T 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 IMPARTIAL THOUGHTS 
 
 UPON THE 
 
 BENEFICIAL CONSE Q^U E N C E S 
 
 INROLLI NG 
 
 Deeds, Wills, and Codicils affeding Lands, 
 
 THROUGHOUT ENGLAND AND WALES. 
 
 B Y 
 
 FRANCIS PLOWDEN, Es(^ 
 
 CONVEYANCER, 
 
 LONDON 
 
 TRINTED FOR E. BROOKE, IN BELL-VARO^ 
 TEMPLE-BAR. 
 
 M.DCC.LXXXIX.
 
 r
 
 To THE PUBLIC. 
 
 FROM my experience of the mifchiefs arlfing 
 from the imperfe6tion of the prefent regifter- 
 ing Afts for the Counties of York and Middlefex, 
 as well as from the v/ant of an univerfal Inrolment 
 of Deeds and Wills afFefting Land, I feci it my 
 duty to apprize the public of- the evil they are fuf- 
 fering, and to fuggeft a remedy) that will not only 
 eradicate the diforder, but add ftrength and vigour 
 to the part affeded. For the fatisfaftion, however, 
 of the public and of myfelf, I firft fubmitted it to 
 the confideration of all the Judges and Law Officers 
 of the country, to which I willi it to be applied; 
 mod of whom have done me the honour to exprefs 
 the ftrongeft approbation of the plan, and a wilh to 
 fee it carried into execution. I do not fay this 
 with a view to bias the opinion of any individual, 
 but to prove that I have acquitted myfelf of every 
 preliminary duty to the public, before I prefented 
 to them this publication. 
 
 It is now offered to them as the only mean, by 
 which their previous knfc of the expedient can be 
 tried and known. 
 
 As it is my defign to reduce the feveral a6ts of 
 parliament upon the fubjeft, to one plain, confift- 
 ent and efficient ftatute, I expecft that a candid 
 public will approve of my going rather largely into 
 the inconfiftencies and mifchiefs of fuch ads, as I 
 have thought neceflary to be repealed. 
 
 A 2 The
 
 t iv ] 
 
 The confiderations, motives, and reafons for my 
 digefting and propofing to the public a plan for an 
 univerfal Inrolment of all Deeds and Wills affect- 
 ing Land, will, I hope, have their full weight in 
 forming the opinions of individuals upon the ex- 
 pediency of it. Thefe are, to the Land Owner., the 
 encreafe of the value of his land, by clearing and 
 confirming his title to it, and facilitating the means 
 of fettling, charging, or felling it : to the Monied 
 Many the multiplication, certainty, and faith of 
 land fecurities : to the Lawyer, the eafe, fatisfac- 
 tion, and furety both of his client and himfelf in 
 all negotiations refpefting lands : to the Financiery 
 the general rife of the value of land in the market, 
 which muft proportionably raife the price of the 
 funds : and to the Senator, the good and quiet of 
 the fubjed:, the confiftency and certainty of the 
 law, and the welfare and profpcrity of the nation. 
 
 FRANCIS PLOWDEN. 
 
 Adelphi 'Terrace, 
 
 CON.
 
 C O N T E N T S. 
 
 JNTRODUCTION, Page i 
 
 Reajons for the Publication^ 2 
 
 Apology to the Profejfion, ■ 3 
 
 General Ideas of our Law, 3 
 
 The ancient Tenures of Land in England^ 5 
 
 The free Power of aliening Land in a commercial 
 
 Country^ 6 
 
 The Notoriety of the fi7-fi AlIs of Alienation 'of 
 
 Landy 7 
 
 The Plaiifibility of popular Prejudices^ 1 1 
 
 Proofs of the ancient Notoriety in the Alienation of 
 
 Lands ^ 1 4 
 
 OfUfes, 15 
 
 Reafons of J'ome Deeds not being inr oiled ^ 16 
 
 Of Lands being de^-jifeable^ I q 
 
 Of the Introduction of Secret Cofiveyances^ a i 
 
 Further Proofs cf the ancient Notoriety of all 
 
 Deeds affecting Lands, 22 
 
 Thefiiperior Neceffity of fuch Notoriety in the fre- 
 
 fenty more than in any pafi Age, 24 
 
 How Grievances are Jometimes redrejfed in Par- 
 
 Uamentf i-j 
 
 The
 
 [ vi ] 
 
 ^The Ahjurdity and Inefficacy of the ^th and ^tb 
 IViUiam and Mary^ to prevent Fraud by clan-^ 
 dejline Mortgages ^ Page 3 1 
 
 Of Notice^ 35 
 
 The different Opinwis of our Courts upon the Effects 
 of Notice, 39 
 
 The Determination of all the "Parliaments of France 
 upon the Notice of a Deed regijieredy 42 
 
 FraEiical Applications to the foregoing Suhje^ls, 43 
 The Cafes of Rickman v. Morgan j and Pearfon 
 V. Morgan, 46 
 
 Of Title-Deeds, 5 1 
 
 A fuppofed Cafe upon a Title under Deeds not in- 
 rolled, 52 
 A real Cafe anonymous, upon fraudulent Mort' 
 
 g^g^^y S3 
 
 Of the Regijlry of Deeds and Wills hy different 
 
 A5ls of Parliament, ^2> 
 
 Of the Effects of certain Words in Deeds, and the 
 
 modern Forms of Conveyances, 67 
 
 The Ccrfequences of a Deed not regiflered, 6^ 
 
 TBe Coffequences of a Deed regiftered, 70 
 
 The Mif chiefs of the regijlerin^ A5is, 73 
 
 A Regijlry ought to be a Confervatory of Men's 
 
 Title-Deeds, 75 
 
 There appear to have been fuch Confervatories by 
 
 the ^th lien. W, and by the ^d and ^th Edw, 
 
 VL 76 
 
 Of the Inrolment of Deeds by common Law, 77 
 Of the Acknowledgment of Deeds by common 
 
 Law^ " 80 
 
 Of
 
 [ vii ] 
 
 Of the Iwolment of Deeds hy StatiiHy Page 8 2 
 Of the Fffe5ls of inr oiling Deeds y 82 
 
 Of the Inrolment of Roman Catholic's Deeds ^ 86 
 Of the IfKonftJlency of the nth and nth of Wil. 
 
