« EdellinenJatka »
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 disabilities, who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of the like kind, the transcendent [ *345 ] 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 purchasor, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred. 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 (b), 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 estates, shall be too easily unsettled when they are dead, by the power of parliament.
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 with
Of the requisites
act of parlia
for obtaining an
out any reason withheld. And, as was before hinted, an equivalent 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 [ *346 ] but the parties (c).
Relief may be had against private acts when obtained by fraud; and the
courts are not bound to take
notice of them, unless specially pleaded.
II. The king's
*A law, thus made, though it binds all parties to the bill, is yet 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); 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 (2) 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 are also matter of public record. grants, or letters 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, nor
(c) Co. 138. Godb. 171.
(d) Richardson v. Hamilton, Canc. 8. Jan. 1733. M'Kenzie v. Stuart. Dom.
Proc. 13 Mar. 1754.
(f) Dr. & Stud. b. 1, d. 8.
(2) General acts are enrolled by the clerk of the parliament, and delivered to the Chancery, which enrolment in the Chancery makes the original record. Private bills are not enrolled without special suit; but the original bill, with the assent of the Lords and
Commons, and the Royal assent, indorsed, and filed and labelled with the other bills to which the great seal is annexed, constitutes the original record, and remains with the clerk of the parliament. (Comyn's Dig. Parliament, R. 3).
derived from him, but by matter of record. 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, literæ 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, literæ clause, 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: which is prepared by the attorney and solicitor-general, in consequence of a warrant from the crown; and is then signed, that is, superscribed 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 pri"vato sigillo, by writ of privy seal (h)." But there are
Practice as to
the passing of
grants or letters patent.
Mode of construction observed as to grants by the king.
some grants, which only pass through certain offices, as the admiralty or treasury, in consequence of a 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 (3): 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 besides 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 (k): and if a feoffment of land was made by a lord to his villein, this operated as a manumission (); 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 (m). 3. When it appears, 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
(i) Finch, L. 100. 10 Rep. 112.
(1) Litt. s. 206.
(m) Bro. Abr. tit. Patent, 62. Finch, L. 110.
(3) See ante, p. 18, note (8) to chap. 2; p. 22, with notes (6) and (8) to chap. 3.
different from what he 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 (k). 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 grants it would be: because it may reasonably be supposed, that the king meant to give no more than an estate-tail(): the grantee is therefore (if any thing) nothing more than tenant at will (m). 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.
III. We are next to consider a very usual species of assur- III. Fines of ance, which is also of record, viz. a fine of lands and tene- lands and tenements. In which it will be necessary to explain, 1. The
nature of a fine; 2. Its several kinds; and 3. Its force and effect (4).
1. A fine is sometimes said to be a feoffment of record (n): 1. Of the nature though it might with more accuracy be called an acknow- of fines. ledgment of a feoffment on record. By which is to be understood, that it has at least the same force and effect with
(k) Freem. 172.
(2) Finch, 101, 102.
(m) Bro. Abr. tit. Estates, 34. Tit.
(4) Our author's explanation is too complete and precise to need annotation; more particularly as there is reason to hope that much of the tech 'nicality, which now clogs every assurance by fine, will be got rid of; and a simpler mode of effecting the same purposes will be adopted. The question is under the consideration of the
Patents, 104. Dyer, 270. Dav. 45.
commissioners of inquiry into the law