RECOVERY. The restoration of a former right, by the solemn judgment of a court of justice. Hoover v. Clark's Adm'r, 7 N. C. 169. See 28 L. J. C. P. 312 ; 8 Q. B. D. 470.
In its general use, recovery signifies a col lection of a debt by process and course of law. People v. Reis, 76 Cal. 269, 18 Pac. 309.
The phrase right of recovery is used to ex press the possession of a right Of action un der the existing facts.
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 plain tiff when he seeks to recover a thing or a right.
A common recovery is a judgment obtained in a fictitious suit, brought against the ten ant of the freehold, in consequence of a de fault made by the person who is last vouch ed to warranty in such suit. Bacon, Tracts 148.
Common recoveries are considered as mere forms of conveyance or common assurances: although a common recovery is a fictitious suit, yet the same modp 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 com mon recovery Is that the person who is to be the demandant, and to whom the lands are to be ad judged, shodld sue out a writ or prcecipe against the tenant of the freehold; whence such tenant is usually called the tenant to the prcecipe. In obe dience to this writ the tenant appears in court, ei ther 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 defence of the land. The defendant then desires
leave of the court to impart, or confer with the vouches In private, which is granted of course. Soon after the demandant returns into court, but the vouchee disappears or makes default, in conse quence 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 judg ment is given for the demandant, now called the re coverer, to recover the lands in question against the tenant, and for the tenant to recover against the vouches 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 Itabere facia& is then sued out directed to the sheriff of the county in which the lands thus recovered are sit uated; and on the execution and return of the writ the recovery is completed. The recovery hers de scribed is with single voucher ; but a recovery may be, and Is frequently, suffered with double, treble, or further voucher, as the exigency of may require, In which case there are several judgments against the several voucheee.
Common recoveries were Invented by the ec clesiastics in order to evade the statute of mort main, by which they were prohibited from purchas ing, 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. See, generally, Cruise, Digest, Mt. 36 ; 2 Wms. Saund. 42, n. 7; 4 Kent 487; Pigot, Comm. Rec. passim. See Chall. Real P. 279; Big. Estop. 418.