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cary, as the apothecaries do without physicians, yet this is not in. sisted upon, except in case of just provocation, or necessitating thereto: Otherwise, the hinderance of the apothecaries, in the trade that of right belongs unto them, may be inconsiderable, or in a small proportion, according to what is offered in the conclusion of the precedent discourse; and that it should be any at all, is but what they have deservedly brought upon themselves.
As to empiricks swarming so numerously in the city of London, and all parts of the kingdom, it hath not been the work of the discourse to animadvert upon them; because, though many of them may be less fit to be tolerated in the practice of physick than some apothecaries, yet their practice is more obvious to publick notice; and they, having no such relation to physicians as apo. thecaries have, are in no such capacity of betraying any trust committed unto them by physicians (which the communication of their practice to apothecaries, in the nature of it, is) or of fighting against physicians with their own weapons.
In the discourse there hath been no affectation of stile or lan. guage, only an endeavour after expressions adequate to the things intended. Neither hath there been any strict ohservation of me. thod; whence some things or passages, in effect the same, are more than once, upon several occasions, brought in ; but all, in this kind, amounts not to so much, as to carry an appearance
of a designed inlargement. If the main intention thereof prore grounded, and of any good importance to be publickly taken no. tice of; the defects, or faults, are presumed not to be more, or greater, than a candid reader may connive at, or pardon.
REASONS AND PROPOSALS
REGISTRY OR REMEMBRANCER OF ALL DEEDS
AND INCUMBRANCES OF REAL ESTATES,
To be had in every County, most necessary and advantageous, as well for Sellers
and Borrowers, as Purchasers and Lenders, To the Advance of Credit, and the general Good, without Prejudice to any bo
nest-minded person, most humbly offered to consideration.
By NICHOLAS PHILPOT, of New-Inn, Oxford.
Printed by W. Hall, for Richard Davis, 1671. Quarto, containing ten Pages, IT is most apparent, that fraud and deceit increases continually;
for remedy whereof, there have been many wholesome laws made, which are no sooner published, than evaded by some new contrived artifice.
Until 27 Elis. no provision was made against fraudulent con. veyances, add then, that mischief being grown high, was a most excellent law enacted to remedy it; without which none durst pur. chase, and consequently none could sell lands in those days, as it is evident by the great number of cases controverted therein.
Yet, notwithsta ding the well penning of that sta iute, and the learned expositions upon it, this law is not, at all times, able to suppress or avoid a fraud, subtiy contrived, as by payment of mo. ney, or giving security in publick, and then repaying or restoring it in private, or the like; but, if a publick registry, or remembrance of all conveyances and incumbrances on real estates, were settled in each county, all mischiefs and inconvemencies whatso. ever, by precedent grants and incumbrances, would be prevented to purchasers and creditors, unless it were by their own wilful neglect; and, if so, they are deceived by themselves, and none else.
The usefulness, and benefit to all his majesty's subjects, of what is proposed, appears, and is demonstrable in nothing more, than the vast number of suits and actions in the Courts at Westminster, arising merely by reason of precedent and concealed incumbrana ces, which have, and daily do waste and consume the whole substance of such as arc concerned in them; and two parts in three, at least, of all suits touching real estates, depending in Westmin. ster-Hall, are sprung from this mischief.
To instance particular examples of persons decciving, and deceived in this kind, is not necessary, it being so epidemical and obvious, nor can be mentioned without scandal to such as are guilty therein ; yet, to satisfy curiosity, I could vonch and jus. tily, within the circuit of the small county wherein I live, to the value of above forty thousand pounds, at least, of them at this time in being; and, I presume, there are very few, who are acquainted with dealings in the world, that cannot demonstrate too many sad instances of the like kind, in their own respective countries.