 III. and the id Geo. I. ^ 89 
 
 Of the Inconveniences of the 2^ Geo. I. 91 
 
 Of the unconjlitutional Hardfhip of the 3^ 
 
 Geo. I. 92 
 
 Of further Inconveniences of the 3^ Geo. I. 93 
 A fup-pofed Cafe upon the 'Title of a Paf)iji before 
 
 the Repeal of any Part of the nth and 1 2th of 
 
 Wil. III. 94 
 
 Of the unintended Effects of repealing a Part of the 
 
 1 1 th and i -j.th of Wil. III. g^ 
 
 Experimental Effe^i of the 3^ Geo. I, ^6 
 
 Of the Decifions of our Courts upon the nth and 
 
 nth of Wil. in. ' 98 
 
 Of the Inrolment of Deeds hy a Judge's Fiatj 105 
 Of the Inrolment of Willst no 
 
 IIow the Right of Adyniniflration probably came 
 
 to the Ordinary, 1 14 
 
 'The Spiritual Courts had not the original Cognizance 
 
 cf Wills, 116 
 
 Lands were formerly devijeable, 120 
 
 The Norman Feudal Syfleni incompatible 'With the 
 
 Power of devifing Lands y 121 
 
 Of the different Modes of inrolling Deeds in the 
 
 different Courts, 123 
 
 The Obje^ions againfi the Notoriety of Deeds and 
 
 Wills affe^ing Lands ^ 1 27 
 
 Of
 
 [ viil ] 
 
 Of the Ahjurdity of entering Devifes cf Land in a 
 Court which has no Cognizance of them. Page 1 29 
 
 Draught of a Bill for requiiing the Inrolment of 
 all Deeds, ^c. ^c 1 34, 
 
 Qhfcrvations upon the Draught of the Bill, 17^ 
 
 I M P A R-
 
 IMPARTIAL THOUGHTS, &c. 
 
 lntrodu5lory Confiderations. 
 
 MOST perfons are in the habit of allowing 
 merit, and even of giving praife to every 
 a(5l, which proceeds from the legiflative wifdom of 
 the Britifh parliament. Yet if we refle6t coolly 
 and deliberately upon the circiimftances, under 
 which a6ts of parliament are ofcen paffed, we fhall 
 find, from the motives, reafons, and occafions of 
 bringing in the bill, the perfons or party, by whom 
 the bufinefs is managed and conduced, and the 
 means, by which it is carried through the houfes, 
 that the real good of the country was not the prin- 
 ciple, upon which the bill was grounded, and con- 
 fequently, that the welfare of the country is not the 
 confequence of its having pafled into a law. It 
 will be needlefs to adduce inftances of this truth ; 
 fince every perfon, who will beftow even a pafTing 
 thought upon the fubjeft, muft call to his recoi- 
 leftion many occurrences, to which it mofh forcibly 
 applies. The perfonal wifh of the Sovereign, the 
 private views of a minifter, the intereft of a party, 
 the concealed arts of interefted individuals, the in- 
 con fiderable impetuofity of the propofers, the igno- 
 rance of the managers, the inexperience of the 
 draftfmen, and the inattention of the members to 
 what may not perfonally intereft them, are the 
 
 B various
 
 [ i 3 
 
 various caufes of aiTts of parliament being amended, 
 explained and repealed. 
 
 It is in fa(ft impofilble, that any human intuition 
 can be fo perfeftly comprehenfive, as to forclee and 
 prevent many confequences of a law, which it was 
 the intention and expectation of the legidators to 
 have obviated in paffing it. To fome Ipeculative 
 minds, this may be a humiliating confideration j 
 but it muft convince every one^ that upon any at- 
 tempt to alter the lav/, it becomes highly advifeabic 
 to take every previous ftep to confult with and in- 
 form thofe perfons in particular of the fubjeft, 
 who are competent to judge of, or who may be 
 interefted in or affefted by the alteration. When 
 this necefiary precaution has been attended to, and 
 the plan has been previouily approved of, no re- 
 fponfibility can lie with thofe, under whofe imnrie- 
 diate fandlion the propofal is brought forward and 
 carried into execution. 
 
 Reajcns for this Fnhlicatlm. 
 
 In the courfe of praftice as a conveyancer, I 
 have met with fcveral inftances, in which great 
 advantages have been produced from a regular in- 
 rolment of deeds and wills affediing lands j and 
 in which, very great inconveniences and important 
 lofTes have been incurred and fuffered from the 
 r«?^i/^/'_y of deeds and wills in certain counties, ac- 
 cording to feveral ads of parliament now in force. 
 Upon turning the fubjeft repeatedly in my mind, 
 I became decifively convinced of the expediency, 
 and even necelTity, of inrolling all deeds and wills 
 affefting lands throughout England and Wales. 
 With a view fairly to commit this expediency and 
 necefiity to the judgment of the public, I have 
 ventured to commit my thoughts upoii it to the 
 prefs.
 
 [ 3 ] 
 
 To provoke invefligation and enquiry, is a de- 
 monftration of the intention to lead to truth. 
 
 Apology, 
 
 To the gentlemen of nny profeffion, I muH- apo- 
 logize for deviating in the courfe of my reafoning 
 from that technical formality and precifion, with 
 which legal fubjeils are ufually treated. My wifh 
 is to adapt my reafoning to non-profefTional minds, 
 and make them as m.uch mafters of the aibjcct, 
 upon which they are now railed upon to judge, as 
 if they had devoted much of their time to the fludy 
 of the law. I have alfo for thcfe reafons been fo 
 particular and full in my quotations, as generally 
 to fave my readers the trouble of reforting to the 
 books, from which I, ha-^^e taken them. 
 
 General Ideas of our Lazv. 
 
 Semper eadem is the refpedtable and wife device 
 of our jurifprudence, which, as Lord Bacon fays(^), 
 €ver favours the law of nature -y and tNat ilands 
 upon no other bafis. But it is not from the tem- 
 porary variations and fuperficial appearances, that 
 we are to judge of this famene^s; it is the funda- 
 mental principle, to which we are to look up In, 
 the fuccefllon of ages, the variation of manners 
 and cuftoms, the diverfity of languages, the variety 
 of characters, in the monarchy of Solomon, the re- 
 public of Rome, and the government of Great Bri- 
 tain, from Lapland to the Brafils, owtjame prin- 
 ciple of nature a(5tuates the whole. So from the 
 code of Alfred, to the prefent complicated m.afs 
 of ftatutes and precedents m law and equity, through 
 all the various forms and changes of our govern- 
 
 ^d) Bacon's argument in the Exchequer Chamber on Calr 
 via's cafe. 
 
