Recovery in United States

Recovery Definition

The restoration of a former right, by the solemn judgment of a court of justice. 3 Murph. (N. C.) 169. 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 suit suit. Bac. Tr. 148. A true recovery, usually known by the name of “recovery” siniply, 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. 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, shall sue out a writ or praecipe against the tenant of the freehold; when 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 vocatio,” 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 defense of the land. The defendant then desires leave of the court to imparl, or confer with the vouchee in private, which is granted of course. Soon after the demandant 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 be, 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. 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 pretense 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. See, generally. Cruise, Dig. tit. 36; 2 Wm. Saund. 42, note 7; 4 Kent, Comm. 487; Pigot, Comm. Rec. passim. 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 Judiciares de I’Angleterres (torn. ii. p. 221), points out what appears to him the absurdity of a common recovery. As to common recoveries, see 3 Serg. & R. (Pa.) 435; 9 Serg. & R. (Pa.) 330; 1 Yeates (Pa.) 244; 4 Yeates (Pa.) 413; 1 Whart. (Pa.) 139, 151; 2 Rawle (Pa.) 168; 6 Pa. St. 45; 2 Halst. (N. J.) 47; 5 Mass. 438; 6 Mass. 328; 8 Mass. 34; 3 Har. & J. (Md.) 292.

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Legal Issue for Attorneys

The restoration of a former right,
by the solemn judgment of a court of justice. 3 Murph. (N. C.) 169. 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 suit suit. Bac. Tr. 148. A true recovery, usually known by the name of “recovery” siniply, 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. 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, shall sue out a writ or praecipe against the tenant of the freehold; when 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 vocatio,” 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 defense of the land. The defendant then desires leave of the court to imparl, or confer with the vouchee in private, which is granted of course. Soon after the demandant 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 be, 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. 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 pretense 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. See, generally. Cruise, Dig. tit. 36; 2 Wm. Saund. 42, note 7; 4 Kent, Comm. 487; Pigot, Comm. Rec. passim. 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 Judiciares de I’Angleterres (torn. ii. p. 221), points out what appears to him the absurdity of a common recovery. As to common recoveries, see 3 Serg. & R. (Pa.) 435; 9 Serg. & R. (Pa.) 330; 1 Yeates (Pa.) 244; 4 Yeates (Pa.) 413; 1 Whart. (Pa.) 139, 151; 2 Rawle (Pa.) 168; 6 Pa. St. 45; 2 Halst. (N. J.) 47; 5 Mass. 438; 6 Mass. 328; 8 Mass. 34; 3 Har. & J. (Md.) 292.

This definition of Recovery is based on The Cyclopedic Law Dictionary. This entry needs to be proofread.

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