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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. How it affects the personal property of the obligor, will be considered hereafter.

may be avoid

ed.

If the condition of a bond be impossible at the time of making How a bond or it, or be to do a thing contrary to law, or be uncertain, or insen- its condition sible, the condition alone is void, and the bond good; for it is the folly of the obligor to enter into such an obligation. If it be to do a thing that is malum in se, the obligation itself is void; for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. If the condition, being possible at the time of making it, 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. On the forfeiture of a bond, Co. Litt. 206. or its becoming single, the whole penalty was formerly recoverable at law; but the courts of equity interposed, and would not permit a man to take more than 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; the payment and tender of which it was at length enacted by 4 & 5 Anne, c. 16, shall be a full satisfaction and discharge.

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Recogni zance," 24.

A recognizance is an obligation of record, which a man A recognienters into before some court of record or magistrate duly zance. authorised, with condition to do some particular act; as to Bro. Abr. tit. appear at the assizes, to keep the peace, to pay a debt, or the like. 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 being, "that A. B. doth acknowledge to owe to our lord the king, 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; in which case the king, the plaintiff, C. D., &c. is called the cognizee; and he that enters into the recognizance the cognizor. 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 29 Car. 2, c. 3 of the cognizor from the time of enrolment on record (m).

Defeazance.

A defeazance, on a bond, or recognizance, or judgment recovered, is a condition, which, when performed, defeats it in the same manner as a defeazance of an estate; but instead of being inserted in the deed or bond, is made between the same Co. Litt. 237. parties by a separate, and sometimes a subsequent deed. This also, when performed, discharges the estate of the obligor.

2 Saund. 47.

matter of re

cord.

CHAPTER XXI.

OF ALIENATION BY MATTER OF RECORD.

Assurances by 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 private acts of parliament, the king's grants, fines, and common recoveries.

Private acts of parliament.

Private acts of parliament are become a very common mode of assurance. It sometimes happens that an estate is entangled by a multitude of contingent remainders, resulting trusts, springing uses, and executory devises; so that it is beyond the power of the courts of law or equity to relieve the owner; or that by the strictness or omissions of family settlements, the tenant of the estate is abridged of some reasonable power, (as letting leases, or making a jointure for a wife), which power cannot be given him by the ordinary judges of 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,

(m) By 29 Car. 2, c. 3, s. 18, no recognizance binds any lands, &c. in the hands of any purchaser, bona fide, and for valuable consideration, but from the time of enrolment. The day of the month and year of enrolment must be stated in the margin of the roll. Without enrolment a recognizance has not precedence over specialty debts; 1 P.Wms. 334. By 2 Vict. c. 11, recognizances, statutes, or judgments in the queen's name, or inquisition by which any debt shall be found due to the queen, or obligation or specialty to the queen, are not to affect any lands, &c. as to purchasers or mortgagees until registered in a book, to be intituled "the index to debtors and accountants to the crown," as therein dirccted; and such book is to be open to the inspection of all persons. The act 3 Geo. 4, c. 46, amended by 4 Geo. 4, c. 37, provides for the more speedy return and levying of fines, penalties, forfeitures, and recognizances estreated.

take notice of

who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other similar cases, an act of parliament is frequently obtained, which, by a particular law enacted for the purpose, effects the required objects. Acts Requisites for obtaining priof this kind, particularly in the house of lords, are usually vate acts of referred to two judges to examine and report the facts alleged, parliament. and settle technical forms. Nothing is done without the consent of all parties in being, and capable of consent, who have the remotest interest in the matter; unless such consent shall be perversely withheld. An equivalent in money is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by the act. And a general saving is added of the rights of all persons, except those whose consent is so given. A law thus made, though it binds all parties to the bill, is yet 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; and no judge or jury is bound to take notice of it unless it be specially set forth and pleaded. The king's grants are also matter of public record. These, whether of lands, honours, or ought besides, are contained in charters or letters patent, that is, open letters literæ 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. They differ from certain other letters of the king directed to particular persons and for particular purposes; which are sealed with the great seal, but closed up and sealed also on the outside, called writs close. These are recorded in the close rolls in the same manner as the others are in the patent rolls. The king's grants are to be construed beneficially for the king and against the party; and when it appears from the face of the grant that the king was deceived, the grant is void. A fine of lands and tenements (a) is an acknowledgment of and tenements.

:

The courts are not bound to private acts unless specially pleaded. The king's grants, or letters patent.

Construction grants.

of the king's

Fines of lands

(a) In consequence of the total abolition of fines and recoveries, by 3 & 4 Wm. 4, c. 74, much of this chapter has become obsolete, as far as the present practice is concerned; yet as the learning of fines and recoveries is still essential in investigating titles to property, it has been found necessary to retain a considerable portion of the chapter, the phraseology being altered from the present to the past tense.

