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Bouvier's Law Dictionary, Revised 6th Edition (1856)

RECOVERY. A recovery, in its most extensive sense, is the restoration of a
former right, by the solemn judgment of a Court of justice. 3 Murph. 169.
2. A recovery is either true or actual, or it is feigned or common. A
true recovery, usually known by the name of recovery simply, is the
procuring a former right by the judgment of a court of competent
jurisdiction; as, for example, when judgment is given in favor of the
plaintiff when he seeks to recover a thing or a right.
3. A common recovery is a judgment obtained in a fictitious suit,
brought against the tenant of the freehold, in consequence of a default made
by the person who is last vouched to warranty in such suit. Bac. Tracts,
148.
4. Common recoveries are considered as mere forms of conveyance or
common assurances; although a common recovery is a fictitious suit, yet the
same mode of proceeding must be pursued, and all the forms strictly adhered
to, which are necessary to be observed in an adversary suit. The first thing
therefore necessary to be done in suffering a common recovery is, that the
person who is to be the demandant, and to whom the lands are to be adjudged,
would sue out a writ or praecipe against the tenant of the freehold; whence
such tenant is usually called the tenant to the praecipe. In obedience to
this writ the tenant appears in court either in person or by his attorney;
but, instead of defending the title to the land himself, he calls on some
other person, who upon the original purchase is supposed to have warranted
the title, and prays that the person may be called in to defend the title
which he warranted, or otherwise to give the tenant lands of equal value to
those he shall lose by the defect of his warranty. This is called the
voucher vocatia, or calling to warranty. The person thus called to warrant,
who is usually called the vouchee, appears in court, is impleaded, and
enters into the warranty by which means he takes upon himself the defence of
the land. The defendant desires leave of the court to imparl, or confer with
the vouchee in private, which is granted of course. Soon after the demand
and returns into court, but the vouchee disappears or makes default, in
consequence of which it is presumed by the court, that he has no title to
the lands demanded in the writ, and therefore cannot defend them; whereupon
judgment is given for the demandant, now called the recoverer, to recover
the lands in question against the tenant, and for the tenant to recover
against the vouchee, lands of equal value in recompense for those so
warranted by him, and now lost by his default. This is called the recompense
of recovery in value; but as it is, customary for the crier of the court to
act, who is hence called the common vouchee, the tenant can only have a
nominal, and not a real recompense, for the land thus recovered against him
by the demandant. A writ of habere facias is then sued out, directed to the
sheriff of the county in which the lands thus recovered are situated; and,
on the execution and return of the writ, the recovery is completed. The
recovery here described is with single voucher; but a recovery may, and is
frequently suffered with double, treble, or further voucher, as the exigency
of the case may require, in which case there are several judgments against
the several vouchees.
5. Common recoveries were invented by the ecclesiastics in order to
evade the statute of mortmain by which they were prohibited from purchasing
or receiving under the pretence of a free gift, any land or tenements
whatever. They have been used in some states for the purpose of breaking the
entail of estates. Vide, generally, Cruise, Digest, tit. 36; 2 Saund. 42, n.
7; 4 Kent, Com. 487; Pigot on Common Recoveries, passim.
6. All the learning in relation to common recoveries is nearly
obsolete, as they are out of use. Rey, a French writer, in his work, Des
Institutions Judicaire del'Angleterre, tom. ii. p. 221, points out what
appears to him the absurdity of a common recovery. As to common recoveries,
see 9 S. & R. 330; 3 S. & R. 435; 1 Yeates, 244; 4 Yeates, 413; 1 Whart.
139, 151; 2 Rawle, 168; 2 Halst. 47; 5 Mass. 438; 6 Mass. 328; 8 Mass. 34; 3
Harr. & John. 292; 6 P. S. R. 45,

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