and a garden, &c.;" which show that "messuage or tenement" are two words for the same thing, and that both mean a dwelling-house. But this is not any fundamental ground of determination in the present case. What I ground my opinion upon is, the prin ciples laid down in Dormer's case, 5 Co. 40 b. reported also in Popham, 23; and the distinction the Court there take, between adverse actions and common recoveries; which at that time were become a common assurance and conveyance of lands, &c. and which the Court say, "being also made by assent between the parties, shall and always have had a different exposition from what is given to a recovery by pretence of title, or to the proceeding in any other real action, to which they are not to be compared ; therefore a common recovery may be suffered of an advowson, common in gross, warren, and the like; and the intent of the parties shall be observed." Now the objection in this case is an objection to the very same description as is used by the ancestor in the deed which created the entail. The sole object of the recovery is to unfetter the premises so entailed; and therefore I will not depart from this anciently established principle to do such cruel injustice, both against the intention of the parties, and against public convenience. Not one precedent has been cited where such an objection has been held good in the case of a common recovery. But a case of a fine has been cited where it was allowed; and from thence it has been argued by analogy, that it is bad in a common recovery; but that argument does not hold. His ante, 20. Lordship then cited the case of Addison v. Otway, and said, this decision is an instance of liberality that would not have been adopted or followed in an adverse præcipe. So in many other instances; as an advowson, for which no adverse action will lie, but a common recovery will: therefore, as the distinction between amicable and adverse suits exists-as the inconveniences of avoiding the recovery would be great-as no precedent in point is produced, and there is no possibility of doubt about the intent of the parties-I am clearly of opinion, that the judgment of the Court of King's Bench in Ireland ought to be affirmed. The other Judges concurred and the judgment was affirmed. TITLE XXXVI. RECOVERY.. CHAP. V. Of the Parties to a Recovery. 1. Who may suffer a Recovery. 2. Aliens. 3. Married Women. 6. Persons attainted. 7. Infants. 17. Exception-Infant Trustees. 4. Who are disabled from suf- 19. Idiots and Lunatics. fering Recoveries. 5. The King. 21. Tenants for Life. 24. Who may take by Recovery. Who may suffer a Recovery. Aliens. ante, c. 2. § 12. Married 4 Vin. Ab. 66. SECTION 1. A COMMON recovery having from its origin been considered as a common assurance or conveyance, by which lands were transferred from one person to another; and the default and admission of judgment by the tenant and vouchee being as much their voluntary act as if they had conveyed the land by feoffment and livery, or any other act in pais; it was held, that all those whom the law enables, in other instances, to dispose of their property, and who are of full age and sufficient understanding, should have power to suffer a common recovery. 2. An alien may suffer a common recovery; for, as has been already stated, he has the freehold, and is a good tenant to the præcipe until office found. 3. Although a writ of entry might always have been brought against a husband and wife, yet it was formerly much doubted whether a married woman could be vouched with her husband, because she ought to be examined, and the Court of Common Pleas had no warrant to examine her, and a married woman could not be examined without a writ. It is, however, said in Mary Portington's case, that the usage had always been, upon a common recovery against husband and wife, to examine the wife, and 10 Rep. 43 a. to grant a dedimus potestatem to take her acknowledgement upon examination, as in the case of a fine. Pigot says, that the examination of married women Recov. 66. was wholly disused; this is however a mistake; for now, whenever a husband and wife appear in the Court of Common Pleas, to suffer a common recovery, the wife is always privately examined as to her consent. Where a warrant of attorney is acknowledged defore commissioners appointed by writ of dedimus potestatem de attornato faciendo, by a husband and wife, the commissioners are positively directed, by a rule of Court, which has been already ante, c. stated, to examine the wife separately and apart from $15. her husband, as to her free and voluntary consent to the suffering such recovery. And it is now settled, that a married woman is as fully bound by voucher in a common recovery as by a fine, and for the same. reason. 3. suffering Re 4. In enumerating the persons who are disabled Who are disfrom suffering common recoveries, I shall begin with abled from those whose disability arises from the rules of the coveries. common law; and then proceed to those whose dis ability is created by act of parliament.. 5. The King cannot suffer a common recovery; The King. for if he does, he must either be tenant or vouchee; Pigot, 74. and in both cases the demandant must count against him, which the law does not allow. Persons attainted. 6. It is said in Jenkins, 251, if tenant in tail, the remainder in fee, is attainted of treason, a common recovery, in which he is tenant or vouchee, does not bar the remainder; for the estate tail vests in the King without office. If he dies, and the heir of his body is vouched, this also is no bar to the remainder; for the estate tail did not descend upon him, but was vested in the King before, without office. 7. Infants are not capable of suffering common recoveries, on account of their want of underDyer, 232. standing; although if an infant is permitted to suffer Infants. 1 Inst. 380 b. 2 484. a common recovery in person, he must, as in the case of a fine, and for the same reason, reverse it Tit. 35. c. 5. during his infancy, which must be tried by inspec§ 36. tion of the Judges, otherwise the recovery will bind him for ever after. Hopton v. 2 Roll. Ab. Raby v. Robinson, 1 Sid. 321. c. 3. § 12. 8. There are, however, two cases in which it appears to have been determined that a common recovery suffered by an infant, who appeared in person, might be reversed. But, I presume, that these recoveries were avoided during the infancy of the vouchees; for the principle, that a recovery suffered by an infant, is so far similar to a fine, that it cannot be reversed after the infant comes of age, is most clearly stated by Lord Coke and Dyer, in the places above cited, and recognised in a case subsequent to those last mentioned; in which it was resolved, that where an infant suffered a recovery, and appeared in person, a writ of error did not lie after he attained his full age; and it is said, that the Court delivered this opinion after conference with the other Judges, it being a matter of great concern. 9. But if an infant suffers a common recovery, in which he appears by attorney, he may reverse it at |