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it be to do a thing that is malum in se, the obligation itself is void (51): for the whole is an unlawful contract, and the obligee shall take no advantage from such a transaction. And
if the condition be possible at the time of making it, and af[ *341 ] terwards *becomes impossible, by the act of 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 (w). On the forfeiture of a bond, or its 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 expenses, in case the forfeiture accrued by non-payment of money borrowed; the damages sustained, upon nonperformance of covenants; and the like. And the like practice having gained some footing in the courts of law (.x), the statute 4 & 5 Ann. c. 16, at length enacted, in the same
(w) Co. Litt. 206.
(.5) 2 Keb. 553. 555. Salk. 596,597. 6 Mod. 11. 60, 101.
(51) As a general rule, a deed pro was a previous adulterous intercourse turpi causa cannot be supported in equi. or concubinage. (Matthews v. L-e, ty; (see, however, Casey v. Stafford, 1 Mad. 565. Binnington v. Wallace, 3 Swanst. 429); nor, if the consider- 4 Barn. & Ald. 652. See, however, ation appears on the face of the deed, at Gibson v. Dickie, 3 Mau. & Sel. 461). common law. (Walker v. Perkins, 3 But, where a bond, or other deed, is Burr. 1569. Gray v. Mathias, 5 Ves. executed, not as a bargain for future 293. Franco v. Bolton, 3 Ves. 371). But, immorality, but as the præmium pudiexcept in behalf of creditors, (Mortimer citiæ, courts of equity will lend their v. Davies, cited in 10 Ves. 363), pro- assistance to enforce the security. perty of which a woman has obtained (Knye v. Moore, 1 Sim. & Stu. 65; S.C. actual possession, will not be taken out 2 Sim. & Stu. 260. Spicer v. Hayward, of her hands; though, (even in favor of Prec. in Cha. 115. Cray v. Rooke, Ca. the grantor's representatives), she might temp. Talb. 155. Marchioness of Anbe restrained from bringing an action nandale v. Harris, 2 P. Wms. 433). to enforce securities, founded only on A bond, however, though given as the an immoral consideration : (Rider v. præmium pudicitiæ, cannot be proved Kidder, 10 Ves. 366. Whaley v. Nor- as a debt, should the obligor become ton, 1 Vern. 483): a fortiori she could bankrupt. (Gilham v. Loeke, 9 Ves. not maintain an action upon, or obtain 614. Ex parte Ward, cited 15 Ves. specific perforinance of, a written pro- 290. Turner v. Vaughan, 2 Wils. mise for which the only consideration 340).
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 (52).
2. A recognizance is an obligation of record, which a man 2. Recognienters into before some court of record, or magistrate duly authorized (y), with condition to do some particular act; as, to appear at the assizes, 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 acknowledgment of a former debt upon record; the form whereof is,
(y) Bro. Abr. tit. Recognizance, 24.
(52) In the case of Lonsdale v. merged in another security, on which Church, (2 T. R. 389), Mr. Justice interest might by law accrue without Buller inclined to hold, that, on a bond, any such limitation. (See Moore v. damages might be recovered beyond M‘Namara, 1 Ball & Beat. 310). the penalty. But, in Wilde v. Clark- Analogous rules prevail in equity, son, (6 T. R. 304), Lord Kenyon, C. J. where, generally speaking, interest on over-ruled the opinion of Justice Bul- a bond is not allowed beyond the peler, and said, "in actions on bonds, or nalty of the bond. (Mackworth v. Thoon any penal sums, for performance of mas, 5 Ves. 331. Clarke v. Seton, 6 contracts, &c., the act of parliament Ves. 414). But, where the creditor has expressly says, that there shall be judg- been kept out of his money by an inment for the penalty, and the judg. junction, (Hale v. Thomas, 1 Vern. ment shall stand as a security for fur- 329), or other proceeding by which he ther breaches; but the obligor is not has been prevented from going on at answerable, in the whole, for more than law, (Duvall v. Terry, Show. P. C. the amount of the penalty.” However, 16), it is only reasonable that he should in the subsequent case of M'Clure v. be allowed all interest accumulated by Dunkin, (1 East, 438), where an action delays so occasioned: (Pulteney v. Warwas brought on a judgment recovered ren, 6 Ves. 92): whenever a party is on a bond, Lord Kenyon held, that in- prevented, by an order of a court of terest on the judgment might be re- equity, from proceeding to establish bis covered in damages, beyond the penalty rights at law, it is the duty of the court of the bond. This distinction was to take care that no injury shall arise taken, that, in an action on the bond to him in consequence of such interitself, interest could not have been re- ference. (O'Donel v. Browne, 1 Ball & covered beyond the penalty; but that, Beat. 263. Bond v. Hopkins, 1 Sch. after the judgment, the bond became & Lef. 44]).