 B 2 menc.
 
 t 4 1 
 
 ftient, the fame principles, upon which the law was 
 founded in its primitive fimplicity, will be found 
 to fupport and uphold it in all its extent of multi- 
 farious modifications j as the fame fource of juices 
 caufes the acorn to fplit, and feeds the luxuriant 
 oak. I do not term that an innovation of the law, 
 which is interwoven with its firfl principles : it 
 often becomes requifite, that particular laws fhould 
 be newly modelled and adapted to the exigencies 
 of the prefent manners, timies, and ciicumftances* 
 Upon this principle was it, that Mr. Locke, (a) in 
 the 79th article of his Carolina laws, enafted, 
 " that to avoid a multiplicity of laws, which by 
 " degrees always change the right foundations of 
 ** the original government, all a6ls of parliament 
 " whatfoever Ihall at the end of one hundred 
 ** years after their enafting, refpeftively ceafe and 
 *' determine of themfelves without any repeal." 
 For as, during the courfe of a century, many 
 changes will neceffarily take place in the cuftoms, 
 manners, and habits of the nation -, (o fhould the 
 laws alfo change with them : but as the former 
 changes cannot be produced, but upon one inva- 
 riable principle of nature, fo ought not the latter 
 to be varied nor nev.^ly modelled, but upon the 
 original principles of the law. 
 
 The law of nature is the general ground-work of 
 every municipal law ; and the exigencies of civil 
 fociety have founded fome general principles com- 
 mon to all communities : yet, from the locality, 
 temperature, and other peculiarities of certain fo- 
 cieties, thefe principles have branched out into a 
 great diverfity of laws. I jQiall pafs over the ori- 
 ginal rights acquired by occupancy, or claims efta- 
 blifhed in the law of nature ; and take up our con- 
 fiderations from the cultivated ftate of fociety, when 
 
 («) Locke's Works, Vol. III. p. 674. 
 
 this
 
 [ 5 ] 
 
 this ifland, or at lead the fouthern part of it, was 
 eftablilhed in a regular and certain order of govern- 
 ment. 
 
 Re of on s of Policy. 
 
 The geographical fitnation of this ifland, has 
 adapted it peculiarly to all the purpofes of trade 
 and cominerce : and it is eflentially important to 
 die welfare and flourifliing ftate of trade and com- 
 merce, that the landed property of the country 
 fliould be eftablifhed and kept upon fuch a foot- 
 ing, as to render it ferviceable and ufeful for all 
 mercantile purpofes. Thus land, to become ufeful 
 to commerce, muft be marketable and negociable ; 
 and to be fo, muft be invariably clear and evident 
 in its title. 
 
 Of the ancient 'tenure? of Land. 
 
 The prcfent modern tenures of lands in England 
 and Wales, have infenfibly formed themfelves 
 into fome reafonable and confiftent principle, upon 
 the gradual decline, and at length the total aboli- 
 tion of the feudal fyftem. It is curious to obferve, 
 that every afFeftion of the land, even under th® 
 prefent tenures, is only accountable for upon fomc 
 feudal principle. To anfwer my intended purpofe, 
 we will throw back our ideas to the year 800, at 
 which time. Sir Henrv Spelman fays, the feudal 
 fyftem was the law of nations in our weftern world ; 
 for although in the time of our Saxon anceftors, 
 the feudal law had footing in this ifland, as well as 
 in other parts of Europe, yet it was not attended 
 with all the rigor and forms, which '•vere afterwards 
 imported and introduced into it by ?he Normans. 
 The opprelTive multiplicity of tenures and other 
 feudal confequences, which were never completely 
 aboliflied till the days of King Charles the Second, 
 Vvtre abulive emanations of an original principle 
 B 3 of
 
 [ 6 ] 
 
 of fimplicity and liberty, to which if we rfcur, and 
 upon it revive, or even introduce an ufage conge- 
 nial with the prefent times, manners, and circum- 
 ftances, a Ihadow of imputation cannot lie againft 
 us of attempting to alter the law or infringe the 
 conftitution. 
 
 ^he free Power of aliening Land in a commercial 
 Country. 
 
 The experience of many centuries has mofl in- 
 controvertibly proved, that the free power of alien- 
 ing land, v>'ith certain modifications and reftric- 
 tions, is efientially requifite in a commercial coun- 
 try ; and in diis power of alienation, is moft clofely 
 interwoven the neceflary notoriety of the land- 
 owner's title. Lord Mansfield, in a learned and 
 elaborate argument upon the nature of a dilfeifin, 
 in 'Taylor v. Horde (a)y fays, that " the different fta- 
 " tutes, which had given free liberty of alienation, 
 " and abolillied all military tenures, had left us little 
 '^ but the names of feoffment, feifm, tcnui-e, and 
 '^ freeholder, without any precife knowledge of the 
 " thing originally fignified by thefe founds. Co- 
 '*" pyholds, and the cuftomary freeholds in the 
 " North, retain faint traces, in imitation of the old 
 " fyftem of feudal tenures. It is obvious, how a 
 " man may vifibly be the copyholder or cuftomary 
 " freeholder de fa^o, in prejudice of the rightful 
 ** tenant ; and it then was as notorious, who was 
 " the feudal tenant de fa^lo, as who now is de fa5io 
 " incumbent of a living or mayor of a corpora- 
 " tion." 
 
 {a) I Burr. p. io8. 
 
 Notoriety
 
 [ 7 ] 
 
 Notoriety of the fir ft A^s of Alienatwi of Land. 
 
 When this free power of alienation had once 
 gained footing, the moft folemn notoriety attended 
 every aft of alienation : the firft mode of transfer- 
 ring landed property was, in the unlettered days of 
 our warlike anceftors, by the corporal tradition and 
 ihveftiture in poflelTion of the aliened lands ; and 
 this w^ done with the utmoft folemnity, coram pa- 
 ribus de vicineto ; or it was rendered public and no- 
 torious by fome other fymbolical gift or tradition : 
 {a) " At firft many lands and eftates were collated or 
 " beftowed by bare word of mouth, without writing 
 " or charter, only with the lord's Avord or helmet, or 
 " a horn or a cup; and very many times with a fpur> 
 " with a currycomb, with a bow, and fome with an 
 " arrow: but thefe things were in the beginning of 
 "^ the Norman reign : in after times this falhion was 
 ^^ altered." But as in procefs of time, great in- 
 conveniences were experienced from the evidence 
 of titles refting folely upon the perfonal memory 
 of the wltneffes to fuch a6ts of alienation, written 
 conveyances were Introduced; the firft form of 
 which vvas the deed of feoffment : and although the 
 words of the deed, which in fa6t was a tranfaftion 
 only between the grantor and grantee, contained 
 the nature of the transfer, and the duration of the 
 eftate intended to be thereby given ; yet the feoff- 
 ment, or rather the transfer or alienation, was not 
 perfefted till the livery of feifin^ which was made 
 coram 'paribus dc vicineto^ who indorfed upon the 
 back of the deed of feoffm.ent their atteftation as to 
 the manner, place, and time of fuch livery. Nam 
 feudumftne inveftiturd mdlo modo conftitui poteft {li) ; 
 
 (rt) Selden's Janus Anglorum, c. 3. p. 54, 
 
 \b) Wright 37. 
 
