by it. Yet where a ſtranger, whoſe preſumption cannot thus be puniſhed, officiouſly interferes in an eſtate which in no wiſe belongs to him, his fine is of no effect; and may at any time be ſet aſide (unleſs by ſuch as are parties or privies thereunto[1]) by pleading that "partes finis nihil habuerunt." And thus much for the conveyance or aſſurance by fine: which not only like other conveyances binds the grantor himſelf, and his heirs; but alſo all mankind, whether concerned in the transfer or no, if they fail to put in their claims within the time allotted by law.
IV. The fourth ſpecies of aſſurance, by matter of record, is a common recovery. Concerning the original of which, it was formerly obſerved[2], that common recoveries were invented by the eccleſiaſtics to elude the ſtatutes of mortmain; and afterwards encouraged by the fineſſe of the courts of law in 12 Edw. IV. in order to put an end to all fettered inheritances, and bar not only eſtates-tail, but alſo all remainders and reverſions expectant thereon. I am now therefore only to conſider, firſt, the nature of a common recovery; and, ſecondly, it's force and effect.
1. And, firſt, the nature of it; or what a common recovery is. A common recovery is ſo far like a fine, that it is a ſuit or action, either actual or fictitious: and in it the lands are recovered againſt the tenant of the freehold; which recovery, being a ſuppoſed adjudication of the right, binds all perſons, and veſts a free and abſolute fee-ſimple in the recoveror. A recovery therefore being in the nature of an action at law, not immediately compromiſed like a fine, but carried on through every regular ſtage of proceeding, I am greatly apprehenſive that it's form and method will not be eaſily underſtood by the ſtudent, who is not yet acquainted with the courſe of judicial proceedings; which cannot be thoroughly explained, till treated of at large in the third book of theſe commentaries. However I ſhall endeavour to ſtate it's nature and progreſs, as clearly and conciſely as I can; avoid-
