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of conveyance, by which tenant in tail is enabled to alien his lands.

II. WHO MAY SUFFER A COMMON RECOVERY.

A RECOVERY being now considered as a common assurance for the conveyance of lands from one person to another, it may be taken as a general rule, that all persons who are capable of executing a common law assurance in pais, are also capable of suffering a recovery to bar or pass the particular estate or interest which they may have in the lands comprised in the writ. But as many persons are disabled by physical or civil incapacities to convey their possessions by act in pais, so are they by common recovery. Thus, when recoveries were improved into a common way of conveyance, it was thought reasonable that those whom the law had judged incapable to act for their own interest, should not be bound by the judgment given in recoveries, though it was the solemn act of the court; for where the defendant gives way to the judgment, it is as much his voluntary act and conveyance, as if he had transferred the land by livery, or any other act in pais; and therefore if an infant suffers a recovery, he may reverse it, as he may a fine, by writ of error during his minority'. And this was formerly taken to be the law, as well where the infant appeared in person, as by guardian or by attorney; but now there is a distinction where he suffers a recovery in person, and where not. If in person, it is erroneous, and he may reverse it by writ of error during his minority, that his infancy may be tried by the inspection of the court, for at his full age it becomes obligatory and

• 2 Com. 358.

Buls. 235; 2 Rol. Abr. 395; Co. Lit. 381, b; 10 Co. 43; 2 Rol. Abr. 731, 742; Sid. 321, 322; Lev. 142;

VOL. IV.

LL

2 Saund. 94; Cro. Eliz. 471;
Hob. 196; Cro. Car. 307,
923; 5 Mod. 200; Pig. 64;
Cru. 182.

RECOVE
RIES.

RECOVE

RIES.

unavoidable (1): but, in some instances, the court has ad-
mitted the infant to appear by guardian, and to suffer a
recovery, or come in as vouchee; but this is seldom
allowed, and only upon emergencies, when it tends to the
improvement of the infant's affairs, or when lands of equal
value have been settled on him. Hence it was formerly
the practice, when an infant was intended to suffer a re-
covery, for him and his guardian to petition the king to
grant letters under the privy seal to the court of Common
Pleas, directing them to permit such infant to suffer a
recovery; which has some resemblance with the civil law,
where the imperial authority supplies the defect of legal
age. Upon producing this privy seal to the court, they
admitted a person of known ability and integrity to be
guardian, and on showing the reasons for suffering a com-
mon recovery, and proving that it is for the infant's ad-
vantage, it was done in open court.
judges used to examine very strictly into the present en-
tails, (and take the consent of those in remainder) and
into the ends and purposes of such recovery, and to be
attended with the writings and parties in court or at their
chambers, before they admitted a guardian, and suffered
the recovery to be passed in court". But it was still in
the discretion of the judges to permit the infant to suffer
a recovery or not, according to the circumstances of the
case* (2).

"See Blunt's case, Hob. 196; Jenk. Cent. 299; 1 Vern. 461; Cro. Car. 307;

And in this case the

Pig. Recov. 3d edit. 64, n.t;
Cru. 181.

* 1 Ld. Ra. 113; 2 Salk.567.

(1) See observations on the hardship of infants not being suffered to reverse fines or recoveries after their majority, Co. Lit. 247, a, n. (2).

(2) Common recoveries suffered by privy seal are now, however, disused, and private acts of parliament universally substituted in their stead. Cruise on Recov. 184.

For

But if an infant suffers a recovery, and appears by attorney it, seems he may reverse it after his full age; for here it may be discovered, whether he was within age when the recovery was suffered, because it may be tried per pais, whether the warrant of attorney was made by him when he was an infant". When, therefore, an infant is to suffer a recovery, he must make a tenant to the pracipe by fine, or by feoffment, and give livery of seisin in person, by which means the feoffment is only voidable; whereas, if an infant appointed an attorney to give livery of seisin for him, the feoffment would be absolutely void.

An infant trustee may join in a common recovery, in consequence of the statute 7 Anne, c. 19, if he is directed to do so by the Court of Chancery, for the act is general "that the infant shall convey as the court by order shall direct:" they may therefore direct a conveyance by fine or recovery, where such mode is requisite.

RECOVE-
RIES.

