transaction. And if the condition be possible at the time of making [341] it, and afterwards becomes impossible by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation is saved; for no prudence or foresight of the obligor could guard against such a contingency. (w) On the forfeiture of a bond, or its becoming single, the whole penalty was formerly recoverable at law: but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz. his principal, interest, and expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained, upon non-performance of covenants and the like. And the like practice having gained some footing in the courts of law, (x) the statute 4 and 5 Ann. c. 16. at length enacted, in the same spirit of equity, that, in case of a bond conditioned for the payment of money, the payment or tender of the principal sum due, with interest and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge. 72 73 2. A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorized, (y) with condition to do some particular act; as to appear at the assises, to keep the peace, to pay a debt, or the like. 74 It is in most respects like another bond the difference being chiefly this: that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknowledgment of a former debt upon record; the form whereof is, "that A. B. doth ac"knowledge to owe to our lord the king, to the plaintiff, to C. D. or the like, "the sum of ten pounds," which condition to be void on performance of the thing stipulated:" in which case the king, the plaintiff, C. D. &c. is called the recognizee," is cui cognoscitur;" as he that enters into the recognizance is called the cognizor, "is qui cognoscit." This, being either certified to or taken by the officer of some court, is witnessed only by the record of that 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. (2) There are also other recognizances, of a private kind, in nature of a statute [342] staple, by virtue of the statute 23 Hen. VIII. c. 6, which have been already explained, (a) and shewn to be a charge upon real property. 3. A defeazance, on a bond, or 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. It differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent deed. (b) This, like the condition of a w Co. Litt. 206. y Bro. Abr. tit. recognizance, 24. x 2 Keb. 553. 555. Salk. 596, 597. 6 Mod. 11. 60. 101. (72) Interest beyond the penalty of a bond may be recovered in a court of law in the shape of damages. 2 T. R. 388. But it cannot be allowed beyond the penalty in a court of equity. 3 Bro. 489. 2 Ves. jun. 718. Christian. (73) If a bond lie dormant for twenty years, it cannot afterwards be recovered; for the law raises a presumption of its having been paid, and the defendant may plead solvit ad diem to an action upon it. And in some cases, under particular circumstances, even a less time may found a presumption. This length of time, however, must be understood as only raising a presumption; which presumption of course may be rebutted by evidence on the part of the plaintiff. Archbold. (74) See the different recognizances fully treated of, 2 Saund. 68. and id. index, tit. Recovey and Statute Merchant and Staple. bond, when performed, discharges and disincumbers the estate of the obligor. These are the principal species of deeds or matter in pais, by which estates may be either conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent of any though in these there is certainly one palpable defect, the want of sufficient notoriety; so that purchasors or creditors cannot know, with any absolute certainty, what the estate, and the title to it, in reality are, upon which they are to lay out or to lend their money. In the ancient feodal method of conveyance (by giving corporal seisin of the lands), this notoriety was in some measure answered; but all the advantages resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances and there has never been yet any sufficient guard provided against fraudulent charges and incumbrances; since the disuse of the old Saxon custom of transacting all conveyances at the county-court, and entering a memorial of them in the chartulary or leger-book of some adjacent monastery; (c) and the failure of the general register established by king Richard the First, for the starrs or mortgages made to Jews, in the capitula de Judaeis, of which Hoveden has preserved a copy. [343] How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deserves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record. (d) And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature (e) to erect such register in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omissions of parties, than prevented by the use of registers. 75 c Hickes Dissertat. epistolar. 9. d Dalrymple on feodal property, 262. 4o. e Stat. 2 & 3 Ann. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. 8 Geo. II. c. 6. (75) By these statutes, deeds and conveyances are void against subsequent purchasers or mortgagees, unless registered before the conveyances under which such purchasers or mortgagees claim; and no judgment, statute, or recognizance shall bind any lands in those counties, but from the time a memorial thereof is entered at the office. Thus where there were two assignments of a lease, and the one last executed was registered first, it was held that the one first executed must be considered fraudulent under the 7 Ann. c. 20., for default in registering, although the second assignee knew of the first assignment at the time his was executed. 