The terror of this mischief affrights persons, who have money to Jend unto those that want it, and occasions the demanding of too unreasonable securities, which inforces men to engage their friends, as well as their lands, to satisfy scrupulous lenders; and hath so far weakened credit, as that a lender, in these days, will rather set at five per cent. to a city goldsmith, or scrivener, upon a note of his hand, than at six to a country gentleman on his mortgage, judge ment, or statute, and with a prudent foresight too ; for, in the one case, if his security proves dcfective, he spends, perhaps, all he hath to endeavour the recovery of it; and, in the other, being out of hopes, he is freed from further trouble or charge, and sits down by his first loss.
As the discovery of precedent incumbrances would be to the great benefit, safety, and satisfaction of purchasers and senders ; so would it prove no less advantageous to borrowers and sellers, by giving them credit to raise money on sale, or engagement of their lands, as occasion requires, without drawing in and thereby
often ruining) their friends to be engaged with them; or giving general securities by judgments, statutes, and recognisances, which attach their whole estates, and make them uncapable of selling or disposing any part of it, upon what emergent occasions soever ; this as to the sober and circumspect debtors.
Then, as for the young gallants, who know no more of attain. ing to estates, than the derivation of their descent, and, at sixteen years old, hop to the University, then, at nineteen, fly to Lon. don, where, by one-and-twenty, their úncurdled brains evapora. ting into froth and air, they, like young jackdaws, are enfran. chised into the society of the old rooks of the city, who, having discovered their warm nests in the country, soon lead them into the snares and lime-twigs of judgments and statutes. The principal means of their delivery and preservation will be a timely discovery of their first engagement, which the thing proposed will effect; for, when once the incumbrance they create is discovered, by the entry of it in their own country, without which no considerable sum will be raised, then the parent, if living, is fairly forewarned to check the son's prodigality ; if otherwise, the unthrift will be in. forced to discharge his old engagement. before his new will be ta. ken; and the very apprehension of discovery will cause many to forbear those follies, which, though subject unto, they abhor to have known.
When an estate is once involved in unfathomed incumbrances, then it creates suits upon suits, the expence whereof soon devours all, without either satisfying the creditors, or leaving any thing to remain for the debtor.
It is very observable how the state and condition of the seller alters the rate and quickness of the sale.
If a person, reputed to be indebted, or engaged, offers land to sell, none will adventure to deal, for fear of precedent incumbrances, unless it be upon very great advantages of an under value, in regard of the danger; when as a man, void of that prejudice, may soon sell at the utterınost value.
There are persons who drive a trade in brokerage of money, whose course is this : Upon the application of a borrower, he finds out the money, proposes the security, and names himself for one. This double kindness obtains a bountiful reward out of the sum, and, likewise, undoubted counter-security, not only against this engagement, but also all others in future, for my broker intends not to desert his fresh man so. Then, for his general indemnity, he takes a lusty previous judgment of his friend, as more conceal. able than a statute, and, upon the credit of it, makes new supplies, from time to time, as occasion requires. When the old debt is called in, as it must be once a year, he engages a-new, taking up so much more money as will supply the present occasions of the borrower, and reward the broking-surety. If the principal and his co-engaged country securities, these things being reciprocal be. twixt them, prove slack or defective, whereby the broking bonds. man is hardly set upon, he resolves to submit to the law, and takes
up his quarters in the Fleet or Marshalsees; and then, to extend his judgment, to gain some part of recompence for being undone by his kindness to his friend, whose estate is far short to recompense his damage, although he was never worth a groat more than what he got by these means. My application is, that, if these judgments came to be entered, persons of subsequent concernment would come to the discovery of them, and thereby avoid, or be timely relieved against them.
The difficulty to borrow money proceeds not from its scarcity, but the diflidence of good security ; for it is generally known, that those who need it not, and have estates, may borrow what they please on easy terms, when as persons in debt cannot procure it without much trouble and charge.