 B 4 nor
 
 [ 8 1 
 
 nor was the transfer or alienation complete, till, as 
 Fleta (a) lays, ft juris et Je'ifin<£ conjun5iio. 
 
 So fays Mr. Juftice Blackftone : (^) " Livery 
 " of feifin, by the common law, is necefTary to be 
 " made upon every grant of an eftate of freehold 
 " in hereditaments corporeal, whether of inheri- 
 " tance or for life only : and in leafes for years, an 
 " adlual entry is necefTary to veft the eftate in the 
 " leflee ; for the bare leafe gives him only a right 
 " to enter, which is called his intereft in the term, 
 or interejj'e termini ; and when he enters in pur- 
 fuance of that right, he is then, and not before, 
 in poflefllon of his term, and complete tenant 
 for years. This entry by the tenant himfelf 
 ferved the purpofe of notoriety, as well as livery 
 " of feifin from the grantor could have done. Thus 
 " is it obfervable, how upon the old principles 
 " the modern rules of law are grounded ; for, even 
 " to this day, you cannot grant a freehold to com- 
 *' mence in future : the reafon is, that at common 
 *' law fuch a grant could not be made without li- 
 " very of feifin j and this livery being an adual 
 " tradition of the land, muft take efFcft in prefenti, 
 " or not at all." 
 
 It is obvious, that there can be no livery of 
 feifin of incorporeal hereditaments, or of fuch things 
 as, by lawyers, are faid to lie in grant ; as advow- 
 fons, commons, rents, feignories, reverfions, Sec: 
 Res incorporates y quajunt ifjumjus rei, vel corporiin- 
 hccrens traditionem non patiuntur. (c) Therefore, as 
 Mr. Juftice Blackftone further obferves, " Thefe 
 " things pafied merely by the delivery of the 
 " deed ; but then fuch grant, together with the 
 " attornment of the tenant, were held to be of 
 
 (^) Fleta 2. 1. 3. c. 15. § 5. 
 (S) Blackft. Com. vol. 2. p. 314. 
 (c) Bradlon, 1. 2. c. 18. 
 
 ^^ equal
 
 [ 9 J 
 
 *' equal notoriety with, and therefore equivalent to 
 " a ffofFment and livery of lands in immediate 
 " pofleffion (a):' 
 
 As early then, as landed property could be 
 transferred or aliened by deed, we trace this firft 
 eflential principle; that the utmoft notoriety always 
 attended the a6l of alienation. And although in 
 procefs of time, either by the arts or inattention of 
 conveyancers, modes have been devifed and efta- 
 blifhed of pafTing lands in a very fecret manner, 
 yet it certainly never could have been the intention 
 nor fpirit of that law, which, as we have feen, re- 
 quired fuch determined notoriety in every a6t of 
 alienation of land. This want of notoriety has fre- 
 quently been a fubjeft of difcuITion, both to law- 
 yers and ftatefmen : and it is therefore no lefs 
 aftonifl-iing than true, that the fubjeft has never 
 been thoroughly inveftigated, and confequently 
 neither faithfully reprefented nor properly under- 
 ftood. The further enquiry into it at prcfent 
 fliall be introduced in Mr. Juftice Blackftone's 
 words (^). 
 
 " In the ancient feudal method of conveyance, 
 ** (by giving corporeal feifinof the lands) this no- 
 " toriety was in fome meafure anfwered ; but all 
 " the advantages refulting from thence are now 
 " totally defeated by the introduction of death-bed 
 " devifes and fecret conveyances ; and there has 
 " never yet been any fufficient guard againfl frau- 
 ** dulent charges and incumbrances : fince the dif- 
 " ufe of the old Saxon cuftom of tranfadling all 
 " conveyances at the countv court, and entering a 
 " memorial of them in the chartulary or leger 
 *' book of fome adjacent monaftery, and the failure 
 " of the general regifter eftablifhcd by King 
 
 (a) Blackn. 2 V. c. 20. p. 317. 
 (^) Elacklt. 2 vol. c. 20. p. 343. 
 
 " Richard
 
 [ lo ] 
 
 <' Richard the firft, for the flarrs (a) or mortgages 
 ** made to Jews, in the Capituld de Judeis, (}) of 
 *^ which Hoveden has prefer ved a copy. How fir 
 " the eilablifiiment of a like general regifcer for 
 " deeds and wills, and other afts affefting real 
 " property, would remedy this inconvenience, de- 
 " ferves well to be confidered. In Scotland, every 
 " ad. regarding the tranfmiflion of property is re- 
 " gularly entered on record ; and feme of our own 
 " provincial divifions, particularly the extended 
 " county of York and the populous county of 
 " Middlcfex, have prevailed with the legiflature to 
 " ere6t fuch regifters in their refpe6live diftri6ls." 
 
 In Ireland alfo, all deeds affefting- lands are re- 
 giRered, by which notoriety of the incumbrances, 
 many important obje6lions againft lending money 
 upon mortgage in that kingdom, are done away. 
 From very frequent enquiries into the nature and 
 confequences of inrolling deeds in Scotland, and 
 
 (a) The Hebrew word Jhetar fignifies a deed or contrail : if 
 th'jrefore the firll fylhible be abbreviated, or rather if the 
 whole word be contraiftcd into one iyilable, we (ball have the 
 found, by Vv'hich a modern Northern Jew would pronounce the 
 word Jiar. Hence it is more p'obable, that the Star Chanj- 
 fccr was fo called, than from its ftafry cieling. 
 
