Page:Landholding in England.djvu/46

 obtained his crown by victory on the field of battle) had observed how little effect the many attainders for treason had on families during the civil war, when these families were protected by entails, so that their estates could be forfeited only for the life of the attainted holder. He therefore allowed Taltarum's treason case to be brought into court, when the decision of the judges established that "a common recovery could bar an entail."

Of these "common recoveries," Blackstone remarks:

""At present, I shall only say, that they are fictitious proceedings, introduced by a kind of pious fraud, to elude the statute de Donis, which was found intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal: and that these recoveries, however clandestinely begun, are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of conveyance &hellip; and even acts of parliament have by a side-wind countenanced and established them."—"Commentaries," II. 117."

The "pious fraud" was one of the most extraordinary of legal fictions. A, a tenant-in-tail, who wished to turn his estate into fee-simple, in order to obtain the power of bequest or alienation, would get someone, B, to bring an action against him for the recovery of the freehold, by claiming to be the true owner. A, instead of defending his title, would get a third person, C (generally someone who notoriously had no lands, lest A's natural heirs should try to recover from him), and put him forward as the person from whom, or from whose ancestors, A derived his title, and who had "warranted" A against all comers. B would then ask leave to "imparl" C—that is, to confer privately with him. But when B came back into court, it was to announce that C had "departed in contempt of the court"—that is, he had run away. Upon this, judgment would go by default against the claim of A, and the lands would be awarded to B as an estate in fee-simple; A and his heirs becoming entitled to a recompense of equal lands from C, by virtue of his supposed "warranty," because if C had not run away, a stranger would not have