God, the act of law, or the act of the obligee himself, there the penalty of the obligation is saved:* for no prudence or foresight of the obligor could guard against such a contingency." On the forfeiture of a bond, or it's becoming single, the whole penalty was formerly recoverable at law; † but here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; viz. his principal, interest, and expences, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained, upon non-performance of covenants; and the like. And he like practice having gained some footing in the courts of law, the statute 4 & 5 Ann. c. 16. at length 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 sum due, with interest, and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge.

8

2. A recognizance is an obligation of record, which a man enters into before some court of record or magistrate duly authorized, with condition to do some particular act; as to appear at the assises, 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 Co. Litt. 206.

W

x 2 Keb. 553, 555. Salk. 596, 597. 6 Mod. 11. 60. 101.

y Bro. Abr. tit. recognizance. 24.

8 Previously, "the statute 4 & 5 Ann. c. 16. hath also,"

- Quoted, 5 Conn. 381. Cited, 15 Wall. 351; 7 Conn. 441; 9 Conn. 240; as to act of third person, 44 N. H. 566.

+ Cited, 15 Conn. 122; 1 Mass. 320.

- Quoted, 4 Denio, 534; 7 Kan. 402; 18 Neb. 379; 7 Watts, 199; 58 Pa. St. 223; 3 Blackf, 336; 121 Mass. 84; 5 Ill. 482; 25 Miss. 54; 2 Head, 236; 27 Me. 193. Cited, 9 Ala. 829.

[ Cited, 7 Kan. 402; 12 Kan. 465; 20 Tex. 507.

"that A. B. doth acknowlege to owe to our lord the king, to the plaintiff, to C. D. or the like, the sum of ten pounds," with condition to be void on performance of the thing stipulated: in which case the king, the plaintiff, C. D. etc. is called the cognizee, “is cui cognoscitur;" as he that enters into the recognizance is called the cognizor," is qui cognoscit." This, being either certified to, or taken by the officer of some court, is witnessed only by the record of that court, and not by the party's seal : so that it is not in strict propriety a deed, though the effects of it are greater than a [312] common obligation ; being allowed a priority in point of payment, and binding the lands of the cognizor, from the time of enrollment on record. There are also other recognizances, of a private kind, in nature of a statute staple, by virtue of the statute 23 Hen. VIII. c. 6. which have been already explained, and shewn to be a charge upon real property.

3. A defcazance, on a bond, or recognizance, or judgment recovered, is a condition which, when performed, defeats or undoes it, in the same manner as a defeazanco of an estate before-mentioned. It differs only from tho common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent deed. This, like the condition of a bond, when performed, discharges and disincumbers 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

z Stat. 29 Car. II. c. 3. § 18.

a See pag. 160,

b Co. Litt. 237. 2 Saund. 47.

*Cited, 5 Ill. 479; 3 Sneed, 396.

+ Cited, 2 Sum, 541; 3 Hen, & M. 175; 43 Me. 373.

there is certainly one palpable defect, the want of sufficient notoriety: so that purchasors 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. In the antient feodal method of conveyance (by giving corporal seisin of the lands) this notoriety was in some measure answered; but all the advantages resulting from thence are now totally defeated by the introduction of death-bed devises and secret conveyances: and there has never been yet any sufficient guard provided against fraudulent charges and incumbrances; * since the disuse 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 some adjacent monastery; and the failure of the general register established by king Richard the first, for the starrs or mortgages made to [343] Jews, in the capitula de Judæis, of which Hoveden has preserved 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, deserves to be well considered. In Scotland every act and event, regarding the transmission of property, is regularly entered on record. 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 registers in their several districts. But, however plausible 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 omissions of parties, than prevented by the use of registers.

c Hickes Dissertat. epistclar. 9.

d Dalrymple on feodal property. 262, etc.

e Stat. 2 & 3 Ann. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. 8 Geo. II. c. & * Cited, 1 Yeates, 173.

t-t Quoted, 6 Neb. 269.

NOTES OF THE AMERICAN EDITOR TO CHAPTER XX.

(57) By the feudal constitution, if the vassal's title to enjoy the feud was disputed, he might vouch or call in the lord or donor to warrant or insure his gift, page 300.

The feudal origin of our law of warranty might well be doubted on the simple ground of its early application to socage lands, which were not feudal as yet, and to chattels which never were so, equally with the military tenures of lord and vassal. That it was largely developed under a system of tenure, is as clear as that the development was much assisted by the elaborate doctrine of Roman law de evictionibus. (See Dig. xxi. 2; Cod. viii. 45.) But it is equally certain that it made its first appearance in English law as a natural outgrowth of tho mode in which the title of stolen cattle and other property was traced from one possessor to another, and each in turn made responsible for the title which he had transferred, in the Anglo-Saxon law.

To satisfy one's self of the true origin of the law of warranty, it is only needful to compare with this AngloSaxon law of team, Bracton's treatment of the same topic in lib. 3, tr. 2, c. 32, de furtis, fol. 150-152, and the latter again with the full treatment of the subject in its relation to titles to land in lib. 5, tr. 4, fol. 378-399. Glanvil (lib. 3, de warrantia), adds little to the evidence, for it is not needed to establish the connection between the tenth century and the thirteenth. But it contains some instructive passages as to the earlier stages of the more elaborate feudal doctrine, and especially shows the identity of the institution in its non-feudal as well as feudal applications.

Glanvil says nothing of escambium or recompense by a warrantor: the warranty as yet is merely a mode of tracing and proving title. But a century later the doctrine of escambium is fully developed, and Bracton's treatment of it, and the cases he quotes (lib. 5, tr. 4, de warrantia, c. 7, fol. 387 b) show that it has become a sub

ject of practical importance. This is due, doubtless, to the increased value of land as an article of commercc. The doctrine is one upon which English judges could have found little authority in any other system, though the methods of the Roman law were no doubt of the greatest help in preparing them for their task. Bracton points out the different cases that may arise, and the principles upon which they should be disposed of, in a way that reminds one of the best decisions of the great chancellors who moulded English equity. In some points the resemblance becomes a real identity; as in the "marshaling," to use the later expression, of the warrantor's means to satisfy different claims, when be has not enough for all. (Ib. 27, fol. 388 b.)

The resemblance throws light on the mode in which our law even then was developed, and its relation to Roman law. It tends to prove that the supposed importation of foreign law in Bracton's time may have been only that same use of a discipline derived from it, and of some of its most general principles, which we find in modern equity judges-and no more.

Upon the origin of the law of warranty see remarks of Sir T. Twiss in his introduction to volume 6 of Bracton. He shows it to be English, or at least not to be derived from the Leges Barbarorum, or other known sources and his suggestion as to Roman jurisprudence as distinguished from their written law will deserve attention when he shows us where that jurisprudence I could have been found. He notices also the intimate connection between vouching to warranty and questions of title, in connection with the statute of Hayles. But at that period there is abundant evidence of the close connection of all the forms into which the doctrine afterwards divided. We have only to show that the proof of title to land and chattels alike after the conquest was made in the same manner as that of chattels before that period, to establish the origin of war