16. Another kind of assurance is that founded upon a power given by a will or by an act of parliament, on which, although the words of conveyance are usually "bargain and sell," the estate passes by force of the will or act of parliament, the person who executes the power, merely nominating the party to take the estate. It is therefore not strictly a conveyance, though it has the operation of vesting an estate in the appointee.

17. There is an anomalous class of deeds, operating as conveyances, which cannot be said to fall under any of the preceding heads, those, namely, which owe their entire efficacy to some act of parliament. Thus, the promoters of any undertaking, who have contracted for the purchase of lands in conformity with the Lands Clauses Consolidation Act, 1845, and cannot afterwards obtain a conveyance, are enabled, after depositing the purchase-money in the Bank of England, to execute a deedpoll, containing a recital of the transaction, and conveying the land to themselves, upon the execution of which deed, the estate of the party with whom the agreement was made becomes vested absolutely in the promoters of the undertaking.

Before concluding, a few remarks upon such deeds as are used not to convey, but to charge or incumber, lands, and to discharge them again, may not be out of place. Of this nature are, obligations or bonds, recognizances, and defeazances upon them both.

1. An obligation or bond is a deed whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain sum of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio: but there is generally a condition added, that, if the obligor does some particular act, the obligation shall be void, or else shall remain in full force for instance, repayment of a principal sum of money borrowed of the obligee, with interest. In case this condition is not performed, the bond becomes forfeited, or absolute, at law, and charges the obligor, while living; and after his death the obligation descends upon his heir, who, on defect of personal assets, is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet a collateral, charge upon the lands.

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2. A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorised, with condition to do some particular act; as, to keep the peace, to pay a debt, or the like. It is in most respects like any other bond, the form of it being, "that A B doth acknowledge to owe to our lady the queen, to the plaintiff, to C D, or "the like, the sum of ten pounds," with condition to be void on performance of the thing stipulated. This is witnessed only by the record of the court, and not by the party's seal: so that it is not in strict propriety a deed, though the effects of it are greater than a common obligation, being allowed a priority in point of payment, and binding the lands of the cognizor, from the time of enrolment on record.

Of a nature somewhat similar to a recognizance, is a judgment of the High court, which operates as a charge upon all the property of the person against whom it is entered up. The mode usually resorted to of giving a creditor a lien upon his debtor's real property, is, where an action has been commenced, by giving a cognovit actionem or confession of the plaintiff's right, or by giving a warrant of attorney to confess a judgment, which, when entered up, in pursuance either of the cognovit or warrant of attorney, becomes a charge upon the lands of the debtor. It is of no avail, however, against bonâ fide purchasers or mortgagees of the lands, or creditors having a charge thereon, unless a memorandum be registered in the proper office, process of execution issued thereon, and similarly registered, before the date of the conveyance, mortgage, or charge; the writ put in force within three months after its registration; and the land actually delivered in execution or pursuance thereof. The registration of the judgment itself only holds good for five years, when it must be re-registered, in order to be binding. But as between the debtor and his creditor, to whom he executes the warrant, it is a valid charge, binding the debtor's lands, and comes properly under the head of matter in pais, by which estates may be affected.

3. A defeazance, on a bond recognizance or judgment recovered, is a condition, which, when performed, defeats or undoes it, in the same manner as a defeazance of an estate before mentioned.

These are the principal deeds, by which estates may be con

veyed. There is one palpable defect applicable to all, the want of notoriety; so that purchasers or creditors cannot know with any certainty, what the estate and the title to it in reality are, upon which they are to lay out or to lend their money. It has often been proposed to establish a general registry of deeds affecting real property; but no serious or well considered attempt to do so has yet been made. A Land Registry, as it is called, has been established; but its operations are confined to such property only as the owners who are so advised choose to enter in its books.

CHAPTER XVIII.

OF ALIENATION BY MATTER OF RECORD.

ASSURANCES by matter of record are such as do not entirely depend on the act or consent of the parties themselves: but the sanction of a court of record is called in to preserve, and be a perpetual testimony of the transfer of the property. Of this nature are, 1. Private acts of parliament; and 2. Grants by the crown. To this class belong, 3. Disentailing Deeds, now substituted for Fines and Recoveries; and to the same class must now be referred,-4. Vesting orders of the court of chancery; orders of the court of bankruptcy, deeds executed and awards made by public boards under the authority of acts of parliament, and conveyances of property recorded in the land registry.