 {h) It would be ill judged indeed to draw a line of parity 
 between the reafons for inrolling deeds and wills in the prefent 
 age, and thofe, which induced government in the i nh century 
 to pafs thefe laws relating to the Jews : when vvc reflect, that 
 thev were pafTcd in an age, when either the Jews would, or 
 Chriftians could otherwife believe, that they would yearly, on 
 Good Friday, crucify a child of Chnftian parents, in derifion 
 of the crucifixion of our bleffed Redeemer. (Molloy, 1. 3.) 
 However, upon the general principle of avoiding cavilling and 
 differences between adverfe parties, " every Jew was made to 
 f* fwear upon his roll, that all his debts, and pawns and rents, 
 *' and all his goods and pofl'efTions he fhould caufe to be in- 
 *' rolled, and that he fhould conceal nothing," &c. &c. It 
 is a vulgar ax'iom, *' believe every man honclt, but deal with 
 him, as if he were otherwife :" many hold this good as to indi- 
 viduals, but all mud think it holds good as to Icgiflative bodies. 
 
 regiftcring
 
 [ " ] 
 
 rcgiftcring them in Ireland, I have not found, that 
 in any one inftance, any realbnable complaint had 
 ever been made either againfl: the ufage or the ef- 
 fedls : on the contrary, I have obferved much good 
 thereby produced and felt (<?). 
 
 In fupport of thefe ideas, it is very fatisfa6lory 
 to find, they are not new : in the preface to Baron 
 Gilbert's learned Treatife of Tenures, it is faid, 
 " He has clearly explained the rcafon of thofe pub- 
 *' lie ceremonies and afts of notoriety, required 
 " by the feudal lav.', for the acquiring, poffefllng, 
 " and transferring of feuds, and which formerly 
 *' were equally requifite in our common law te- 
 " nures, viz. liveries, attornn.ents, &c. ; the difufe 
 " whereof has not only occafioned an uncertainty 
 " in many titles and cftates, but alfo introduced 
 " that mifchievous practice of private and fecret 
 " feoffments, by kafe and releafe, covenants to 
 " ufes, &c. and- which, in confequence, has intro- 
 " duced a deluge of perjuries, forgeries, and other 
 " corruptions over the common law, and which 
 " can never be reftificd, or the mifchief redreffed, 
 " till the commion law be, in that particular, ref- 
 " tored to thr anciv^nt method of paffing eftates in 
 *' pais, or by fome public a6c of notoriety." 
 
 Popula" Prejudices not to he dijregarded. 
 
 I do not think, that popular prejudices are al- 
 ways juftly grounded, and reafonably entertained j 
 but they fcldom fubfiit without fome reafon, that 
 is ad captmn vul^ij and within the ready apprehen- 
 
 {a) There has always appeared to me much more order 
 reaibn and judgment, in all legal tranfadions in Scotland, than 
 in Ireland: nor, in my opinion, can there be a more marked 
 inftance of that fuperiority, than in the inrolment, inllead of 
 tlie regillry of deeds. I fliall ipeak more fully hereafter of the 
 very ellential defeats and milchiefs of the mutilated memorials 
 of regiftered deeds in this kingdom. 
 
 fion
 
 [ .2 ] 
 
 fion of the community. Thus it is well known, 
 that in the purchafe of landed eftates, and much 
 more in the negociations for the loan of money 
 upon miOrtgage, or by way of annuity or rent charge, 
 a decided preference is generally given to lecuri- 
 ties in the regiftering counties over thofe, in which 
 no regiftry is eftablifhed : and for what reafon ? 
 but becaufe generally there is more confidence 
 between the buyer and feller, and the lender and 
 borrower, when the lands lie in a regiftering coun- 
 ty, than when they lie in other places; and the 
 lands are there found to be more marketable and 
 negociable. And what can fo efFeftually raife the 
 price and value of them, as this defirable quality ? 
 What can fo materially promote the trade of a 
 country, as the eafe and fecurity, with which the 
 merchant may inveft his gains in the purchafe of 
 real property or land ? What can fo effcntially raife 
 the value of land to the owner, as the facility, with 
 which he can render it fubfervient to every purpofe 
 of providing for his family, relieving his diilrefies, 
 or even gratifying his pleafures and inclinations ? 
 Thefe again are no new ideas: A fmall pamphlet 
 publillied in the year 1696, intituled, A Propcfal 
 for the ereufir.g County Regifiers for Freehold hands, 
 JJpewing the great Ufe and Benefit of them, has thefe 
 words, " It is the cheapnefs and facility of procur- 
 " ing money, that is the benefit dcfigned to the 
 *■'■ borrower, as certainty and fecurity is to the 
 " lender. If we gain thefe two points, the principal 
 " benefit of land is gained, which is to make them 
 *' funds for carrying on the trade of the nation, to 
 *' the public and private benefit." I'he vulgar 
 prejudice then in favour of the regiftering counties, 
 is grounded upon thefe pl-aufible reafons ; that 
 therei^y the value of the land is increafed to the 
 owner, by its becoming more negociable and mar- 
 ketable i and titles and fccuriries become there- 
 
 by
 
 [ 13 ] 
 
 bv more clear and unobjectionable to the monicd 
 men for inveding their money in purchales or 
 mortgages. Plaufible as thefe reafons are, we are 
 now to examine how far they are juft and aftually 
 cxift. 
 
 In the feqiicl of my refearches, I am happy in 
 moving upon a principle, which evidently is found- 
 ed in the ancient laws of this country ; and that 
 much experience may be called in to the aid of my 
 argument, not only from our filler kingdoms, but 
 alio, in a very great meafure, from our own. We 
 have feen, that the firft method of conveying land 
 by a written deed, v/as done with the greatelt pub- 
 licity and notoriety ; and therefore, after fuch a 
 conveyance, there was not fuppofed to remain any 
 fecret title or fupprelTed right in any other. The 
 perfon, to whom fuch conveyance v^as thus public- 
 ly and notorioully made, was fuppofed to acquire 
 thereby fuch a right, as he could maintain againil 
 all men (a). " By the ancient feudal law, no 
 man could alien without a licence from the lord 
 of the fee, and this licence was part of the no- 
 toriety on fuch alienations. And if they alie- 
 nated v/ithout fuch licence, the feud was for- 
 feited. Nor could the lords part with their ma- 
 nors and fervices without the attornment of 
 their tenants, &c." But we are now gone by 
 the time, when, as Lord Bacon fays (^), " all 
 ' inheritances could not pafs, but by a6ls overt and 
 ^ notorious, as by deeds livery and records." And 
 it mufi: be the convi6lion of every perfon, who 
 turns a thought to the fubje6l, that as the occafions 
 of charging and felling lands are become now more 
 frequent, than they have heretofore been, it is be- 
 come now therefore more rcquifite than ever, I 
 
 (<j) Gilb. Tenures of continual Claim, p. 46. 
 {b) Bac. reading on the Statute of Ufes, p. 329. 
 
 do
 
 [ '4 1 
 
 do not fay to alter or new model the forms of con- 
 veyances and alienations of lands, but rather to re- 
 {tore them to their ancient mode and principle. 
 
