of a bond, or it's becoming fingle, the whole penalty was formerly recoverable at law: but here the courts of equity interpofed, and would not permit a man to take more than in confcience he ought; viz. his principal, interest, and expenfes, in cafe 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 fome footing in the courts of law, the statute 4 & 5 Ann. c. 16. at length enacted, in the fame spirit of equity, that, in cafe of a bond, conditioned for the payment of money, the payment or tender of the principal fum due, with interest and cofts, even though the bond be forfeited and a fuit commenced thereon, shall be a full fatisfaction and discharge. 2. A recognizance is an obligation of record, which a man enters into before fome court of record or magistrate duly authorized y, with condition to do fome particular act; as to appear at the affifes, 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 acknowlegement of a former debt upon record; the form whereof is, "that A. B. doth acknowlege to owe to our lord the king, to "the plaintiff, to C. D. or the like, the fum of ten pounds," with condition to be void on performance of the thing stipulated in which cafe the king, the plaintiff C. D. &c. is called the cognizee, "is cui cognofcitur;" as he that enters into the recognizance is called the cognizor, "is qui cognofcit." This, being either certified to, or taken by the officer of fome court, is witneffed only by the record of that court, and not by the party's feal: fo 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 enrollment on record 2. There are alfo other recognizances, of a private kind, in nature of a flatute staple, by * 2 Keb. 553. 555. Salk. 596, 597. 6 Mod. 11. 60. 101. 4 y Bro. Abr. tit. recognizance. 24. [342] BOOK II. virtue of the ftatute 23 Hen. VIII. c. 6. which have been already explained, and fhewn 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 fame 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 inferted in the deed or bond itself, the other is made between the fame parties by a feparate, and frequently a fubfequent deed. This, like the condition of a bond, when performed, discharges and difincumbers the eftate 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 fufficient notoriety: so that purchafors or creditors cannot know with any abfolute 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 antient feodal method of conveyance (by giving corporal seisin of the lands) this notoriety was in fome measure answered; but all the advantages refulting from thence are now totally defeated by the introduction of death-bed devifes and fecret conveyances and there has never been yet any fufficient guard provided against fraudulent charges and incumbrances; fince the difufe of the old Saxon cuftom of transacting all conveyances at the county court, and entering a memorial of them in the chartulary or leger-book of fome adjacent monaftery; and the failure of the general register established by king Richard the first, for the starrs or mortgages made to [345] Jews, in the capitula de Judaeis, of which Hoveden has preferved a copy. How far the establishment of a like general regifter, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, deferves to be c Hickes Differtat, epistolar. 9. a See pag. 160. b Co. Litt. 237. 2 Sand. 47. well well confidered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record a. And some of our own provincial divifions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature to erect such regifters in their feveral diftricts. But, however plaufible these provifions may appear in theory, it hath been doubted by very competent judges, whether more difputes have not arifen in those counties by the inattention and omiffions of parties, than prevented by the use of registers (13). d Dalrymple on feodal property. 262. &c. e Stat. 2 & 3 Ann. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. 8 Geo. II. c. 6. (13) By the register acts, a registered deed fhall be preferred to a prior unregistered deed; yet it has been decreed by lord Hardwicke, if the fubfequent purchafer by the registered deed had previous notice of the unregistered one, he shall not avail himself of bis deed, but the first purchaser shall be preferred. i Ves. 64. CHAPTER THE TWENTY-FIRST. OF ALIENATION BY MATTER OF RECORD. SSURANCES by matter of record are fuch as do not entirely depend on the act or confent of the parties themselves but the fanction 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 it's 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, efpecially of late years, become a very common mode of affurance. For it may fometimes happen, that by the ingenuity of fome, and the blunders of other practitioners, an estate is most grievously entangled by a multitude of contingent remainders, resulting trufts, fpringing ufes, executory devises, and the like artificial contrivances; (a confufion unknown to the fimple conveyances of the common law) fo that it is out of the power of either the courts of law or equity to relieve the owner. Or, it may fometimes happen, that by the ftrictnefs or omiffions of family fettlements, 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 neceffary, in fettling an eftate, to fecure it against the claims of infants or other perfons under legal difabilities; who are not bound by any judgements or decrees of the ordinary courts of juftice. In thefe, cr other cafes of the the like kind, the tranfcendent power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpose, to unfetter an estate ;`to give it's tenant reasonable powers; or to affure it to a purchafor, against the remote or latent claims of infants or difabled perfons, by fettling a proper equivalent in proportion to the interest so barred. This practice was carried to a great length in the year fucceeding the restoration; by fetting afide many conveyances alleged to have been made by constraint, or in order to fcreen the eftates from being forfeited during the ufurpation. And at laft it proceeded fo far, that, as the noble hiftorian expreffes it ", every man had raised an equity in his own imagination, that he thought was entitled to prevail against any defcent, teftament or act of law, and to find relief in parliament which occafioned the king at the clofe of the Seffion to remark, that the good old rules of law are the best fecurity; and to wish, that men might not have too much cause to fear, that the fettlements which they make of their eftates fhall be too eafily unfettled when they are dead, by the power of parliament. ACTS of this kind are however at prefent 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 fettle all technical forms. Nothing alfo is done without the confent, exprefsly given, of all parties in being and capable of confent, that have the remoteft intereft in the matter; unless fuch consent shall appear to be perversely and without any reafon withheld. And, as was before hinted, an equivalent in money or other eftate is ufually fettled upon infants, or perfons not in effe, or not of capacity to act for themselves, who are to be concluded by this act. And a general faving is conftantly added, at the close of the bill, of the right and interest of all perfons whatsoever; except those whofe confent is fo 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 Co. 138. Godb. 175. A LA a Lord Clar, Contin. 162. ↳ Ibid. 163. |