5 B. & A. 142. But a court of equity might relieve in such case, it having been decreed by lord Hardwicke, if the subsequent purchaser by the registered deed had previous notice of the unregistered one, he shall not avail himself of his deed, but the first purchaser shall be preferred. 1 Ves. 64. S Ves. 478. 1 Fonb. Eq. 25. note. 3 Mad. 132. These acts do not extend to copyhold estates, leases at rackrent, or to any leases not exeeding twenty-one years, where the possession accompanies the lease, nor to the chambers in the inns of court. Christian. } CHAP. XXI. OF ALIENATION BY MATTER OF 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 substantiate, preserve, and be a perpetual testimony of the transfer of property from one man to another; or of its establishment, when already transferred. Of this nature are, 1. Private acts of parliament. 2. The king's grants. 3. Fines. 4. Common recoveries. I. Private acts of parliament' are, especially 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 most grievously entangled by a multitude of contingent remainders, resulting trusts, springing uses, executory devises, and the like artificial contrivances; (a confusion unknown to the simple conveyances of the common law ;) so that it is out of the power of either the courts of law or equity to relieve the owner. Or it may sometimes happen, that by the strictness or omissions of family-settlements, the tenant of the estate is abridged of some reasonable power (as letting leases, making a jointure for a wife, or the like), which power cannot be given him by the ordinary judges either in common law or equity. Or it may be necessary, in settling an estate, to secure it against the claims of infants or other persons under legal disabilities; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of the like kind, the [345] transcendent power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpose, to un (1) See in general, Com. Dig. Parliament, R. 7. Bac. Ab. Statute, F. Vin. Ab. Statute, E. 2. Cruise Dig. title, 33. 4 vol. 509. and see ante, 1 Book, 181. et. seq. as to making them, and id. 59 & 85 to 92. ; and as to the construing them, Co. Litt. by Thomas, 1 vol. 27 to 34. Where a private act is obtained by a tenant in tail, it will bar the estate-tail and all remaind ers, and the reversion depending on it, although the persons in remainder or reversion should not give their consent to the act, 2 Cas. & Op. 400. 4 Cru. Dig. 520. and although the rights of the remainderman were not excepted in the saving. Ambl. 697. But where a tenant for life enters into an agreement to convey the fee-simple, and a private act is passed for establishing such agreement, in which is a saving of the rights of all persons not parties to the act, it will not affect the persons entitled to the remainder expectant on the life estate. 3 Wils. 483. Private acts are construed in the same manner as common law conveyances; and therefore when any doubt arises as to the construction of a private act, the court will consider what was the object and intention of the parties in obtaining the act, and endeavour, if possible, to give effect to that intention, 4 Cru. Dig. 526. et. vid. supra, 2 T. R. 701. It has been already observed, that a saving in an act, which is repugnant to the body of the act, is void, ante, 1 Book, 89 1 Co. 47. a.; and in like manner it is held, that the general saving clause in a private act will not control the provisions in the body of the act, but must be so expounded as to be consistent therewith, or else be void. 2 Vern. 711. Riddle v. White, 4 Gwill. 1387. A private act may be relieved against, if obtained upon fraudulent suggestions, 2 Bl. Com. 346. 2 Hargr. per argum. 392. Canc. 8. 1773. M'Kenzie v. Stuart, Dom. Proc 1754. Biddulph v. Biddulph, 4 Cru. Dig. 549., and it has been held to be void, if contrary to law and reason, 4 Co. 12., and no judge or jury is bound to take notice of it, unless the same be specially pleaded, but see ante, Book 1. p. 86 and id. note 18. As to the distinctions between public and private acts, see ibid.; and as to the mode of passing private bills, and the standing orders of the house of lords relating thereto, see 4 Cru. Dig. 516, 517, 518. 553-563. As to the mode of pleading a private act of parliament, see 2 Chitty on Pleading, 4 ed. 579Chitty fetter an estate; to give its tenant reasonable powers; or to assure it to a purchasor, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred. 2 This practice was carried to a great length in the year succeeding the Restoration; by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurpation. And at last it proceeded so far, that, as the noble historian expresses it, (a) every man had raised an equity in his own imagination, that he thought was entitled to prevail against any descent, testament, or act of law, and to find relief in parliament: which occasioned the king at the close of the session to remark, (b) that the good old rules of law are the best security; and to wish, that men might not have too much cause to fear, that the settlements which they make of their estate, shall be too easily unsettled when they are dead, by the power of parliament. Acts of this kind are however at present carried on, in both houses, with great deliberation and caution; particularly in the house of lords they are usually referred to two judges to examine and report the facts alleged, and to settle all technical forms. Nothing also is done without the consent, expressly given, of all parties in being, and capable of consent, that have the remotest interest in the matter: unless such consent shall appear to be perversely and without any reason withheld. And, as was before hinted, an equivalent in money or other estate is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by