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been discovered earlier than the 28 Henry II. (a). Glanville, indeed, speaks of Fines being“ well known" in his time; and he is supposed to have written in Henry II.'s reign. Grave doubts, however, have been raised as to the genuineness of the work ascribed to Ranulph de Glanville, Chief Justiciar to Henry II.; partly on the ground of its being written in Latin not very impure, in an age when that accomplishment was unlikely to be possessed by a layman (6); and partly on internal evidence, which cannot be easily reconciled with the circumstances of Glanville's life (c). While one writer seems disposed to assign the authorship to a justice itinerant of the same name (d), another inclines to give it to a William Glanville, who sat in the Curia Regis in the 7 & 8 Richard•I. (e). Lord Lyttelton supposes that the treatise was written by some ecclesiastic, under Glanville's direction (f).
Ancient mode of
XVI. According to Madox, the ancient mode of conducting a fine was this:- The parties, having come to an amicable agreement concerning the matters in dispute, and mutually sealed a chirographum expressing it, appeared in the King's court, either personally or by deputy, and there recognised the concord or agreement in the presence of the justices;
(a) Hunter's Pedes Finium, of this opinion.
which concord, upon payment of a fine to the Crown, was enrolled in the Court. Sometimes the parties came to an agreement in Court, and had the concord at once drawn up, and there recorded; in which case each party received a counterpart (a). In course of time, Fines came to be usually passed without a chirographum intersealed, upon a placitum commenced by the King's writ, as by writ of covenant, assize of mort d'auncestor, &c. Some remnant, however, of the ancient practice continued; for until the abolition of Fines in the present reign, pedes finium, or chirographs, as they were called, were prepared by an officer styled the chirographer (6).
XVII. Another mode of conveyance was by Re- Recoveries. covery. This species of assurance (which, as well as the one just described, has been recently abolished) was contrived by the religious houses, for enabling them to evade the statute De religiosis, 7 Edward I., which inhibited them from taking any gift or conveyance of lands in mortmain. Setting up a fictitious title to the Origin of. land intended to be gained, they brought an action to recover it against the tenant, who collusively abstained from making any defence; whereupon judgment was given for the religious, who thus recovered the land (c). This ingenious mode of evading the statute of Edward I. was checked by another of the same reign. Ecclesiastical ingenuity, not yet exhausted, soon devised, however, another method, afterwards restrained by the statute 15 Richard II. c. 5, by which
(aMadox, Form. Diss. p. 14. 351.
Feoffment to uses.
lànds were granted to a person, capable of purchasing, to the use of the religious house: “ thus distinguishing,” says Blackstone, " between the possession and the use, and receiving the actual profits, while the seisin of the lands remained in the nominal feoffee; who was held by the courts of equity (then under the direction of the clergy) to be bound in conscience to account to his cestui que use for the rents and emoluments of the estate." It is to this invention that we are indebted for the introduction of uses and trusts; the foundation, as Blackstone remarks, of modern conveyancing.
to stand seised.
Origin of Bar- XVIII. The equitable doctrine of uses gave rise, gains and Sales, and Covenants indeed, to two new species of conveyance, wholly
unknown to the common law. When one bargained and sold an estate to another, or covenanted to stand seised of an estate to the use of one of his near kindred, equity converted the bargainor or covenantor into a trustee for the bargainee or covenantee; and bound him to account for the profits of the estate. Now, when the statute 27 Henry VIII. conjoined the possession to the use, “bargains and sales” and “covenants to stand seised,” which before were only equitable assurances, became, in fact, legal conveyances. To prevent, however, clandestine assurances of freeholds by means of bargain and sale, it was enacted in the same session, by statute 27 Henry VIII. c. 16, that such instruments should not operate to pass a freehold estate, unless made in writing, indented, and enrolled. No provision, however, was made for bargains and sales for years, and this omission gave rise to the
modern assurance by Lease and Release. Though Lease and Resomewhat complex, the modus operandi of this conveyance may be easily explained. A bargain and sale Modus operanbeing made for a year, the bargainor becomes seised to the use of the bargainee. To this use, the statute conjoins the possession. And as the bargainee thus acquires an actual vested estate, he is enabled to receive a release of the reversion, which enlarges his particular estate into a fee. ance, it is said, was first contrived by Mr. Serjeant Moore; but the merit, if any, of the invention belongs to others; for before the Statute of Uses land was conveyed by lease and release, differing from the modern mode only in this, that instead of a bargain and sale, which needs no actual entry, a common-law lease was made, which required possession to be taken before the lessee was capable of receiving a release of the reversion. When the reversion was conveyed, not to the tenant in possession, but to a stranger, the
proper mode of assurance was a “ Grant,” to which the Grants, tenant's attornment, until rendered unnecessary by a modern statute, was essential.
XIX. Passing over Exchanges, Partitions, Confirm- Wills. ations, and Surrenders, as calling for no particular observations in such an historical sketch as the present, I shall advert only to the conveyance by Will. In the Anglo-Saxon times lands were devisable, but upon the establishment of the feudal polity in this country, that privilege was abolished; and until the 32 Henry VIII., with some local exceptions, no one could alien an estate by will. An indirect mode indeed was adopted,
through the medium of the doctrine of uses; feoffments being often made to friends, in trust to dispose of the estate after the feoffor's death according to his direction; and the Court of Chancery compelled the feoffees in trust to perform them. By the Statute of Uses, however, this practice was clearly done away; whereupon the 32 Henry VIII., commonly called the Statute of Wills, gave to an owner in fee, under certain restrictions, a power of devising his estate (a) -- a power that, as already explained in the first volume (6), has in modern times been subjected by the legislature to various regulations, which in this place it is unnecessary to repeat.
Collections of Forms of As. surances.
Boke of Instru
XX. Of the various collections of Forms of Assu
rances that have been published for the use of pracThe Chartuary titioners, the earliest I know of is The Chartuary,
printed in the Boke of Justices in 1534, and published also under the title Carta feodi simplicis cum
litera attornatoria &c. This was followed by a Dr. Phayer's much more complete work, the Boke of Instruments, ments, in 1543. which appeared in 1543; and in about forty years
passed through not less than nine editions. The Forms are arranged topically, under the heads of advowsons, presentations, letters missive, patents of gifts, letters of significavit, leases, releases, deeds of sale, obligations, acquittances, letters of attorney, letters patent, bills of complaint, answers, and other petitions, and letters testimonial. The second edition, published in 1546, contains various
(a) Bacon, xiii. 240; Blackstone, ii. 375.
(6) Book iii. chap. vii,