I. Private acts of parliament have of late years become a very common mode of assurance. For it may sometimes happen, that by the ingenuity of some, and the blunders of other practitioners, an estate is so grievously entangled, that it is out of the power of any court to relieve the owner. Or it may sometimes happen, that, by the strictness or omissions of family settlements, the tenant is abridged of some reasonable power, which cannot be given him by any court. In such cases, the power of parliament is called in, to cut the knot; and by a particular law to unfetter an estate; to give its tenant reasonable powers; or to assure it to a purchaser, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred.

II. The sovereign's grants are also matter of record. For, no freehold may be given to the king, nor derived from him, but by matter of record. And for this several offices exist, through which all the grants of the crown must pass, and be enrolled; that the same may be narrowly inspected by the officers, who are to inform the sovereign if anything contained therein ought not to be granted. These grants are contained in letters patent, that is, open letters, literæ patentes: so called because they are not sealed up, but exposed to open view, and are usually addressed by the sovereign to all his subjects at large. And therein they differ from letters sealed also with the great seal, but directed to particular persons, and for particular purposes; which, not being proper for public inspection, are closed up, and are called writs close, literæ clause, and recorded in the close-rolls, in the same manner as the others are in the patent-rolls.

III. Disentailing Deeds, which have replaced Fines and Common Recoveries, call for some more detailed explanation.

A fine, formerly a very usual method of transferring a freehold, was neither more nor less than an amicable agreement of a suit, actual or fictitious, whereby the lands, the subject of the action, were acknowledged to be the right of one of the parties. Originally it was founded on an actual suit, commenced at law for recovery of the land; and the possession thus gained was found to be so sure and effectual, that fictitious actions were introduced for the sake of obtaining the same security. It was so called because it put an end, not only to the suit, but also to all other suits and controversies concerning the same matter. The party to whom the land was to be conveyed, commenced an action at law against the other, the foundation of which was a supposed agreement that the one should convey the lands to the other; on the breach of which the action was brought. On this there was a primer fine, or fee due to the crown. The suit being thus commenced, then followed the licentia concordandi, or leave to agree the suit. For, as soon as the action was brought, the defendant, knowing himself to be in the wrong, was supposed to make overtures of peace and accommodation to the plaintiff. Who, accepting them, but having, upon suing out the writ, given pledges to prosecute his suit, which he endangered if he now deserted it without licence, he therefore applied to the court for

leave to make the matter up. This leave was readily granted, but for it there was also another fine due to the king, called the king's silver, or sometimes the post fine, with respect to the . primer fine before mentioned.

Next came the concord, or agreement itself, which was an acknowledgment from the defendants that the lands in question were the right of the plaintiff. And from this recognition of right, the party levying the fine was called the cognizor, and he to whom it was levied, the cognizee. If there were any femecovert among the cognizors, she was privately examined whether she did it willingly and freely, or by compulsion of her husband. By these acts all the essential parts of a fine were completed; and, if the cognizor died the next moment, still the fine might be carried on in all its remaining parts; of which the next was the note of the fine, or an abstract of the concord; naming the parties, the parcels of land, and the agreement, which was duly enrolled in the proper office; after which came the last part, or foot of the fine, or conclusion of it; which recited the parties, day, year, and place, and before whom it was acknowledged or levied. Of this there were indentures engrossed and delivered to the cognizor and the cognizee; usually beginning thus, "hac est finalis concordia, this is the final agreement," and then reciting the whole proceeding at length. And thus the fine was com

pletely levied at common law.

Various statutes regulated the mode in which these proceedings were to be taken, and especially provided for the fine being openly read and proclaimed in court sixteen times, and for a list of all fines levied being duly published. For the effect of a fine duly levied was that the right of all strangers was barred, unless they made claim within five years after the proclamations made. Feme-coverts, infants, prisoners, persons beyond the seas, and such as were not of whole mind, had five years allowed to them and their heirs, after the death of their husbands, their attaining full age, recovering their liberty, returning into England, or being restored to their right mind.

The proceeding by common recovery was invented by the ecclesiastics to elude the statutes of mortmain; and afterwards encouraged by the courts of law, in order to bar not only estates-tail, but also remainders and reversions expectant there