 Proofs of the ancient Notoriety in the Alienation of 
 Lands. 
 
 There is no higher authority than the ftatutes 
 of the realm, both as to the law, which they enafl; 
 as to the ufages and pradiices, which they recite. 
 I fhall therefore upon this principle, quote the 
 firft words of the preamble of the famous ftatute of 
 ufes, pafied in the 27th year of the reign of King 
 Henry VIII. (A. D. 15.35), of which Lord Bacon 
 fays {a)j it is a law " whereupon the inheritances 
 " of this realm are toffed at this day like a fhip 
 " upon the fea {b)." " Where, by the common law 
 " of this realm, lands, tenements and hereditaments 
 " be not devifable by teftament, nor ought to be 
 '^ transferred from one to another, but by folemn 
 " livery and feifin, matter of record, writing fuffi- 
 *' cient made bond fide^ without covin or fraud j 
 " yet neverthelefs divers and fiindry imaginations, 
 " fubtie inventions and praftices have been ufed, 
 *^ whereby the hereditaments of this realm have 
 '^ been conveyed from one to another by frau- 
 " dulent feoffments, fines, recoveries, and other af* 
 *' furances craftily made to fecret ules, intents' and 
 *^' truRs; and alio by wills and tcftaments fomc 
 " time made by nude parolx and words, fome 
 " time by figns and tokens, and fome time by 
 " writing," &c. &c. Then reciting feveral mif- 
 chiefs produced thereby, " to the utter fuhverficn of 
 " the ancient common laws of this realms' the pre- 
 
 {a) Bacon's readinw upon this ftatute, p. iz. 
 (^) ?.-j\h II. VIII. c. lo. 
 
 -7 amble
 
 [ 15 ] 
 
 amble concludes, " For the extirping and extln- 
 " guilhment of all fuch fubtle praftifcd feofFments, 
 " fines, recoveries, abufes, and errors heretofore 
 " iifed and accuftomed in this realm, to the fub- 
 ** verfion of the good and ancient laws of the fame ; 
 " and to the intent, that the King's Highnefs, or 
 *' any other his fubjecls of this realm, fhall not, 
 ** in anywife hereafter, by any means or inventions, 
 *^ be deceived, damaged, or hurt, by reafon of fuch 
 " trufts, ufes or confidences," &c. And it then 
 ena6ts, with very great propriety, that the uje of the 
 land JJjall be ever coupled with the pojfejjicn -, thus 
 endeavouring to reftore the purity and fimplicity 
 of the common law of alienation or transfer of 
 land. 
 
 Of Ufes. 
 
 In order to evade the ftatute of mortmain, and 
 afterwards to cloak and prefcrve {property from 
 CDnfifcaticns, in the contentions between the houfes 
 of York and Lancafter, the dodlrine of Ufes was 
 introduced, countenanced and eflablifhed ; and 
 upon the fubtilty of veiling the ufe of the land 
 in one perfon, and retaining the pofTefTion of it 
 in another, the plain honourable civil purpofes of 
 the common and ftatute laws of this realm were 
 defeated ; and a labyrinth of abftrufe do6lrine was 
 eftablifiied and monopolized by the then profeiTors 
 of the law, v/hofe ungenerous principle was to keep 
 their clients in all pofTible ignorance, that they 
 might reap an unfair advantage from the mifchie- 
 vous fubtleties, they had artfully introduced. 
 
 After this ftatute had palled, the parliament in 
 the fame feflion found it advifeable to enacV, that 
 the only method, by which it was then known, that 
 a freehold could be transferred indifcriminately 
 from man to man, (and which had arifcn out of 
 
 die
 
 t i6 ] 
 
 the do6lrlne of ufes) which was by bargain and 
 fale for a pecuniary confideration, Ihould retain 
 fome notoriety or publication, equivalent at leaft 
 to that of a feoffment with livery and feifin. So 
 Lord Bacon (a) : " But the parliament, that made 
 " that ftatute, did forefee, that it would be mif- 
 ** chievous, that men's lands Ihould fo fuddenly, 
 " upon the payment of a little money, be con- 
 *^ veyed from them, peradventure in an alehoufe 
 " or in a tavern, upon {trainable advantages ; did 
 " therefore gravely provide another aft in the fame 
 *' parliament, that the land, upon payment of this 
 " money, fhould not pafs away, except there were 
 " a writing indented made between the faid two 
 " parties, and the faid v/riting alfo within fix 
 " months inrolled in fome of the courts of Weit- 
 " minfter, or in the feflions rolls in the Ihire, 
 " where the land lieth, unlefs it be in the cities 
 " or corporate towns, where they did ufe to 
 " inroll deeds ; and there thef flatute extendeth 
 ^^ not" (/>). 
 
 Reafons of Jome Deeds not being inrolled. 
 
 Another mode of conveyance fprung out of this 
 wily doftrine of uf^s, which, becaufe the confider- 
 ation of fjch deed neceffarily was marriage or 
 confanguinity, it was not perhaps thought by the 
 legidature open to fuch fraud nor deceit; and as it 
 did not pafs the land out of the owner's family, it 
 might not require the fame degree of notoriety and 
 
 (rt) Ufe of the Law, p. 150. 
 
 {[)) The particular cuitoms of inrolling deeds in fome towns 
 and corporationp, may fairly be prefumcd to have been adopted 
 and ellabliflicd, upon the idea of a more frequent circulation 
 of property in the place where the cuilom prevailed ; or that it 
 was a rtrK!:l of an univerfal ufage throughout the nation, retain- 
 ed in particular places : both which reafons llrongly enforce 
 the neceflity of an univerfal inrolment. 
 
 publication j
 
 [ 17 ] 
 
 publication ; and therefore fuch a deed, which Is 
 called a covenant to jland J'eijcd to iifesy needs not to 
 be inrolled. Lord Bacon {a) ipeaks of it, as fol- 
 lows. " A man that hath a wife and children, being 
 " king'sfolks, may by writing under his hand 
 " and feal agree, that for their or any of their 
 *' preferment he will (land feifed of his lands to 
 " their ufes, either in tail or fee, {o as he fhall {ito. 
 *' caufe : upon which agreement in writing, there 
 " arifedi an equity or honcfty, that the lands jfhould 
 ** go according to thofe agreements ; nature and 
 *^ reafon allowing thefe provifions, of which equi- 
 " ty and honefty is the ufe, and the ufe being cre- 
 " ated in this fort, the ftatute of 27 H. VIII. 
 *' before mentioned conveyech the eftate of the 
 '•^ land {b), as the ufe is appointed. And fo this 
 ** covenant to ftand feifed to ufes is at this day, 
 *' fince the faid ftatute, a conveyance of land; and 
 " with this difference from a bargain and fale, in that 
 " this needeth no inrolment, as a bargain and fale 
 " doth, nor needeth not to be in writing indented, 
 *' as a bargain and fale muft : and if the party, 
 ** to whofe ufe he ao-reeth to ftand feifed of the 
 " land, be not wife or child, coufin, or one, that he 
 " meaneth to marry, then will no ufe rife, and fo 
 " no conveyance." 
 
