tion 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, 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.

As

These are the principal species of deeds or matter in pais, by which estates may be either conveyed or at least affected. regards conveyances, there is certainly one palpable defect, the want of sufficient notoriety; so that purchasers 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. It has often, and especially of late years, been proposed to establish a general registry of deeds affecting real property; but opinions on this most important subject are much divided, and no attempt to carry any legislative measure having this object in view has yet succeeded. A land registry, as it is called, has no doubt been established; but its operations are confined to recording the state of the title and registering the future transmission only of such property as the owners choose to enter in its books.

CHAPTER XVIII.

OF ALIENATION BY MATTER OF RECORD.

Private acts of parliament-Letters patent-Fines-Common recoveriesDisentailing deeds-Vesting orders of Court of Chancery—Land registry. 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 belonged those now abolished modes of assurance,—3. Fines ;—4. Common recoveries; and to the same class must now be referred,— 5. 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 of 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, which cannot be given him by the courts. In these or other cases of the like kind, the transcendent 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 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 public record. For, no freehold may be given to the king, nor derived from him, but by matter of record. And to this end variety of offices are erected, communicating in a regular subordination one with another, through which all the grants of the crown must pass, and be transcribed and enrolled; that the same may be narrowly inspected by the officers of the crown, who will inform the sovereign if anything contained therein is improper or unlawful to be granted. These grants 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 sovereign to all his subjects at large. And therein they differ from certain other letters of the sovereign, sealed also with the 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, literæ clause, and are recorded in the close-rolls, in the same manner as the others are in the patent-rolls.

III. A fine, which was till quite recently a very usual method of transferring an estate of freehold, was neither more nor less than an amicable agreement of a suit, actual or fictitious, by leave of the king or his justices; whereby the lands which were the subject of the action becaine, or were acknowledged to be, the right of one of the parties. In its origin it was founded on an actual suit, commenced at law for recovery of the possession of land or other hereditaments; and the possession thus gained by such composition was found to be so sure and effectual, that fictitious actions were introduced for the sake of obtaining the same security.

A fine was so called because it put an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. The party to whom the land was to be conveyed or assured, 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 agreement 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 license, 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, after leave obtained from the court; which was usually an acknowledgment from the defendants that the lands in question were the right of the plaintiff. And from this acknowledgment, or 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 feme-covert 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, "hæc est finalis concordia, this is the final agreement," and then reciting the whole proceeding at length. And thus the fine was completely levied at common law.

Various statutes regulated with great precision the mode in which all 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, that is, of all persons not parties or privies* to the fine, whatsoever was bound, 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

*Privies were such as could claim under the parties by right of blood or other right of representation.

age, recovering their liberty, returning into England, or being restored to their right mind.

A common recovery was another species of assurance, by matter of record, invented by the ecclesiastics to elude the statutes of mortmain; and afterwards encouraged by the finesse of the courts of law, in order to put an end to all fettered inheritances, and bar not only estates-tail, but also remainders and reversions expectant thereon. I was so far like a fine, that it was an action, either actual or fictitious and in it the lands were recovered against the tenant of the freehold ; which recovery, being a supposed adjudication of the right, bound all persons, and vested an absolute fee-simple in the plaintiff. This action was not compromised like a fine, but carried on through every regular stage of proceeding to final judgment. Let us suppose David Edwards to be tenant of the freehold, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Francis Golding. To effect this, Golding brought an action against him for the lands, alleging that the defendant Edwards, here called the tenant, had no legal title to the land; but that he came into possession of it after one Hugh Hunt had turned the plaintiff out of it. Hereupon the tenant appeared, and called upon one Jacob Morland, who was supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prayed, that the said Jacob Morland might be called in to defend the title which he had so warranted. This was called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland was called the vouchee. Upon this, Jacob Morland, the vouchee, appeared, and defended. Whereupon Golding, the plaintiff, desired leave of the court to imparl, or confer with the vouchee in private, which was, as usual, allowed him. And soon afterwards Golding returned to court, but Morland, the vouchee, disappeared, or made default. Whereupon judgment was given for the plaintiff, Golding, now called the recoverer, to recover the lands in question against the tenant, Edwards, who was now the recoveree: and Edwards had judgment to recover of Jacob Morland lands of equal value, in recompense for the lands so warranted by him, and now lost by his default. This was called the recompense, or recovery in value. But, Jacob Morland having no lands of his own, being usually the crier of the court who, from being frequently thus vouched, was called the common vouchee, it is plain that Edwards had only a nominal recompense for the lands so recovered against him by Golding; which lands were now absolutely vested in the said recoveror by judgment of law, and seisin thereof was delivered by the sheriff of the county. So that this collusive recovery operated merely in the nature of a conveyance in fee-simple, from Edwards, the tenant-in-tail, to Golding, the purchaser.

The supposed recompense in value was the reason why the issue in tail and remainder were held to be barred by a common recovery. For, if the recoveree had obtained a recompense in lands from the common vouchee, which there was a possibility in contemplation of law, though a very improbable one, of his doing, these lands would have supplied the place of those so recovered from him by collusion, and would have descended to the issue in tail and in remainder; who thus sustained no actual loss by the proceedings of the tenantin-tail; who by this fictitious proceeding might convey the lands held in tail to the recoveror, his heirs and assigns, absolutely free and discharged of all conditions and limitations in tail, and of all remainders and reversions.

To such awkward shifts were our ancestors obliged to have recourse, in order to get the better of that stubborn statute De Donis. The design, for which these contrivances were set on foot, was certainly laudable, the unrivetting the fetters of estates-tail, which were attended with a legion of mischiefs to the commonwealth. But, while we applaud the end, we cannot admire the means; and many expedients were accordingly suggested to get rid of these empty forms; the most obvious remedy being to vest in every tenant-in-tail of full age the same absolute fee-simple at once, which he might obtain whenever he pleased, by the collusive fiction of a common recovery.

But fines and recoveries continued to flourish in unabated exuberance until the reign of William IV.; when a strong impulse in favour of law reform was communicated to the legislature, and amongst the many acts passed at the commencement of that reign having this object in view, none has been found more successful in operation, or has obtained greater credit as a triumph of legislative skill than the Fines and Recoveries Act;* which enables every actual tenant-in-tail to dispose of the lands entailed, either for a fee-simple absolute or any less estate, as against all persons claiming either under the entail, or in remainder, or reversion, including the crown, by a simple disentailing deed; the exercise of the power thus given being subject only to certain necessary restrictions, for the preservation of existing interests. The explanation of the scheme is, however, more matter for the practising conveyancer than for the student of our laws, and need not be entered into here except on one point. I allude to one of the purposes to

This statute was prepared by an eminent conveyancer, who stipulated, it is said, that not one word of the bill should be altered without his consent. The perfection of this piece of legislation may be, and usually is, attributed to the fact that the interference of individual legislators, almost invariably mischievous when permitted, was peremptorily excluded.