The reversion intended by this act must not be a condition, or Receit by repossibility merely. (a) The tenants upon whose default, &c. the reversioner may be received, are tenants in dower, by the curtesy, after possibility of issue extinct, or any other tenant for life, but not a tenant in tail. (b) It has been already said, that the reversioner may be received on the feint pleader of the tenant, by stat. 13 R. 2, c. 17. (c) versioner. mor. Although at the time of the statute of Gloucester being pass- Receit by tered, by which termors may be received, there was no tenancy by statute merchant, statute staple, or elegit, yet those tenants are held to be within the statute; but not so a guardian in chivalry, for he does not come in by the contract of the parties, but merely by the act of law. (d) A termor, to be received, must by the express words of the act be by deed; but under the statute 21 Hen. 8, c. 15, tenant for years without deed may falsify. (e) This statute extends to the default, or render, or nient dedire of the tenant, or of a vouchee, but not to false pleading (ƒ); even though the termor be a party to the writ he may be received.(g) It is enacted by the statute of Gloucester, that if the recovery be found to be upon good right, judgment shall be forthwith given; but if it be found by fraud to cause the termor to lose his term, the termor shall enjoy his term, and the execution of the judgment for the demandant shall be suspended, until the term be expired. It has been doubted in whom the reversion resides during the continuance of the term. Sir Edward Coke says, that the lessor and his heirs have the reversion, and shall have the rent, and punish waste (), but according to Fitzherbert, J. the possession of the termor is the possession of the recoveror, and if the former be ousted, the latter shall have assise. (i) The decision of the judges in Shelley's case, confirms the opinion of Sir Edward Coke. (k) In what actions receit lies. At what period Receit lies in general in all real actions, in which the reversioner or remainderman, on the default, or false pleading of the particular tenant, may be put out of his reversion or remainder; or where the wife, by the default of her husband, would lose seisin of her inheritance, or where a termor would be ousted of his term. (a) In the writ of waste, the same difficulty occurs with regard to receit, which has been already noticed in speaking of default in that action (b), viz. whether in case of a default upon the distringas, as a writ issues to inquire de vasto facto, and a verdict of twelve men passes, the plaintiff can be said to recover by default. The better opinion appears to be, that receit will lie in such a case (c); and it seems the wife should pray to be received before writ of inquiry awarded. (d) In assise also, the same difficulty occurs, because on the default of the husband, the assise shall be taken by the recognitors; but in this case as well as in waste, the wife may be received, and the reason given is, because when the assise is taken in this manner by default, the husband and wife lose their challenges to the jury (e), but the wife should, it is said, pray to be received before the assise is awarded by default. (ƒ) The reversioner cannot be received in assise, unless he is a party to the writ; and he also, as it is said, should pray to be received before the assise awarded by default. (g) The authorities on the point of receit lying after the assise taken by default, are exceedingly conflicting. Receit also lies in a writ of mesne (h); for the feme in quare impedit against baron and feme, for this action savours of the realty (i); in a writ of entry, in nature of an assise (k), and in a scire facias to have execution of damages recovered in an assise. (1) Many contradictory decisions and opinions occur on the quesof the proceed- tion of the period at which a party can be received after default ings receit lies. in real actions. Both in the case of a feme covert, and of a re (a) Vin. Ab. Resceipt, (F.) (g) 2 Rol. Ab. 437, l. 26. Br. Resceit, (b) Vide in Quod ei deforceat, ante, 71, 98. But see 2 Rol. Ab. 439, 1. 34. 2 p. 134, and Deceit, p. 137. Inst. 343, and 11 Rep. 39, a. (c) Co. Litt. 355, b. Br. Ab. Resceit, 61, 116. 2 Rol. Ab. 437, L. 5. (d) Br. Ab. Resceit, 4, 26. (e) Br. Ab. Resceit, 125. Gregory's case, 2 Leon. 9. (ƒ) Br. Ab. Assise, 299, Resceit, 4, 71, but see Metcalf's case, 11 Rep. 39, a. (h) 2 Rol. Ab. 437, l. 31. (i) Ibid. 1. 43. (k) Ibid. 1. 7. (1) Ibid. 1. 48. 2 Inst. 470, and see other actions in which Receit lies. 19 Vin. Ab. Resceipt, (F.) versioner the receit is by the statute directed to be after default At what period and before judgment. With regard to the first point, the autho- of the proceedings receit lies. rities differ as to the necessity of the party praying to be received on the first opportunity after the default, and with regard to the latter, as to what shall be considered a judgment. Before the wife can be received for the default of her husband, there must be a default incurred, upon which the land would be lost, were not the wife received. (a) Thus in a præcipe quod reddat against husband and wife, if they make default at the summons, the wife cannot be received (b), because another default must be incurred, viz. at the return of the grand cape, before the demandant can have judgment of seisin, and this is the proper time for her to pray to be received on the default of her husband before appearance (c); and so after appearance she may be received at the return of the petit cape, and where a petit cape ought to issue, she must wait until it is returnable before she can be received. (d) If baron and feme make default after default, and a stranger comes and says that the feme was tenant for life, reversion to him in fee, and prays to be received, and is received, and afterwards makes default after default, the feme cannot be