CHAPTER XXI. OF ALIENATION BY MATTER OF RECORD. 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 (1) 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 contrivan ces; (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 disabi lities; who are not bound by any judgments or decrees of the or[*345] dinary courts of justice. 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 (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 remainders, 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 expect ant 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 sugges tions, 2 Bl. Com. 346. 2 Hargr. per argum. 392. Canc. 8. 1773. McKenzie 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 21. 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. 579. 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 (6), 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 parlia ment. 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 equivalant 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). *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 upon fraudulent suggestions (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 remains 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. II. The king's grants (4) are also matter of public record. For as St. Germyn says (f), the king's excellency is so high in the law, that no freehold may be given to the king, but derived from him but by matter of re (a) Lord Clar. Contin. 162. (b) Ibid. 163. (c) Co. 138. Godb. 171. (d) Richardson v. Hamilton. Canc. 8. Jan. 1773. (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 Mc Kenzie v. Stuart. Dom. Proc. 13 Mar. 1754. (e) 4 Rep. 12. (f) Dr. & Stud. b. 1, d. 8. the forms to be observed in the passing of private statutes see ante, 1 Book, 181. et seq. (3) In New-York all laws of each session are published by the State Printer, and may be read in evidence from the printed volume. 1 R. S. 184, § 10. 12. (4) Com. Dig. Grant, G. Bac. Ab. Prerogative, F. Vin. Ab. Prerogative of the King, T. Cruise Dig. title, 34. 4 vol. 564. cord. 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 (5): which is pre[*347] pared by the attorney and solicitor general, in consequence of a warrant 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 (g)." 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 (h)." 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 (i). 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 (j): and if a feoffment of land was made by a lord to his villein, this operated as a manumission (k); 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 [*348] *such grant shall not also enure to make him a denizen, that so he may be capable of taking by grant (1). 3. When it appears, (g) 9 Rep. 18. (h) Ibid. 2 Inst. 555. (1) Finch. L. 100. 10 Rep. 112. (j) Co. Litt. 56. (k) Litt. 206. (1) Bro. Abr. tit. Patent, 62. Finch. L. 110. (5) See the mode in New-York, 1 R. S. 197. 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 grants; or if his own title to the thing granted be different from what the supposes; or if the grant be informal; or if he grants an estate contrary to the rules of law: in any of these cases the grant is absolutely void (m). For instance; if the king grants lands to one and his heirs male, this is merely void: for it shall not be an estate-tail, because there want words of procreation, to ascertain the body out of which the heirs shall issue: neither is it a fee-simple, as in common grant it would be; because it may reasonably be supposed, that the king meant to give no more than an estate-tail (n): the grantee is therefore (if any thing) nothing more than tenant at will (o). And to prevent deceits of the king, with regard to the value of the estate granted, it is particularly provided by the statute 1 Hen. IV. c. 6. that no grant of his shall be good, unless, in the grantee's petition for them, express mention be made of the real value of the lands (6). III. We are next to consider a very usual species of assurance, which is also of record; viz. a fine of lands and tenements (7). In which it will be necessary to explain, 1. The nature of a fine; 2. Its several kinds; and 3. Its force and effect. 1. A fine (8) is sometimes said to be a feoffment of record (p): though it might with more accuracy be called an acknowledgment of a feoffment on record. By which is to be understood, that it has at least the same force and effect with a feoffment, in the conveying and assuring of lands: though it is one of those methods of transferring estates of freehold by the common law, in which livery of seisin is not necessary "to be actually given; the supposition and acknowledgment [*349] thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be described to be an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices: whereby the lands in question become, or are acknowledged to be, the right of one of the parties (q). In its original 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, and continue to be, every day commenced, for the sake of obtaining the same security. A fine is so called because it puts an end, not only to the suit thus commenced, but also to all other suits and controversies concerning the same matter. Or, as it is expressed in an ancient record of parliament (r), 18 Edw. I." Non in regno Angliae providetur, vel est, aliqua securitas major vel solennior, per quam aliquis statum certiorem habere possit, neque ad statum (m) Freem. 