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BEFORE We conclude, it will not be improper to fubjoin a few remarks upon fuch deeds as are used not to convey, but to charge or incumber, lands, and discharge them again: of which nature are, obligations or bonds, recognizances, and defeazances upon them both.

W

1. AN obligation or bond, is a deed " whereby the obligor obliges himself, his heirs, executors, and administrators, to pay a certain fum of money to another at a day appointed. If this be all, the bond is called a fingle one, fimplex obligatio; but there is generally a condition added, that if the obligor does fome particular act, the obligation fhall be void, or else fhall remain in full force: as, payment of rent; performance of covenants in a deed; or repayment of a principal fum of money borrowed of the obligee, with intereft, which principal fum is usually one half of the penal sum specified in the bond. In cafe this condition is not performed, the bond becomes forfeited, or abfolute at law, and charges the obligor while living; and after his death the obligation descends upon his heir, who (on defect of personal affets) is bound to discharge it, provided he has real assets by descent as a recompenfe. So that it may be called, though not a direct, yet a collateral, charge upon the lands. How it affects the perfonal property of the obligor, will be more properly confidered hereafter.

If the condition of a bond be impoffible at the time of making it, or be to do a thing contrary to fome rule of law that is merely pofitive, or be uncertain, or infenfible, the condition alone is void, and the bond shall stand single and unconditional: for it is the folly of the obligor to enter into fuch an obligation, from which he can never be released. If it be to do a thing that is malum in fe, the obligation itself is void for the whole is an unlawful contract, and the obligee fhall take no advantage from fuch a tranfaction. And if the condition be poffible at the time of making it, and afterwards

w See appendix, No. III, pag. xiii,

becomes

1

becomes impoffible by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation is faved: for no prudence or forefight of the obligor could guard against such a contingency *. On the forfeiture of a bond, or it's becoming fingle, the whole penalty was recoverable at law: but here the courts of equity interpofed, and would not permit a man to take more than in conscience he ought; viz. his principal, intereft, and expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages fuftained, upon non-performance of covenants; and the like. And the ftatute 4 & 5 Ann. c. 16. hath also enacted, in the same spirit of equity, that in case of a bond, conditioned for the payment of money, the payment or tender of the principal fum due, with intereft, and costs, 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 magiftrate duly authorized, with condition to do fome particular act; as to appear at the affises, to keep the peace, to pay a debt, or the like. It is in moft refpects 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 ftipulated 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 witnessed only by the record of that court, and not by the party's feal: fo that it is not in ftrict 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

* Co. Litt. 206.

y Bro. Abr, tit, recognizance, 24.

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time

time of enrollment on record". There are also other recognizances, of a private kind, in nature of a ftatute staple, by virtue of the statute 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 eftate 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 separate, and frequently a fubfequent deed b. This, like the condition of a bond, when performed, difcharges and difincumbers the estate 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: fo that purcha fors or creditors cannot know with any abfolute certainty, what the eftate, 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 seifin of the lands) this notoriety was in some measure answered; but all the advantages refulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any fufficient guard provided against fraudulent charges and incumbrances fince the difufe of the old Saxon custom 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 firft, for the ftarrs or mortgages made to Jews, in the capitula de Judaeis, of which Hoveden has preb Co. Litt, 237. 2 Saud. 47. e Hickes Differtat. epiftolar. 9.

z Stat. 29 Car. II. c. 3. §. 18. a See pag 160.

343 served a copy. How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, would remedy this inconvenience, déserves to be well confidered. In Scotland every act and event, regarding the tranfmiffion of property, is regularly entered on record d. And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legislature to erect such regifters in their several districts. But, however plaufible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattention and omiffions of parties, than prevented by the use of registers.

d Dalrymple on feodal property. 262, &c.

e

e Stat. 2 & 3 Ann. c. 4. 6 Ann.

c. 35. 7 Ann. c. 20. 8 Geo, II. c. 6.

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CHAPTER THE TWENTY FIRST.

OF ALIENATION BY MATTER OF

AS

RECOR D,

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 fubftantiate, preferve, and be a perpetual teftimony 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, especially 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 eftate is most grievously entangled by a multitude of contingent remainders, resulting trufts, fpringing ufes, executory devifes, 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 strictness 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 judgments or decrees of the ordinary courts of juftice. In thefe, or other cases of

the

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