this act, And a general saving is constantly added, at the close of the bill, of the right and interest of all persons whatsoever; except those whose consent is so given or purchased, and who are therein particularly named: though it hath been holden, that, even if such saving be omitted, the act shall bind none but the parties. (c) sug A law, thus made, though it binds all parties to the bill, is yet [346] looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not therefore allowed to be a public, but a mere =private statute; it is not printed or published among the other laws of the session; it hath been relieved against, when obtained fraudulent upon #gestions; (d) it hath been holden to be void, if contrary to law and reason; (e) 3 and no judge or jury is bound to take notice of it, unless the same be specially set forth and pleaded to them. It remans however, enrolled among the public records of the nation, to be for ever preserved as a perpetual testimony of the conveyance or assurance so made or established. 3 4 II. The king's grants are also matter of public record. For as St. Germyn says, (f) the king's excellency is so high in the law, that no a Lord Clar. Contin. 162. c Co. 138. Godb. 171. b Ibid. 163. d Richardson v. Hamilton. Canc. 8. Jan. 1773. Mc Kenzie v Stuart. Dom. Proc. 13 Mar. 1754. (2) Tenants for life sometimes obtain private acts of parliament to enable them to charge the inheritance for the amount of necessary repairs and improvements, which must enure to the benefit of the remainderman and reversioner. But parliament of course is the judge whether the proposed repairs and improvements are adequately beneficial to the amount to be charged upon the estate. As to the forms to be observed in the passing of private statutes see ante, 1 Book, Chitty. 181. et. seq. (3) See ante, 1 Book, 91. note 29. (4) Com. Dig. Grant, G. Bac. Ab. Prerogative, F. Vin. Ab. Prerogative of the King, T. Cruise Dig. title, 34. 4 vol. 564. VOL. I. 82 freehold may be given to the king, nor derived from him but by matter of record. And to this end a variety of offices are erected, communicating in a regular subordination one with another, through which all the king's grants must pass, and be transcribed, and enrolled; that the same may be narrowly inspected by his officers, who will inform him if any thing contained therein is improper, or unlawful to be granted. These grants, whether of lands, honours, liberties, franchises, or ought besides, are contained in charters, or letters patent, that is, open letters, literae patentes : so called because they are not sealed up, but exposed to open view, with the great seal pendant at the bottom; and are usually directed or addressed by the king to all his subjects at large. And therein they differ from certain other letters of the king, sealed also with his great seal, but directed to particular persons, and for particular purposes: which therefore, not being proper for public inspection, are closed up and sealed on the outside, and are thereupon called writs close, literae clausae, and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls. Grants or letters patent must first pass by bill: which is prepared by the attorney and solicitor general, in consequence of a warrant [347] from the crown; and is then signed, that is, subscribed at the top, with the king's own sign manual, and sealed with his privy signet, which is always in the custody of the principal secretary of state; and then sometimes it immediately passes under the great seal, in which case the patent is subscribed in these words, "per ipsum regem, by the king himself." (d) Otherwise the course is to carry an extract of the bill to the keeper of the privy seal, who makes out a writ or warrant thereupon to the chancery; so that the sign manual is the warrant to the privy seal, and the privy seal is the warrant to the great seal and in this last case the patent is subscribed, "per breve de privato sigillo, by writ of privy seal.” (e) But there are some grants which only pass through certain offices, as the admiralty or treasury, in consequence of a sign manual, without the confirmation of either the signet, the great, or the privy seal. The manner of granting by the king does not more differ from that by a subject, than the construction of his grants, when made. 1. A grant made by the king, at the suit of the grantee, shall be taken most beneficially for the king, and against the party: whereas the grant of a subject is construed most strongly against the grantor. Wherefore it is usual to insert in the king's grants, that they are made, not at the suit of the grantee, but "ex "speciali gratia, certa scientia, et mero motu regis ;" and then they have a more liberal construction. (f) 2. A subject's grant shall be construed to include many things, beside what are expressed, if necessary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingress, egress, and regress, to cut and carry away those profits, are also inclusively granted: (g) and if a feoffment of land was made by a lord to his villein, this operated as a manumission; (h) for he was otherwise unable to hold it. But the king's grant shall not enure to any other intent, than that which is precisely expressed in the grant. As, if he grants land to an alien, it operates nothing: for such grant shall not [348] also enure to make him a denizen, that so he may be capable of taking by grant. (i) 3. When it appears, from the face of the grant, that the king is mistaken, or deceived, either in matter of fact or matter of law, as in case of false suggestion, misinformation, or misrecital of former |