If moneyed men could safely deal in purchases or mortgages of lands, the obstruction whereof is only concealed and undiscover. able incumbrances, they wonld not keep their treasure lying by them without profit to themselves, or use to the publick, but set it abroad to benefit; and none, who are owners of land, could want money, at any time, to serve their occasions. This would promote trade and commerce betwixt all men.
The too frequent and abominable villainy of forging, erasing, altering, and antedating of conveyances, would be wholly pre. vented by the means of this registry.
It will very much assist executors to discover their testators debts of record, whereby to know how to make due administration with safety to themselves.
Objections may be made, which, though weak in themselves, yet some may think them fit to receive an answer: As
1. The matter proposed would discover men's estates to their prejudice, their debts would be made known, and so their credit and reputation weakened; and others, who desire to conceal their fortunes, would be discovered to the world, and thereby liable to taxes and burthensome offices, which now they avoid.
Answer. As to the first, the support of credit and repute, by haring poverty undiscovered, is like the concealing of a wound till it comes to an uncurable ulcer; and the effects of it can never recover the patient, but will at last destroy him, and deceive all who trust in him.
As for the other, it is most just and equitable, that they should bear and undergo tases and burthens proportionable to their estates, and not lay it on the shoulders of those who are of less ability.
21 0b. It would give opportunities to pick holes, and find out defects in men's conveyances.
Answer 1. Many persons, having once gotten a possession, hold by wrong, on pretence of conveyances which they have not, occasioning many suits for discovery thereof; which need not be, if the publick registry did demonstrate it.
2. The registering may be brief and short, setting forth the effect of the conyeyance. Besides, scarce any in these days do sell or grant land, without keeping an exact copy or counterpart, by which defects, in case there be any, will more appear, than it can do by the registry.
3d Ob. It would put purchasers to an unnecessary trouble and chargc.
Answer. The charge will be inconsiderable to the great satisfaction they receive, by being freed from the danger of precedent ti. tles; and the trouble cannot be much, when an office for the pur. pose is kept in the shire-town, or chief city of the county.
There is yet another objection, which, though perhaps it will not be openly owned, yet may covertly prove more obstructive than all the rest; and that is, the growing students of the law, who observe, with admiration, the vast wealth and honour acquired by their predecessors in their functions, may see cause of despairing the like to themselves, if this preventive remedy is set on foot. But the genuine and candid exposition of the law's use and intention, forbids all contradiction of what tends to the publick tranquillity and welfare; and, therefore, I hope, there needs not much to be said in confutation of what will not be publickly asserted.And this I dare aver that many learned lawyers have been deceived in their purchases, by precedent titles of the very money which they got in controverting the like cases for their clients.
Having thus far discoursed of the great benefit, and, indeed, ab. solute necessity of what is proposed, I shall add my conjectures of an order, manner, and likewise the charge in execution of the business in hand.
1. That the registry be kept in the shire-town, or chief city of each county, and all incountics of cities and towns, saving some great cities particularly to be mentioned, be included within the out county, it being not worth the attendance for some incounties alone.
2. That the entry of each deed, grant, fine, common recovery, will, and conveyance be in large books of royal paper bound, which are more durable than parchment, and to contain only the date
, parties names, consideration, lands granted, to whom, for what term or estate, what uses, upon what conditions or limitations
, and the endorsement or subscription of witnesses, omitting all other covenants; and this is to be done briefly and concisely, only the lands granted to be full and at large, for expedition.sake; the purchaser may bring an abstract with him, which being compared and examined by the register, and the deed signed by him, the entry may be made by the abstract.
3. If the deed contains lands in several counties, then an entry to be made in each county, as to so much as lies within the same.
4. As for judgments, statutes, and recognisances, to be briefly entered with their dates, number, rolls, and courts where record. ed, in such and so many counties, as the cognisor's lands do liein; and, in case of subsequent purchases, then where, when, and as often as such purchases shall be made, for the discovery whereof, the creditor or purchaser is to take care at his peril.