Definition
A double voucher was a procedural maneuver used in a common recovery — a fictitious lawsuit employed in English common law to bar an entailed estate and convert it into a fee simple. It occurred when the person first vouched to warranty (typically an "indifferent person" to whom a freehold estate had been conveyed for this purpose) came into court, admitted the warranty, and then vouched a second person — the tenant in tail — who in turn vouched over the common vouchee (a court crier or other nominal party).
The mechanics worked as follows: Rather than bringing the writ of praecipe directly against the tenant in tail, the recovery was first directed against a neutral third party who had received a nominal freehold. That party, when called to warrant the title, vouched the tenant in tail, who then vouched the common vouchee. The judgment ultimately ran against the common vouchee, who was judgment-proof, but the recovery itself effectively barred the entail and all remainders.
The reason this elaborate two-step was necessary rather than a direct recovery against the tenant in tail is substantive: a recovery brought immediately against a tenant in tail barred only the estate in the specific premises of which that tenant was then actually seised. A double voucher, by contrast, extended the bar to all property the tenant in tail held in tail — including after-acquired entailed estates — because the tenant in tail was brought in as vouchee rather than as the primary defendant, and it was in that capacity that the bar operated most broadly.
Common Confusion
Double voucher is easily confused with single voucher. In a single voucher recovery, the writ ran directly against the tenant in tail, who then vouched the common vouchee. This was simpler but carried the limitation noted above: it barred only the particular estate then held. The double voucher was the preferred form precisely because of its broader effect. Researchers encountering a common recovery in historical records should determine whether one or two vouching steps appear, as the distinction directly affects what property was barred and what future interests were extinguished.
Why It Matters in Research
Double voucher is an extinct procedural term, but it appears with some regularity in English and American historical legal records from roughly the 13th through the early 19th centuries. Researchers working with conveyancing documents, title chains, equity pleadings, or property disputes from the colonial and early national periods will encounter references to common recoveries, and the presence of a double voucher signals a deliberate effort to accomplish a broad bar of an entail rather than a narrow one.
The term disappeared from practical use in England after the Fines and Recoveries Act 1833 abolished common recoveries entirely as a method of barring entails. In American jurisdictions, entails were largely abolished by statute in the revolutionary era, so the double voucher had little practical purchase in American law even before 1833. However, title searches involving colonial-era land grants, particularly in the mid-Atlantic and southern states where entails persisted longer, may require understanding what a double voucher accomplished and what it did not.
A trap in historical sources: the word "voucher" appears in contexts entirely unrelated to common recoveries (see RELATED TERMS), and researchers may misread a double voucher reference as pertaining to warranty of title in a more general sense. The distinguishing marker is always the presence of a common recovery proceeding and the sequential vouching structure.
Historical Dictionary Support
The four source dictionaries are in close agreement on the mechanics and purpose of double voucher, which reflects the term's settled and technical nature. Burrill offers the most compressed definition — "a voucher over; a voucher by a party who had himself been vouched" — which is accurate but requires background knowledge of common recoveries to be useful. Black's and Rapalje & Lawrence provide the most complete explanations, including the critical functional point about why a double voucher was preferred: the broader bar of the entail. Bouvier adds the useful clarification that the necessity for double voucher arises specifically when the tenant in tail is not the tenant in the writ but is instead a tenant by warranty.
None of the historical dictionaries address the American reception or rejection of double voucher, and none note the 1833 English statutory abolition — a gap that matters for researchers trying to establish the operative period of these instruments.
Jurisdictional Note
Double voucher was a creature of English common law and had its primary application in English courts. American use was limited by the early statutory abolition of entails in most states. Virginia abolished entails in 1776; most other states followed in the revolutionary period. Researchers should not assume double voucher was operative or effective in any given American jurisdiction without first confirming that entails were recognized there at the relevant time.
Encyclopedia Cross-Reference
No Law Mind Encyclopedia entry directly addresses common recoveries or double voucher. The matched entries — on double jeopardy and voucher programs — share vocabulary but are unrelated in substance, and cross-reference is not warranted.