172. (n) Finch. 101, 102. (0) Bro. Abr. tit. Estates, 34. tit. Patents, 104. Dyer, 270. Dav. 45. (6) In New-York, letters patent may be avoided by scire facias, when obtained by some fraudulent suggestion, or concealment of a material fact, or when issued through mistake, and in ignorance of some material fact, or when forfeited. (2 R. S. 578, 12.) (7) See in general, Com. Dig. Fine; Bac. Ab. Fines and Recoveries; Cruise on Fines and Recoveries; Vin. Ab. Fine; Cru. Dig. VOL. I. 91 (p) Co. Litt. 50. (r) 2 Roll. Abr. 13. index, Fine; 1 Prest. on Conv. 200 to 309; Thomas Co. Litt. 2 vol. 606 to 613; 2 Saunders Rep. index, tit. Fine. (8) In New-York, fines and common recoveries are abolished since 1 Jan. 1830. (2 R. S. 343, 24.) But as prior titles sometimes depend on fines, the knowledge of the law relative to them may be still useful. suum verificandum aliquod solennius testimonium producere, quam finem in curia domini regis levatum : qui quidem finis sic vocatur, eo quod finis et consummatio omnium placitorum esse debet, et hac de causâ providebatur." Fines indeed are of equal antiquity with the first rudiments of the law itself; are spoken of by Glanvil (s) and Bracton (t) in the reigns of Hen. II. and Hen. III. as things then well known and long established; and instances have been produced of them even prior to the Norman invasion (u). So that the statute 18 Edw. I. called modus levandi fines, did not give them original, but only declared and regulated the manner in which they should be levied or carried on. And that is as follows: 1. The party to whom the land is to be conveyed or assured, [*350] commences an action or suit at law against the other, *generally an action of covenant (v), by suing out a writ of praecipe, called a writ of covenant (w): the foundation of which is a supposed agreement or covenant, that the one shall convey the lands to the other; on the breach of which agreement the action is brought. On this writ there is due to the king, by ancient prerogative, a primer fine, or a noble for every five marks of land sued for; that is, one-tenth of the annual value (1). The suit being thus commenced, then follows, 2. The licentia concordandi, or leave to agree the suit (y). For, as soon as the action is brought, the defendant, knowing himself to be in the wrong, is 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 endangers if he now deserts it without licence, he therefore applies to the court for leave to make the matter up. This leave is readily granted, but for it there is also another fine due to the king by his prerogative, which is an ancient revenue of the crown, and is called the king's silver, or sometimes the post fine, with respect to the primer fine before mentioned. And it is as much as the pri mer fine, and half as much more, or ten shillings for every five marks of land; that is, three-twentieths of the supposed annual value (z). 3. Next comes the concord, or agreement itself (a), after leave obtained from the court which is usually an acknowledgment from the deforciants (or those who keep the other out of possession) that the lands in question are the right of the complainant. And from this acknowledgment, or recognition of right, the party levying the fine is called the [*351] *cognizor, and he to whom it is levied the cognizee. This acknowledgment must be made either openly in the court of common pleas (9), or before the lord chief justice of that court; or else before one (s) 1.8, c. 1. (t) l. 5, t. 5, c. 28. (u) Plowd. 369. (v) A fine may also be levied on a writ of mesne, of warrantia chartae, or de consuetudinibus et servitiis. (Finch. L. 278.) (0) See Appendix, No. IV. ◊ 1. (a) 2 Inst. 511. (9) All fines acknowledged in Westminster must be acknowledged before a judge or a serjeant; if there be a judge in town, and if it be acknowledged there before any of his commissioners, it is irregular. 3 Taunt. 49. Fines and recoveries in Westminster-hall of lands in Wales, or the counties palatine, are coram non judice, and therefore void. 1 Prest. Conv. 266. They may be levied in the re (y) Appendix, No. IV. 2. In the times of strict feodal jurisdiction, if a vassal had commenced & suit in the lord's court, he could not abandon $ without leave; lest the lord should be deprived of his perquisites for deciding the cause. (Robert son, Cha. V. i. 31). (z) 5 Rep. 39. 2 Inst. 511. Stat. 32 Geo. II. c. 14. (a) Appendix, No. IV. ◊ 3. spective local courts. See 34 and 35 Hen. VIII. c. 26. 43 Eliz. c. 15. 2 and 3 Edw. VI. c. 28. 37 Hen. VIII. c. 19. 5 Eliz. c. 7. Fines of copyhold lands should be levied in the lord's court, and fines of land in ancient demesne in the court of the manor. 1 Cruise Dig. 93. b. 1 Prest. Conv. 159. 266. But the court of common pleas has jurisdiction over the lands as far as they are of freehold tenure, |