By 3 & 4 Wm. 4, c. 74, fines and recoveries were abolished. A married woman in every case, except that of being tenant in tail, for which provision is made by the act, may now, with her husband's concurrence, dispose of lands and money, subject to be invested in the purchase of lands, and of any estate therein, which she alone, or she and her husband in her right may have in any lands of any tenure, or in any such money; and release and extinguish powers as a feme sole. But the act does not ex

Co. Litt. 50.

a feoffment on record. It had the same force and effect as a feoffment in conveying and assuring of lands. It was a method of transferring freehold estates at the common law, in which livery of seisin was not necessary; the acknowledgment inducing an equal notoriety. In its original it was founded on an actual suit commenced at law for recovery of land. The possession thus gained was found to be so effectual that fictitious actions were commenced to obtain the same security. A fine was so called because it put an end to the suit thus commenced, and to all other suits and controversies concerning the same matter. As soon as this fictitious action was brought the defendant was supposed to make overtures of peace to the plaintiff, The concord. who accepted them; then came the concord, which was an acknowledgment from the deforciants, (or those who kept the other out of possession) that the lands were the right of the plaintiff; and hence the party levying the fine was called the cognizor, and he to whom it was levied the cognizee. This acknowledg

tend to copyholds, to which she alone, or she and her husband in her right, may be seised or entitled for an estate at law, in any case, in which any of the objects to be effected by this clause, could before the act, have been effected by her in concurrence with her husband by surrender. Every deed executed by a married woman for any of the purposes of the act, except in the character of protector, must be acknowledged by her before a judge, master in chancery, or commissioner, who must examine her apart from her husband, as to her voluntary consent to such deed, which voluntary consent is necessary to its validity. Perpetual commissioners are appointed by the act for taking the acknowledgments of married women in such cases, whose powers are not confined to any places in particular. If from being abroad a married woman be prevented from making acknowledgment, special commissioners may be appointed. The persons taking the acknowledgment must sign a memorandum, and certificate thereof, to the effect mentioned in the act. A certificate, with an affidavit verifying the same, must be lodged in the court of common pleas, and filed of record; and the deed by relation is to take effect from the time of acknowledgment. A married woman is to be separately examined, on the surrender of an equitable estate in copyholds, as if such estate were legal. The court of common pleas may dispense with the husband's concurrence, in case of his being a lunatic, except when the lord chancellor, or other person shall be the protector of a settlement in lieu of such husband. Every tenant in tail in possession may dispose either absolutely, in fee simple, or for a less estate, of the lands entailed as against all persons claiming under the entail, and all others whose estates are to take effect after or in defeazance of the estate tail. Every disposition of lands by a tenant in tail under this statute may be effected by any deed (but not by will), by which he could have disposed of the same if seised in fee; but no disposition resting only in contract, is of any force, whether supported by a valuable consideration, or not, although made or evidenced by deed. And if the tenant in tail making the disposition be a married woman, the concurrence of her husband is necessary; and any deed executed by her for effecting the same, must be acknowledged, as directed in s. 79. Every such assurance, by tenant in tail under the act, except a lease not exceeding twenty-one years, must be enrolled within six months, except of copyholds, when the assurance must be entered on the court-rolls of the manor; and see ante, p. 138.

ment must have been made either open in the court of common pleas, or before the chief justice, or one of the judges of that court, or two commissioners in the country empowered by writ of dedimus potestatem. If there were any feme covert among the cognizors, she was privately examined whether she did it willingly and freely or by compulsion of her husband. A note of the fine, being an abstract of the writ of covenant and concord, with the names of the parties and parcels, was, pursuant to 5 Hen. 4, c. 14, enrolled of record. The next part was the foot of the fine or conclusion, which included the whole matter, reciting the day, year, and place, and before whom it was acknowledged. Of this there were indentures made or engrossed at the chirographer's office, and delivered to the cognizor and the cognizee. Besides being enrolled in the common pleas, fines were proclaimed in court, and the proclamations indorsed on the back of the record.

Fines thus levied are of four kinds, " sur cognizance de droit, Of the different species come ceo que il ad de son done;" or a fine upon acknowledgments. of the right of the cognizee, as that which he hath of the gift of the cognizor. This is the best and surest kind of fine; and is said to be a feoffment of record; the livery thus acknowledged in court being equivalent to an actual livery. A fine “sur cognizance de droit tantum," or upon acknowledgment of the right merely; not with the circumstance of a preceding gift from the cognizor, was commonly used to pass a rever- Moore, 629. sionary interest in the cognizor. A fine "sur concessit" is where the cognizor, in order to make an end of disputes, though he acknowledged no precedent right, yet granted to the cognizee an estate de novo usually for life or years by way of supposed composition. A fine "sur done, grant, et render," is a double fine, comprehending the fine sur cognizance de droit come ceo, &c., and the fine sur concessit: and was used to create particular limitations of estate: whereas the fine " sur cognizance de droit come ceo, &c., conveyed nothing but an Salk. 340. absolute estate, either of inheritance or of freehold. In this last species of fine, the cognizee, after the right was acknowledged to be in him, granted back again, or rendered to the cognizor, or perhaps to a stranger, some other estate in the premises.

But the first species of fine sur cognizance de droit come ceo &c., was the most used, as it conveyed an absolute Ibid. freehold, and gave the cognizee a seisin in law without any actual livery; and was therefore called a fine executed, whereas the others were but executory. The force and effect of a fine depend on the common law, and the statutes, 4 Hen. 7, c. 24,

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