PART

IV.

an action on the case against an under-sheriff for not executing a bill of sale to a trustee for the plaintiffs, of certain goods seized by him under a fieri facias at the suit of the plaintiffs, it was held that a rule of Court giving spe- Effect of, in cific relief to the plaintiffs, by ordering a former bill of evidence. sale to be cancelled, and the present bill of sale to be executed, was a bar to the action under the plea of not guilty, on the broad ground that a man should not be permitted to pursue a second recompense (ƒ).

So it has been held that under the plea of nonassumpsit, a garnishee against whom a recovery and execution have been had in the Mayor's Court, in foreign attachment, after the issuing of a summons to the * defendant below, and nihil and non-inventus returned, may 1283 protect himself by giving the proceedings in evidence on an action to recover the same debt (g), and that it was not necessary for him to prove the debt of the plaintiff below, who attached the money in his hands. Even an award made by an arbitrator, to whom the parties have referred the question in dispute, is final under the plea of the general issue to an action of assumpsit (h).

As an award made by the referee of the parties is conclusive evidence under the general issue, the record of a verdict and judgment must in principle be equally operative; and, in general, from the establishment of the rule, that a release, accord and satisfaction, or the merger of a simple contract debt in a higher security, is evidence in bar under the general issue in an action on the simple contract (i); it seems also to follow in principle, that a judgment for the recovery of the same debt, especially if execution has followed, or a judgment for the defendant, for the same cause of action, are equally admissible; such evidence would no more take a plaintiff by surprize, than evidence of a release would, for he is equally privy to both, and a judgment of a court of competent jurisdiction shows that the debt does not exist.

(f) Note, that part of the rule was, that all further proceedings should be stayed. It was also held that an action ought to have been brought against the high sheriff.

(g) Macdaniel and another v. Hughes, 3 East, 367. And see 1 Will. Saund. 67, a. and the cases there cited.

(h) Price v. Hollis, 1 M. & S. 105.

(i) Com. Dig. tit. Pleader, 2 G. 12. Cro. Eliz. 201. 5 Mod. 314. Cro. Jac. 33. Cro. Car. 415. B. N. P. 182.

PART

IV.

Recovery.

Presumptive evidence of surrender of life estate.

RECOVERY.

*

In general, where the party suffering a recovery had * 1284 power to suffer it, it is to be presumed that all things were regularly done till the contrary appear (a). In such case it is sufficient to produce and prove an examined copy of the recovery (b). But where the party suffering the recovery had no title in himself, being but a remainder-man, or reversioner; or if there be evidence to show that there was at the time of the recovery an estate for life in another, then a surrender by the tenant for life, in order to make a tenant to the præcipe, ought to be proved (c), either directly, by proof of actual seisin, or of the deeds by which he is made a freehold tenant, or by presumptive evidence. Where the freeholder is a trustee for the tenant in tail himself, acting under his power and direction, such a presumption (d) arises.

So the presumption may be founded on the acquiescence of those who were interested in disputing the validity of the recovery, and who have had opportunity to dis-. pute it (e).

Where a recovery has been suffered by a tenant in tail, during the existence of the estate for life, and possession has long gone according to the recovery, a surrender of the life-estate is to be presumed (f). This presumption cannot * 1285 however be made where the title is disputed recently after the death of the person who was entitled to hold, without the aid of the recovery (g). If there be tenant for life, with remainder in fee, and he in remainder suffer a reco

(a) 2 Burr. 1065. But if the deeds be produced, and it appear that there was in fact no good tenant to the præcipe, the presumption is destroyed. Earl of Suffolk's case, 1747, cited 2 Burr. 1073. See the case of Lincoln College, 3 Co. 58. Keen v. The Earl of Effingham, 2 Str. 1267, where the question was (20 Geo. 2.) as to the validity of two recoveries suffered in 1714 and 1721, when the Court held, that, although after such a lapse of time proper tenants to the præcipe would be presumed where no deed appeared, yet these being insufficient, they could not presume that there were others which were good. Sed quære.

(b) Cro. Jac. 455; Lutw. 1549; 1 Mod. 117.

(c) 5 Mod. 211.

(d) Per Lord Mansfield, 2 Burr. 1073.

(e) Ibid.

(f) Goodtitle d. Bridges v. Duke of Chandos, 2 Burr. 1065. Bac.

Abr. Ev. F.

(g) Ibid.

very, with a single voucher, if the recovery have been ancient, and there has been constant enjoyment under the recovery, the Court will presume a surrender by the tenant, so as to make a lawful tenant to the præcipe (h).

But the length of time on which such a presumption is founded is to be reckoned not from the date of the recovery, but from the period when possession began to go according to the recovery (i). If, therefore, after the recovery suffered by a tenant in tail, the tenant for life remain in possession for more than thirty years afterwards, the length of time does not begin to run until the death of the tenant for life (k).

PART

IV.

Presumption of surrender of life estate.

And it seems, therefore, that no presumption can be made from mere length of time after the recovery suffered, unless there be some circumstance of enjoyment, and acquiescence under the recovery, or other evidence to show that a recovery has in fact been suffered; for otherwise there is no ground to build a presumption upon. For instance, if an eldest son, who has a remainder in tail, should privately suffer a recovery, and his father should live many years afterward, there would be no pretence for presuming a surrender of the father's life-estate (). But although a possession by a tenant in tail, after the death of the tenant for life, may be ascribed to the tenancy in tail, *as.well as * 1286 to a recovery previously suffered, yet, after a long posses sion by the tenant in tail, the presumption ought, it seems, to be made; for it is probable, from the acquiescence of the tenant in tail under his former recovery, that he knew that it was not defective (m).

