property of A and give it to B. (Miller, J., in Loan Association v. Topeka, 20 Wall. 655; Hoke v. Henderson, 4 Dev. 1; 25 Am. Dec. 677.) It may dispense with formal rules, or disregard the distinction between real and personal property, or change forms and investments. (Wilkinson v. Leland, 2 Peters, 657; Norris v. Clymer, 2 Barr. 277.) The subject is admirably discussed by Judge Cooley, Constitutional Limitations, chapter 5, pages 97-106, and also pages 388, 390. (See, also, Judge Dillons' discussion of the power to waive legal requirements; Allen v. Armstrong, 16 Iowa, 508.)

(67) A grant made by the king shall be taken most beneficially for the king and against the grantee, page 347.

Similiar rules of construction are often applied to public grants by the state or United States in this country; and correctly so, with the qualification that all construction is now more liberal and equal between the parties than was formerly the case. There is of course no opportunity among us for public grants ex speciali gratia, or ex mero motu; but if there were, these would no doubt be construed more strictly, rather than liberally. Indeed, the fact that a public grant has been made as a matter of interest, for a valuable consideration, has been said with us to relax the rule, and put the grantee on the same footing with the grantee of a private person. (Charles River Bridge v. Warren Bridge, 11 Peters, 589.) The strict rule applies rather to the grant of franchises or prerogatives. (Martin v. Waddell, 16 Peters, 267; Dubuque v. Litchfield, 22 How. 66; Lansing v. Smith, 4 Wend. 9; 21 Am. Dec. 89; Hyman v. Reid, 13 Cal. 444.)

(68) Common recoveries were invented by the ecclesiastics to evade the statutes of mortmain, page 357.

It was said long ago, that when men attempt to give reasons for common recoveries they run into absurd

APTER THE TWENTY-SECOND.

F ALIENATION BY SPECIAL CUSTO

next to consider assurances by special custom, only in particular places, and relative only to ar species of real property. This therefore is rrow title; being confined to copyhold lands, customary estates, as are holden in antient or in manors of a similar nature: which,

very peculiar kind, and originally no more ancies in pure or privileged villenage, were enable by deed; for, as that might tend to delord of his signiory, it is therefore a forfeiture hold. Nor are they transferrable by matter 1, even in the king's courts, but only in the ron of the lord. The method of doing this is y by surrender; though in some manors, by custom, recoveries may be suffered of copybut these differing in nothing material from es of free land, save only that they are not sufthe king's courts, but in the court baron of the I shall confine myself to conveyances by surand their consequences.

nder, sursumredditio, is the yielding up of the esthe tenant into the hands of the lord, for such es as in the surrender are expressed. As, it may he use and behoof of A and his heirs; to the use own will: and the like. The process, in most 9, is, that [366] the tenant comes to the steward, in court (or, if the custom permits, out of court), to two customary tenants of the same manor, led there be also a custom to warrant it; and a Litt. 74.

b Moor. 637.
1 Third edition only "manners," misprint.
8 Previously, "that also have."

ities, and what they say is unintelligible jargon and learned nonsense! They have been in use some hundreds of years, have gained ground by time, and we must now take them as they really are, common assurances. (Willes, C. J., in 1 Wils. 73.) The remark might be of broader application; whenever men attempt to give reasons based on final causes and set purpose, for institutions that have grown up in time and been shaped by historical causes-instead of asking history to explain them by the facts and conviction of their own time-"they confound themselves and their readers," and spoil both the history and the philosophy of law by setting one to do the other's work.

At the same time it may be doubted whether the ecclesiastics have not had too much credit for the invention of recoveries, as for that of uses, etc. In both instances history shows that they only made use of processes that they found ready to their hands. The cases of the thirteenth century, just made accessible to us, show that both fines and recoveries were in common. use for legitimate purposes at that time; in fact, that the one answered very nearly the end of an ejectment, the other that of a modern suit for specific performance. It was only when they had dropped out of service, except as mere conveyances, that they were supposed to have originated in a fraudulent design. So recoveries were said also to have been invented to destroy terms for years; at a time when terms for years were in fact much better protected by law than they have ever been since. (See note 36, page 257.)

CHAPTER THE TWENTY-SECOND.

OF ALIENATION BY SPECIAL CUSTO

We are next to consider assurances by special custom, obtaining only in particular places, and relative only to a particular species of real property. This therefore is a very narrow title; being confined to copyhold lands, and such customary estates, as are holden in antient demesne, or in manors1 of a similar nature: which, being of a very peculiar kind, and originally no more than tenancies in pure or privileged villenage, were never alienable by deed; for, as that might tend to defeat the lord of his signiory, it is therefore a forfeiture of a copyhold. Nor are they transferrable by matter of record, even in the king's courts, but only in the court baron of the lord. The method of doing this is generally by surrender; though in some manors, by special custom, recoveries may be suffered of copyholds: but these differing in nothing material from recoveries of free land, save only that they are not suffered in the king's courts, but in the court baron of the manor, I shall confine myself to conveyances by surrender, and their consequences.

Surrender, sursumredditio, is the yielding up of the estate by the tenant into the hands of the lord, for such purposes as in the surrender are expressed. As, it may be, to the use and behoof of A and his heirs; to the use of his own will: and the like. The process, in most manors, is, that [366] the tenant comes to the steward, either in court (or, if the custom permits, out of court), or else to two customary tenants of the same manor, provided there be also a custom to warrant it; and a Litt. 74.

b Moor. 637.
1 Third edition only "manners," misprint.
8 Previously, "that also have."