TO RECOUPE. This word is derived¹ from the French recouper, to cut again. In law it signifies the right and the act of making a set-off, defalcation², or discount, by the defendant³, to the claim of the plaintiff. 21 Wend. It. 342. In another sense it signifies to recompense. 19 Ves. 123.

RECOVERER. The demandant in a common recovery, after judgment⁴ has been given in his favor, assumes the name of recoverer.

RECOVERY. A recovery, in its most extensive sense, is the restoration of a former right, by the solemn judgment of a Court of justice. 3 Murph. 169.

2. A recovery is either true or actual, or it is feigned⁵ or common. A true recovery, usually known by the name of recovery simply, is the procuring⁶ a former right by the judgment of a court of competent jurisdiction⁷; as, for example, when judgment is given in favor of the plaintiff when he seeks to recover a thing or a right.

3. A common recovery is a judgment obtained in a fictitious⁸ suit, brought against the tenant⁹ of the freehold, in consequence of a default made by the person who is last vouched¹⁰ to warranty¹¹ in such suit. Bac. Tracts¹², 148.

4. Common recoveries are considered as mere¹³ forms of conveyance¹⁴ or common assurances; although a common recovery is a fictitious suit, yet the same mode of proceeding¹⁵ must be pursued, and all the forms strictly¹⁶ adhered to, which are necessary to be observed in an adversary¹⁷ 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, would sue out a writ¹⁸ or praecipe against the tenant of the freehold; whence such tenant is usually called the tenant to the praecipe. In obedience¹⁹ 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 voucher²⁰ vocatia, 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 desires leave of the court to imparl, or confer with the vouchee in private, which is granted of course. Soon after the demand and 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 recom-pense 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 nominal²¹, 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 situated²²; 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 exigency²³ of the case may require, in which case there are several judgments²⁴ against the several vouchees.

5. Common recoveries were invented by the ecclesiastics²⁵ in order to evade²⁶ the statute²⁷ of mortmain by which they were prohibited from purchasing or re-ceiving under the pretence²⁸ of a free gift, any land or tenements²⁹ whatever. They have been used in some states for the purpose of breaking the entail³⁰ of estates. Vide, generally, Cruise, Digest, tit. 36; 2 Saund. 42, n. 7; 4 Kent, Com. 487; Pigot on Common Recoveries, passim.

6. All the learning in relation to common recoveries is nearly obsolete³¹, as they are out of use. Rey, a French writer, in hiswork, Des Institutions Judicaire del'Angleterre, tom. ii. p. 221, points out what appears to him the absurdity³² of a common recovery. As to common recoveries, see 9 S. & R . 330; 3 S. & R. 435; 1 Yeates, 244; 4 Yeates, 413; 1 Whart. 139, 151; 2 Rawle, 168; 2 Halst. 47; 5 Mass. 438; 6 Mass. 328; 8 Mass. 34; 3 Harr. & John. 292; 6 P. S. R. 45,