name of the parties has not unfrequently been amended4; and after 1 Bro. & Bing. a possession of fifty years, the court, in a late case, ordered a recovery to be amended by transposing the names of the demandant and tenant 5,-there was a similar unwillingness to alter the name of the county, though this has been allowed where there was a great resemblance, as beween 'the county of Southampton' and 'the mot, 2 Bl. 788. 3 Ex parte Motley, 2 Bos. & Pul. 455. 16; 4 Bing. 97; 8 Mo. 449. 58 Bing. 10; 1 M. & Sc. 43. * 4 Taunt. 855. town and county of Southampton,' or where one parish extended into two counties 7. On the other hand, where the amendment 8 Taunt. 87. 16 Taunt. 73; 1 Bing. 22. 4 Taunt. 155; Id. 226; Id. 2 Bing. 93; and see Powel v. Peach, 2 BI. 4 Lambe v. related merely to a matter of form or of detail, and the court was Most of the cases in which the court was in the habit of amending fines and recoveries, are now provided for by the statute for the abolition of these modes of assurance. By this statute it is enacted, "That, if it shall be apparent, from the deed declaring the uses of any fine already levied, or hereafter to be levied, that "there is in the indentures, record, or any of the proceedings of "such fine, any error in the name of the conusor or conusee of "such fine, or any misdescription or omission of lands intended. "to have been passed by such fine, then and in every such case, "the fine, without any amendment of the indentures, record, or "proceedings in which such error, misdescription, or omission Reaston, 5 5 2 Bing. 386. 6 13 & 4 Wm. 4, c. 74, s. 7. : Lockington v. Shipley, 1 Bing. N. C. 355; 1 Scott, 263. 8 3 & 4 W. 4, c. 74, s. 8. 4 Id. s. 9. s Sect. 1. * Lloyd v. Vaughan, 2 Stra. 1257. "shall have occurred, shall be as good and valid as the same "would have been, and shall be held to have passed all the lands "intended to have been passed thereby, in the same manner as it ،، would have done if there had been no such error, misdescription, "or omission1." On an application to amend a fine subsequent to the passing of this act, in a case of misdescription apparent on the face of the instrument, the Court of Common Pleas refused to interfere. Tindal C. J., observing, "If we accede to this application, we shall be in the same situation as before the act-called upon to amend upon every conveyancer's doubt-and all the expense will be incurred which the act was intended to prevent 2." “ And also, That, if it shall be apparent, from the deed making "the tenant to the writ of entry or other writ for suffering a common recovery already suffered or hereafter to be suffered, that there is in the exemplification, record, or any of the proceedings of such recovery, any error in the name of the te،، nant, demandant, or vouchee in such recovery, or any misdescription or omission of lands intended to have been passed by such recovery, then and in every such case the recovery, ،، without any amendment of the exemplification, record, or pro"ceedings in which such error, misdescription, or omission shall "have occurred, shall be as good and valid as the same would "have been, and shall be held to have passed all the lands in"tended to have been passed thereby, in the same manner as it "would have done if there had been no such error, misdescription, " or omission 3." ،، ،، ،، "Provided always, that nothing in this act contained shall "lessen or take away the jurisdiction of any court to amend any "fine or common recovery, or any proceedings therein, in cases "not provided for by this act 4.". Reversal of fines and recoveries.]-Fines and recoveries, like any other actions in a court of law, may be reversed by writ of error, which is a proceeding in the nature of an appeal, and, therefore, must be brought in a superior court. By the stat. 10 & 11 W. 3, c. 4, this writ must be brought within twenty years 5 after the fine levied or recovery suffered, except in case of legal disability, and then a further period of five years is given after the disability removed, notwithstanding the twenty years have The errors assigned may be either in fact, as that the son, Palm. 224. cognizor, or vouchee, where he appears by attorney7, was under * Holland v. Dauntzey, Cro. Eliz. 739; run. Wynne v. Wynne, 1 Wils. 42. legal disability, or that the vouchee died before judgment, this being a matter not contrary, but collateral to the record; or in law, that is, on account of some defect appearing on the face of the record: but mere "want of form in words, and not in substance," will not do2. Nothing can be assigned for error which contradicts 23 Eliz. c. 3, the record; because the records of a court are of such credit, that s. 2. they can only be defeated by matters of equal solemnity; and, therefore, even if the circumstances assigned for error could be ever so clearly proved by witnesses, yet such evidence is inadmissible. Where force or fraud have been used in obtaining a fine or recovery, the court of Chancery will relieve against it, as it would in the case of any other assurance. In such a case, the court does not set aside the fine or recovery, but treats the persons who take estates under the fine or recovery so obtained as trustees for the parties who have been defrauded, and directs re-conveyances of the land accordingly. Thus, in Woodhouse v. Brayfield3, a 12 Vern. 307. person prevailed on a woman to levy a fine and execute a deed declaring the uses thereof to himself and his heirs. It being proved that the woman, at the time of levying the fine, declared that she must make use of some friend's name in trust for herself; and she having afterwards declared, that she only levied the fine for the better enabling herself to dispose of her estate, and having devised it to J. S., subject to the payment of her debts: the court of Chancery decreed, not only that the lands were liable to the payment of her debts, but also that the person to whose use the fine was declared should convey the houses to J. S. according to the will. So, where a person who was deaf and dumb suffered a common recovery of entailed lands, assisted by his uncle, and then settled the same to certain uses; although it did not appear that the recoveror had done any thing but what, in conscience, he ought to have done; yet, being under these circumstances, the Lord Chancellor thought he ought to be taken care of in equity; and it appearing the uncle was concerned in interest, the settlement was set aside: but had he been assisted by an able and faithful relation, that was not interested, equity would not have relieved him in so reasonable an act as this appeared to be. So, on the other hand, where a person is prevented from levying a fine or suffering a recovery, by Ferres, 2 Ab. force and management, equity will compel the parties to act as if Eq.695. the intended assurance had been completed. Thus, where Lord Waltham, being tenant in tail, and meaning to suffer a common Ferres v. |