Idiots, lunatics, and generally all persons of non-sane Idiots, &e. memory, are disabled from suffering common recoveries,

as well as from levying fines; though if an idiot or lunatic
does suffer a common recovery, and appears in person, no
averment can afterwards be made that he was an idiot or
lunatic. But if he appears by attorney, it seems that such
an averment would be admitted, upon the same principle
that an averment of infancy may be made against a war-
rant of attorney, acknowledged by an infant for the pur-
pose of suffering a common recovery, as the fact of idiocy
may be tried by a jury, with as much propriety as the fact
of infancy. Thus in the celebrated case of Hume v. Burton,
b Cruise on Recov. 185;
Perk. 12; 3 Burr. 1804. 2 And. 163; Pig. 72.
Ex parte Johnson, 3 Atk.

559.

Sid. 321; Lev. 142, Q.

For notwithstanding the precautions of the judges, recoveries suffered in that manner might be reversed by writ of error. Cro. Car. 307; 1 Mod. 48; Pig. 66; Cru. 184.

RECOVE
RIES.

Feme covert.

which was determined by the House of Lords in Ireland, the majority of the judges were of opinion, that the caption of a warrant of attorney, taken by the Chief Justice of the court of Common Pleas, for the purpose of suffering a common recovery, was not conclusive evidence of the capacity of the person acknowledging such a warrant of attorney.

But although no averment of idiocy or lunacy can be made against a recovery, where the parties appear in person, yet evidence of weakness of understanding has been admitted to invalidate a deed to make a tenant to the præcipe for suffering a recovery; and the recovery has in that manner been set aside ".

A recovery may be suffered as well as a fine levied by a feme covert; because the præcipe in the recovery answers the writ of covenant in the fine to bring her into court, where the examination of the judges destroys the presumption of law that it is done by the coercion of her husband, for then it is presumed they would have refused her© (1); for whenever a husband and wife appear in court to suffer a common recovery, the wife is previously examined as to the freedom of her consent: and where a warrant of attorney is acknowledged before commissioners under a dedimus potestatem by husband and wife, the commissioners are expressly directed to examine the wife separately and apart from her husband, as to the same intent.

c Hume v. Burton, Cru. Recov. 361.

4 Wentworth's case, 2 Ves. 403; 3 Atk. 313; Jones v. Cave, Cru. Recov. 355.

10 Co. 43,'a; 2 Rol.Abr. 395; see Pig. 66. 1 Hen. Blac. 527.

(1) The first mention of an examination of the wife on a recovery is in 43 Ed. 3, c. 18, and it was afterwards, it should seem, disused. See Pig. Rec. 66. But the practice now is for the serjeants at the bar to examine femes covert when they come to suffer recoveries; Cru. 179.

And a common recovery suffered by husband and wife, will therefore bar the wife of her dower, though she has no recompenses. For though this has by some been doubted, because the woman has then no estate in esse; yet the same may be said against a fine; and the common recovery estops her as party, and the recovery disaffirms her husband's title to the lands of which she was dowable".

And it may be observed, that the husband, whether seised jointly with his wife, whether by moieties or entireties, or seised only in right of his wife, may create an estate of freehold during the coverture, and thereby make a good tenant to the præcipe, without his wife's joining; and this now is in constant experience and practice, and saves the charge of a fine.

RECOVE

RIES.

attainted.

`Attainder is a legal disability; and therefore if tenant Persons in tail be attaint, and office found, and land be granted to A. who sells it to B. who suffers a common recovery, and vouches tenant in tail, the remainders are not barred'. But yet according to some there should seem to be such a scintilla juris in the tenant in tail, after an attainder, that if there be a good tenant to the præcipe, he may by common recovery bar the issue, reversions and remainders; for if the king pardon the party, and restore the land, though the attainder is in force, he may bar the entail k.

Alienage is also another legal disability; but if an alien Alien. be tenant in tail, this is a good estate-tail till issue, though not descendible to his issue'. But if lands are given to an alien in tail, remainder to C. in fee, and the alien suffers a common recovery, and afterwards an office is found, this recovery will bar C. and the king will have a good fee;

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Pig. 67.
Godb. 218; but Allen in

Keb. 30, contra arguendo;
* Pig. 73; 1 Keb. 30, 398.
1 9 Co. 141.

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