 Without departing from the time, of which Lord 
 Bacon fpeaks, all other affurances of land then in 
 ufage were, as the fame ftill are, made by matter of 
 record; and confequently with that fpecies of no- 
 toriety, which I am endeavouring to fhew, ought 
 to attend every deed and will affed:ing land. 
 
 Mr. Juftice Blackilone fays (^), " Affurances 
 
 (fl) Bac. ubi fupra, p. 151. 
 
 {b) i. e. by coupling the ufe witli the poireffion, or transfer- 
 ring the ufe into poiTeHion, 
 
 (.) Black. Com. Vol.11. 1.2. c. 21. 
 
 C " by
 
 [ 18 ] 
 
 ^^ by matter of rpcord call in the fanftlon of a 
 " court of record to fubfta, riatc, pr. ftrve, .md be 
 " a perpetual teftimonv of tae transferring of pro- 
 " perty from one mm lo another, or of its eilablifh- 
 ^*' ment when already transferred. Of this nature 
 *' are, i% Private ads of parliament; 2% The 
 " king's grants ; 3% Fires ; 4^", Common reco- 
 " veries." It would exceed the intention of m.y 
 defign, to explain the nature of thefe four modes of 
 affe(5ting landed property : fuffice it to fay, what 
 every one knows, that they are methods, by which 
 a title to land may be acquired, or by which the 
 land muiy be afFefted ; and that not one of them 
 can be pra6lifed without the moll folemn and pub- 
 lic notoriety. 
 
 Dedu^fions, 
 
 If it be expedient to render public and notorious 
 the a6l, by which the moil fure and folid title to 
 land is acquired ; it muil be for fome reafons^ 
 which enforce that expediency : whatever reafons 
 thefe are, they muft efientially counteraft the pro- 
 priety or expediency of any title to land being 
 acquired without fuch notoriety ; for a majore ad 
 minus valet conjequentia. If the king in perfon, 
 who is not prefumed to err; if his judges in court, 
 whofe judgment is mandatory ; if the legiflative 
 body, whofe authority is uncontroulable, cannot 
 transfer land, or give title unto it without the fo- 
 lemnity of publicity, notoriety, and perpetuity, a 
 fortiori^ individuals, wliofe judgment is always 
 fallible, whofe integrity is often fufpicious, whofe 
 artifices are fometimes refined and almoft impe- 
 netrable, ought not to be permitted to transfer 
 land or give title unto it, without at Icaft equal 
 publicity, notoriety, and perpetuity. 
 
 When die legiflature in the 27th year of King 
 
 Henry
 
 t '9 ] 
 
 Henry VIII. enabled, that every bargain and f ale 
 ef lands jhould he by deed indented and inrolledy 
 there was no other method or form known or 
 pradifed of felling or transferring land^ (except 
 by deed of feoffment with livery and fcifirt). And 
 indeed this deed of bargain and fale itfdf \^3.s a 
 novelty introduced into the law, together with or 
 fpringing out of the doflrine of ufes. And I may 
 here properly again ixy with Judge Blackftone {^a), 
 *' It \t. iniprafticable, upon our prefent plan, to pur- 
 " fue the dodrinc of ufes through all the refine- 
 " ments and niceties, which the ingenuity of the 
 " times, CaboLindinr,' in lubtle difquifiiions) deduced 
 " from this child of the imagination, when once a 
 *' departure was permitted from the plain fnnple 
 " rules of property eftabliPned by the ancient law." 
 As thefe fubtle inventions and innovations had 
 for centuries been weaving rhemfelves into the tex- 
 ture of the law, and thus had become, as it were, 
 of a piece with the law itfelf, it was difficult for 
 parliament to devife at once a remedy perfe6tly 
 commenfurate with the mifchief, without perhaps 
 venturing upon the too hazardous experiment, of 
 abolifhing the whole fyftcm, with all its mediate 
 and immediate confequences. 
 
 Lands devifeahle. 
 
 From the change of laws introduced by the 
 Normans, to the days of Henry VIII. lands were 
 not devifeable, which was found by experience to 
 be inconvenient ; though by fpecial cuflom, as in 
 London and elfewhere, lands might be given by 
 wills J and this was a relidl of the Saxon liberties 
 or laws, by which lands were devifeable. Upon 
 this doflrine of ufes thenj a perfon wifhing his land 
 
 (a) Black. Com. Vol. II. c. 20. p. 33. 
 
 C 2 after
 
 [ --0 ] 
 
 after liis death to go in a different fuccefllon from 
 the defcent, which the law would have caft it in, 
 conveyed during his life his land to a friend in 
 truft ; and then by his will would declare how 
 his friend fhould difpofe of it. This declaration 
 by will raifed an uje^ which gave the benefits and 
 profits of the land to the perfon intended to be be- 
 nefited by the will, whilft the land itfelf was le- 
 gally and really vefted in the perfon, to whom it 
 had been conveyed, and to whom livery and feifin 
 had been made ; and he was called the feoffee 
 in truft. But the ftatute of ufes, which transferred 
 the ufe into polTefTion, necefTarily defeated this 
 ihifting evafion of the lav/; for after this ftatute, 
 the raifing of an ufe in land was giving the real 
 poirelTion of the land ; and this would have been 
 to all intents and purpofes a devife of lands, which 
 ever fince the introduftion, or rather the new mo- 
 delling of the feudal fyftem by the Normans, had 
 not been allowed. It was however foon found 
 expedient to alter the law in this regard ; and by 
 the 32d of Henry VIII. perfons were enabled to 
 give and devife lands by will, under certain re- 
 ftri(5lions. 
 
 Here parliament, as in many other inftances, 
 changing the ancient law or remedying an evil, 
 was inattentive to one of the moft material confe- 
 quences of fuch innovation ; which was, to provide; 
 for the folemnity and notoriety of that a6l, by which 
 land is given to a ftranger, and the right heir, 
 whom the law ever favors and proteds, is difinhe- 
 rited and deprived or defeated of his legal rights, 
 in a manner certainly more liable to deceit, fraud, 
 art and undue influence, than any a(5l or deed, 
 wliich operates and takes its full effe6l, during the 
 lifetime of tlie iz-rantor or donor. But of this want 
 of notoriety in wills of land, I ftiuU fpeak more 
 fully licreafter. 
 