“ that A. B. doth acknowledge 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., &c., 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 [ *342 ] *common obligation; being allowed a priority in point of pay
ment (53), and binding the lands of the cognizor, from the time of enrolment on record (2) (54). 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 (a), and shewn to be a charge upon
real property. 3. Defeazances. 3. A defeazance, on a bond, or recognizance, or judg
ment recovered, is a condition, which, when performed, defeats or undoes it, in the same manner as a defeazance of an estate before mentioned. It differs only from the common (2) Stat. 29 Car. II. c. 3. See pag. 161.
(a) See pag. 160.
(53) A recognizance has priority in (54) A recognizance not enrolled point of payment, over a common obli- will be considered as an obligation, or gation; but a judgment, or decree, (not bond, only; but, being sealed and acbeing a mere interlocutory decree), knowledged, must be paid as a debt by takes place of a recognizance. (Little- specialty. (Bothomly v. Lord Fairfax, ton v. Hibbins, Cro. Eliz. 793. Searle 1 P. Wms. 340. S. C. 2 Vern. 751). v. Lane, 2 Freem. 104; S. C. 2 Vern. If enrolment is allowed by special or89. Perry v. Phelips, 10 Ves. 34). der, after the proper time has elapsed, Between decrees and judgments, the this, for most purposes, makes the reright to priority of payment is deter- cognizance effectual from the time of mined by their real priority of date, its date; but, should the cognizor, without regard to the legal fiction of between the date and the enrolment of relation to the first day of Term. (Dar- the recognizance, have borrowed money ston v. Earl of Oxford, 3 P. Wms. on a judgment, the judgment-creditor 401, n. Joseph v. Mott, Prec. in Cha. will be allowed a preference. (Fother79. Morrice v. Bank of England, 3 gill v. Kendrick, 2 Vern. 234). Swanst. 577).
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(6)(55). 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, Conclusion. 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 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 monastry (c), and the failure of the general register established by King Richard the first, for the starrs or mortgages made to *Jews, in the capitula de Judæis, of which Hoveden
[ *343 ) 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 (d). And some of our own provincial divisions, particularly the extended county of York, and the populous
(6) Co. Litt. 237. 2 Saund. 47.
(d) Dalrymple on Feodal Property, 262, &c.
(55) See ante, p. 327, and note (35) thereto.
county of Middlesex, have prevailed with the legislature(e) to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted (56) by very competent judges, whether more disputes have not arisen in those counties by the inattention and omission of parties, than prevented by the use of registerst.
(e) Stat. 2 & 3 Ann. C. 4; 6 Ann. c. 35; 7 Ann. c. 20; 8 Geo. II. c. 6.
(56) But, these doubts have been the notice of the commissioners to met by very confident opinions in fa- whom a consideration of the present vour of general registration; and, it is state of the laws of real property, and believed, the propriety of such a mea- of the improvements of which the syssure has been strongly pressed upon tem is susceptible, has been referred.
† Mr. Christian observes, that “by cumbrance, before he made his own the register-acts, a registered deed shall contract or purchase. They thought, be preferred to a prior unregistered that, to admit a contrary doctrine would deed; yet, it has been decreed by Lord leave it always open to argument, wheHardwicke, if the subsequent purchaser ther sufficient notice had, or had not, by the registered deed had previous been received; and that this would notice of the unregistered one, he shall lead to endless uncertainty, confusion, not avail himself of his deed, but the and perjury; therefore, that it was first purchaser shall be preferred. (1 much better the right of the subject Ves. sen. 64).”
should depend upon certain and fixed [The legislature has been understood principles of law, than upon rules and by our courts, not to have meant, that constructions of equity. They decided, (the form of registration being unob- consequently, that nothing, not even served) actual notice of an incum- the most actual and direct notice, brance on an estate should not bind a should countervail the want of regispurchaser. (Davis v. Earl of Strath- tration. (See Mr. Hargrave's note to more, 16 Ves. 430.
Le Neve v. Le Co. Litt. 290 b). With us, it has been Neve, 3 Atk. 650. Bushell v. Bushell, much doubted, whether our 1 Sch. & Lef. 100. Doe v. Allsop, 5 ought ever to have suffered the quesBarn. & Ald. 147).
The French tion of notice to be agitated, as against courts adhered much more rigidly to a party who has duly registered his the letter of their old code respecting conveyance. (Wyatt v. Barwell, 19 registration, and held, that a creditor Ves. 439). or purchaser might plead want of re- [Registration of an equitable mortgistration, in bar of a prior incum- gage, or other incumbrance upon lands brance, though such creditor or pur- situated in a register county, is clearly chaser had full notice of the prior in- not, of itself, presumptive notice to a