In the case of Warren d. Webb v. Grenville (n), where a recovery had been suffered by a son who was tenant in tail forty years before, the estate for life being then in the widow, the Court expressly held that a surrender was to be presumed from mere lapse of time, without taking into consideration the circumstantial evidence, tending strongly to prove that a surrender had in fact been made, viz. the proof of the debt-book of a deceased attorney, in which he charged 321. for suffering the recovery, two articles of

(h) Anon. i Vent. 257. S. C. reported differently by the name of Green v. Froud, 3 Keb. 310, 311; and by the name of Green v. Proud, 1 Mod. 117.

(i) 2 Burr. 1065.

(k) Goodtitle d. Bridges v. Duke of Chandos, 2 Burr. 1065,

(1) Per Ld. Mansfield, 2 Burr. 1076.

PART
IV.

surrender of

life estate.

which were for drawing and ingrossing a surrender by the mother, and in which the bill was acknowledged to have been paid. From this declaration of the Judges, therePresumption of fore, it should seem as if mere lapse of time, even during the life of the tenant for life, would warrant the presumption. This, however, is qualified and limited by Ld. Mansfield's account of the case, in Goodtitle d. Bridges v. The Duke of Chandos (o); from which it appears, that the report of Warren v. Grenville, in Strange, is defective, in not stating the important fact, that the jointress (the tenant for life) had been dead a vast number of years; a circumstance which reconciles the declaration of the Court in Warren v. Grenville, as applied to that case, with the doctrine expounded in Goodtitle d. Bridges v. The Duke of Chandos (p).

* 1287

Statute 14

s. 1 & 2.

*By the stat. 14 Geo. 2. c. 20, it is enacted, that all common recoveries suffered, or to be suffered, without any Geo. II. c. 20, surrender of the leases for life, shall be valid, provided that it shall not extend to make any recovery valid, unless the person entitled to the first estate for life, or other greater estate, (in case there be no such estate for life in being,) next after the expiration of such lease, have or shall convey, or join in conveying, an estate for life, at least, to the tenant to the præcipe.

By sect. 4, in favour of purchasers, where, by neglect, recoveries have not been entered of record, it is enacted, "That where a person shall have purchased any estate for a valuable consideration, whereof a recovery was necessary to complete the title, he, and those claiming under him, having been in possession, may, at the end of twenty years from the time of such purchase, produce in evidence the deed, &c. making a tenant to the writ of entry, &c. for suffering a common recovery, and declaring the uses, &c.; and such deeds (the execution being duly proved) shall be deemed good evidence for the purchaser, &c. that such recovery was duly suffered, and perfected according to the purport of such deed, &c. in case no record can be found, or the same should be found not to be regularly entered;

(0) 2 Burr. 1065.

(p) In the case of dame Griffin v. Stanhope, (Cro. J. 455,) the Court intended the recovery to be good; but it appears, that possession had gone along with the recovery. In 2 Lutw. 1549, at the end of the case of Leigh v. Leigh, it is laid down, that in every common recovery it shall be intended that there was a good tenant to the præcipe till the contrary appear; this, however, it seems, was but the reporter's own speculation, and not an adjudication of the Court.

provided the person making such deeds, &c, had a sufficient estate and power to make a tenant to such writ."

PART

IV.

Geo. II. c. 20.

And by the 5th sect. of the same act, it is enacted, "That after twenty years from the time of suffering, all Statute 14 common recoveries shall be deemed good and valid to all intents and purposes, if it appear upon the face of such recovery that there was a tenant to the writ; and if the person joining in such recovery * had a sufficient estate, and power to suffer the same, notwithstanding the deed or deeds for making the tenant to such writ should be lost, or not appear."

This act applies to those cases only where the party who suffered the recovery had a sufficient estate to enable him to do so, and does not alter the rules of evidence as to recoveries suffered by tenants in tail, during the existence of the estates for life. Where, therefore, the party suffering the recovery had no power to suffer it, but only an estate-tail, or remainder expectant on the death of the tenant for life, it is essential to prove, either directly, by proof of the necessary deeds, or by presumptive evidence, that there was a good tenant to the præcipe (p).

It has been seen that a fine is proved by the production of the chirograph (9). It will be presumed that a fine has been levied with proclamations till the contrary be shown (r). But to prove that a fine has been levied with proclamations, it is necessary to produce and prove a copy, examined with the roll: the chirograph is insufficient for the purpose; for the chirographer is not authorized to make out copies of the proclamations (s).

In order to render a fine available, a seisin of the estate by the party who levied it is essential; but proof of possession, or of the receipt of rent, is prima facie evidence of seisin (t).

* 1288

THE plaintiff, in an action against a preceding incum- Dilapidations. bent for dilapidations, must, under the general issue, prove

his own title to the church, as in an action of ejectment (a).

(p) 5 Mod. 211.

(9) Supra, 566.

(r) Supra, 1242, (g).

(s) B. N. P. 129; supra, Vol. I. p. 154.

(t) Doe v. Williams, Cowp. 622. Supra, 567.

(a) See tit. Ejectment.-Presumption.-Quare Impedit.-Tithes.