Recovery

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 ant 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.

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 collection 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 express the possession of a right of action under 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 plaintiff when he seeks to recover a thing or a right. 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. Bacon, Tracts 148. Common recoveries are considered as mere forms of conveyance or common assurances: although a common recovery Is a fictitious suit, yet tho 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, should sue out a writ or prcecipe against the tenant of the freehold; whence such tenant is usually called the tenant to the praecipe. In obedience to tins 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, vocciti Oj 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 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 conseof which it is thb ment 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 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, tit. 36; 2 Wms. Saund. 42, n. 7; 4 Kent 4S7; Pigot, Comm. Rec. passim. See Chall. Real P. 279; Big. Estop. 418. 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 Judicxaires de VAngleterre, tom. ii. p. 221, points out what appears to him ‘the absurdity of a common recovery. See Lyle v. Richards, 9 S. & R. (Pa.) 330; Sharp v. Thompson, 1 Whart. (Pa.) 151; Stump v. Findlay, 2 Rawle (Pa.) 168, 19 Am. Rep. 632; Dudley v. Sumner, 5 Mass. 438; Carroll’s Lessee v. Maydwell, 3 Harr. & J. (Md.) 292. Recovery Back — of money paid by mistake. The right to recover excessive payments made to public service corporations depends upon whether or not the payments are made under such circumstances as to be involuntary, and when payment is made under protest, this is sometimes termed “duress of goods” and may be recovered; Mt. Pleasant Mfg. Co. v. R. Co., 106 N. C. 207, 10 S. E. 1046; Southwestern Alabama Ry. Co. v. Maddox & Son, 146 Ala. 539, 41 South. 9; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; but, it seems, a shipper may, if he chooses, refuse to pay the over-charge and recover damages for the delay; Loomis v. Ry. Co., 17 Mo. App. 340. An illegal license fee cannot be recovered back if voluntarily paid; Garrison v. Tillinghast, 18 Cal. 408, but it may be, if involuntarily paid; Magnolia v. Sharman, 46 ArK. 358; Neumann v. La Crosse, 94 Wis. 103, 68 N. W. 654; Harvey v. Olney, 42 111. 336; whereas, payment in excess of amount constitutionally chargeable, for a license fee imposed under an unconstitutional ordinance, may be recovered back; C. & J. Michel Brewing Co. v. State, 19 S. D. 302, 103 N. W. 40, 70 L. R. A. 911. An agent paying his principal's money, by mistake, to a third person, may maintain an action in his own name to recover it back; Parks v. Fogleman, 97 Minn. 157, 105 N. W. 560, 4 L. R. A. (N. S.) 363, 114 Am. St. Rep. 703. Where overpayment is made in ignormel v. Flores (Tex.) 39 S. W. 309; Gooding v. Morgan, 37 Me. 419; Pool v. Allen, 29 N. C. 120; Ashley v. Jennings, 48 Mo. App. 142; Jackson v. Mc Knight, 17 Hun (N. Y.) 2. Where one employed a printer to print a libellous pamphlet and paid him £50 and the printer set up the type and then refused to publish it because libellous, it was held that there could be no recovery back; 23 T. L. R. 575. Money paid out by an officer under a misconstruction of law may be recovered back; U. S. v. Saunders, 79 Fed. 407, 24 C. C. A. 649. Parties receiving moneys illegally paid by a public officer are liable, ex wquo et bono, to refund them; Wisconsin Cent. R. Co. v. U. S., 164 U. S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399. See Protest; Repetition; Quasi-Con-

In Its most extensive sense, a recovery is the restoration or vindication of a right existing in a person, by the formal judgment or decree of a competent court, at his instance and suit or the obtaining, by such judgment, of some right or property which has bcen taken or withheld from him. This is aiso called a "true" recovery, to distinguish it from a "feigned" or "common" recovery. See Common Recovery.

— Final recovery. The final judgment in an action. Also the final verdict in an action, as distinguished from the judgment entered upon it Fisk v. Gray, 100 Mass. 193; Count Joannes v. Pangborn. 6 Alien (Mass.) 243.

1. A true recovery, the recovery of a thing or its value by judgment in court. 2. A feigned recovery, or Common recovery: a method by which a tenant in tail conveyed his estate in fee simple; the recoveror, the person to whom it was to be conveyed, bringing a pracipe quod reddat against the tenant, who defended his title by vouching [calling] a man of straw to warrant, asserting that the latter had conveyed to him; and upon the default of the vouchee (usually the court crier, the common vouchee), which always happened after leave was given the recoveror to imparl with him, the recoveror had judgment against the tenant, who in turn had a nominal remedy that he recover lands of equal value from the vouchee. A recovery by double voucher was where the estate was first conveyed to some indifferent person, the tenant to the praecipe, against whom the pracipe was brought, and who vouched the real tenant, who in turn vouched the common vouchee.

A recovery in its most extensive sense, is the restora. tion of a former night, by the solemn judgment of a court of justice. 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 favour of the plaintiff when he seeks to recover a thing or a right. A common recovery is a judgment 332 REC consequence of a default made by the person who is last vouched to warranty in such suit. Bac. Tracts, 148. Common recoveriesare 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, should sue out a writ or precipe, against the tenant of the freehold; whence such tenant is usually called the tenant to the pracipe. In obedience to this writ the tenant appears incourt, 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 defence of the land. The demandant 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 voughee 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 REC recoverer, to recover the lands ia 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 ealled the recompense of recovery in value; but as it is customary for the crier of the cour, 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. 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 estates for the purpose of breaking the entail of estates. Vide, generally, Cruise, Dig. tit. 36; 2 Saund. 42, n. 7; 4 Kent, Com. 487;. Pigot on Common Recoveries, passum. 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 de ]’Angleterre, tom. 11. p. 221, points out what appears to him the absurdity of a common recove