received, for she then comes too late. (e) He in reversion, or remainder, must, by the words of the statute of Westminster 2, pray to be received, after the default of the particular tenant, and before judgment. The regular time therefore for the reversioner to pray to be received, is on the return of the grand cape before appearance, or of the petit cape after appearance, when he prays to be received on account of the tenant's default; but it seems, that if the reversioner suffers two or three days to elapse, after the return of the process, yet if he comes before judgment, and before any adjournment, or act of the court, it is sufficient. (ƒ) If lessee for life prays aid of him in reversion, who upon summons makes default, and afterwards the lessee makes default, the reversioner may be received notwithstanding the first delay (g), (a) 2 Rol. Ab. 488, I. 33. Vin. Ab. Resceipt, (I). (6) 2 Rol. Ab. 438, 1. 39. (c) 2 Rol. Ab. 438, I, 41. (d) Ibid. 1. 35. Br. Resceit, 66. With regard to the time at which the wife shall be received in assise, vide Br. Ab. Assise, 24, 45, 48, 210. Resceit, 105. 2 Inst. 343. Metcalf's case, 11 Rep. 59, a. Ante, p. 290. (e) 2 Rol. Ab. 446, l. 12, and see more of receipt by feme covert, 2 Rol. Ab. 440. Vin. Ab. Resceipt, (L). (ƒ) 2 Rol. Ab. 439, 1. 46. Br. Ab. Resceit, 46. (g) 2 Rol. Ab. 438, l. 52. Receit by feme. By reversioner. At what period of the proceed ings receit lies. Shewing cause of receit. and so after aid granted, and joinder and pleading of him in reversion, if the tenant makes default (a); and where the reversioner, upon aid-prayer, joined and pleaded, and afterwards made default himself, and then came and prayed to be received, it was granted, though upon his own default. (b) So if the reversioner is vouched, and makes default upon the summoneas ad warrantizandum, and the lessee also makes default at the return of the grand cape ad valentiam, if the lessee again makes default at the return of the petit cape, the reversioner may be received notwithstanding his prior default (c); and after default by baron and feme, and receit of the feme, and default by her, another person may come and say, that the feme has nothing in reversion, but only for term of life, the reversion to him, and may pray to be received. (d) In a præcipe quod reddat against tenant for life, in which issue is joined, if the tenant makes default at nisi prius, the reversioner may be received at the day in bank, although he do not proffer himself at nisi prius, because a petit cape is to be awarded. (e) But, though the judge at nisi prius has no power to allow the receit, yet it is said to be the safest way to pray it there. (ƒ) And in a writ of waste it seems that the reversioner should pray to be received at nisi prius upon a default there.(g) When the reversioner prays to be received for the false pleading of the tenant, the words of the statute are, that when he prays to be received to defend his right, at the day that the tenant pleads to the action, or before, he shall be received. The reversioner therefore cannot in such case pray to be received, after the time, when the tenant ought to have pleaded. (h) When a party prays to be received, it should appear to the court, that he has a right to such indulgence, and therefore in some cases it is necessary that he should shew cause, that is, set out a title in himself, and shew his connexion with the premises in dispute. When a feme covert prays to be received for the default of her husband, she is a party to the action, and the (a) Ibid. 439, 1. 9. (b) Br. Ab. Default, 101, but if tenant for life pray aid of him in reversion, who refuses to join, he cannot afterwards be received, 2 Inst. 345. (c) 2 Rol. Ab. 439, l. 3. (d) Br. Ab. Resceit, 39. (e) 2 Rol. Ab. 439, 1. 22; but quære whether he can be received before the return of the petit cape, Ibid. 438, 1. 35. Ante, p. 291. Moor, 29. (f) 2 Inst. 343. (g) 2 Rol. Ab. 459, 1. 33. Ante, p. 290. (h) Br. Ab. Resceit, 98. Per Brooke. of receit. demandant has acknowledged her to be tenant of the land, by Shewing cause bringing a præcipe against her. receit. Whenever a person prays to be received, who ought not to Counterplea of be received, the demandant may counterplead the receit. The most usual counterplea is that the reversioner or remainderman had nothing in the reversion or remainder, at the day of the writ purchased, or after. (g) So nothing in the reversion generally is a good counterplea, but nothing in the reversion at the day of the writ purchased is not sufficient, because, as we have seen, a man may be received on a reversion conveyed to him, pendente brevi. (h) It is said to be a good counterplea, that he who prays to be received has granted the reversion over to another, pending the writ (i), the reason seems to be because the grantee of the reversion might pray to be received. If a man prays to be received on account of a remainder limited to him, it is a good counterplea to say that the remainder was limited to him and his wife. (k) It seems doubtful whether the demandant can counterplead the lease or only the reversion, though upon principle it should seem that he may counterplead either. (The demandant may confess, and avoid the prayer of receit; thus he may say that before the lease, the prayor disseised the demandant, and after leased to the tenant upon (a) 2 Inst. 345. See entry of receit of wife on default of husband at nisi prius, Rast. Ent. 581, b. Co. Ent. 173, a. (b) 2 Inst. 345. See entry of receit of reversioner on feint pleader of the tenant. Rast. Ent. 581, a. and more as to shewing cause of receit. Vin. Ab. Resceipt, (R. 2). (c) Co. Ent. 173, b. (d) Co. Ent. 175, b. 168. Com. Dig. Resccipt, (A 1). (h) 2 Rol. Ab. ut sup. Ante, p. 288. (k) 2 Rol. Ab. 444, l. 13. (1) 2 Rol. Ab. 444, 1. 3. Br. Count. de Res. 1, but see Ibid. 3. Fitz. Ab. Resc. 80. See in aid-prayer, ante, p. (e) Williams and Drew's case, 3 Leon. 279. |