 Intro-
 
 [ i. ] 
 
 Introdu5lion of fecret Conveyances, 
 
 In procefs of time, ilill upon this do6lrine of 
 iifes, the ingenuity of conveyancers, and particu- 
 larly of Sir Orlando Bridgman, before who^n more 
 than two thirds of the titles in the kingdom, after 
 the civil wars, had been laid or fubmitted^ intro- 
 duced a new mode of conveyance, to which (for 
 reafons never publiclv given, for they would not 
 ftand the ted of public inveftigarion and judgment) 
 they gave the full effedls or feoffmeni: with livery 
 and feifin, or bargain and fale inrolled; but with- 
 out the notoriety either of the one or of the ether. 
 This was a conveyance by leaje and releaje^ which 
 is now become the moft common conveyance of 
 lands. For in the dodrine of ufcs, r. very frrange 
 and unaccountable rule of law had prevailed and 
 been eftabliflied, viz. that no iije could be limited on 
 an uje; (a) by which it was underllood, that, if A. 
 for money bargained and fold his land to B. it 
 raifed an ufe in the land to B. which ufe being 
 transferred into pofleflion by the flatute of ules, 
 no further limitation could be engrafted upon it. 
 Now it often happens, tha: there is occafion to li- 
 mit lands to A. and his heirs, to the ufe of feveral 
 different perfons in remainder, and for different 
 eftates J to fome for life, to others in tail, either male 
 or female ; and to another in fee, as h uf jf.lly the 
 cafe in marriage-fettlements. For cs^cr^^iple, the 
 owner of the land generally conveys it by Icafe and 
 releafe to two truflees, (who are called the releafees 
 to ufes and truftees of the inheritance to prefcrve 
 the contingent remainders, &c.) to the ufe of him- 
 felf for life, then to the ufe of the truftees to pre-^ 
 ferve the contingent remainders from being de- 
 feated;, but to hold it in truft for the tenant for 
 
 {a) Over 155. 
 
 P 3 ^^^>
 
 [ 22 ] ' 
 
 life ; then to the iife and intent of providing a 
 jointure for the intended wife, or to her for life in 
 like manner as to himfelf ; then to the ufe of other 
 truftees for a term of years, for the purpofes of 
 better fecuring the jointure and providing portions 
 and maintenances for the younger children j then 
 to the illue of the m.arriage in tail, with perhaps 
 feveral voluntary remainders to relations or friends ; 
 and trie ultimate remainder to the fettlef in fee- 
 fimple. 
 
 All thefe different limitations could not be made 
 by a bargain and fale inrolled, hecauje an ufe 
 xannot he limited upon an ufe. So from this doc- 
 trine of ufes, various innovations have at different 
 times been introduced into the practice of convey- 
 ancing : but aS the principles, upon which th. le in- 
 novations were grounded, were heterogeneous from 
 thole of the ancient law -, fo no wonder, that the 
 introduflors of them lofb fight of the leading fea- 
 tures of the old law, which were notoriety and 
 perpetuity, as we have feen in feoffments with 
 livery and feifin, and bargains and fales inrolled. 
 It would exceed the extent of my plan, and be ir- 
 relevant to the fubjeft under confideration, to en- 
 ter m.ore fully into the nature, operation, and ef- 
 fe6ts of a conveyance by leafe and releafe : fuffice 
 it to have faid, that by the general law of this 
 country, they need not now be inrolled, no more 
 than wills or any other private conveyances of 
 land, (except bargains and fales for a pecuniary 
 confideration.) 
 
 Further Proofs of the ancient Notoriety of all Deeds 
 affecting hands. 
 
 Copyhold eftatcs arc nothing more nor lefs, than 
 certain cuftoms or ufages, which, though formerly 
 general and comnrion to other lands^ have by par- 
 ticular
 
 [ 23 3 
 
 ticular privilege, grant, oi < vcn chance, been re- 
 tamed and preferved in different manors, after the 
 geraral tenure of lands throughout the kingdom 
 was altered and chanfj;ed. Although many of thefe 
 cuftoms vary in different manors, yet there is one 
 principal iifage, vvhich is, I believe, univerfally and 
 unexceptionably common to every manor, in which 
 any copyhold culloms or ufages are preferved. And 
 this is, that no copyholder (or tenant holding by 
 copy of court roll) lliall or mav pafs away, change, 
 alter, or affe6l his land, without making this deed 
 or aft in fome fhipe notorious in the manor court. 
 Nothing fo ftroni^ly proves an ancient ufage, as 
 the prefervation of it' in particular fubordinate ju- 
 rifdiftions : and there is no method fo fure of prov- 
 ing the exiftence of a law or ufage, as to fhew 
 that parliament has taken its benefits or abufes into 
 condderation. So early then as in the year 1384 (a) 
 " at the complaint of the faid commonalty made 
 **■ to the lord the king in the parliament, for that 
 " great difherifon" (^x^^ rd'^/^^/zo, or lofs of the right 
 heir's title) " in times pad was done (or happen- 
 " ed) to the people, and m.ay be done, by the falfe 
 *' entering bf pleas, rafmg of rolls, and changing of 
 " verdifls, &c. it is accorded and affented, that if 
 " any judge or clerk be of fuch default, fo that 
 *' by the fame default there enfueth difinherifon of 
 '' any of the parties, &rc. &c. he fhail be pii- 
 " nifhed by fine and ranfom at the king's will 
 " and fatisfy the party." Can any thing more 
 conclufively evince, that in thofe days the deeds 
 and muniments to men's eftates were inrolled and 
 recorded, that is, rendered public, notorious, and 
 perpetual ? I now hooe I have faid enough to 
 prove, that the requifition of notoriety and perpe- 
 tuity to every aft, by which land is affected, is 
 
 («) 8 Ric. 2. c. 4. 
 
 C 4 congenial
 
 [ 24 ] 
 
 congenial with the principles of the ancient law, 
 and ther 'fore that it ought to be univerfally efta- 
 bliflied throughout the kingdonn. 
 
 // is more necejfary in the prefent^ than in any pajl 
 Age, to render every A5f, by zvhich Land is affected, 
 public i notorious^ and perpetual. 
 
 In the reign of Queen Elizabeth, a motion was 
 made in the houfe of commons for leave to bring 
 in a bill to prohibit ufuryj by which nothing 
 more in thofe days was meant, than placing out 
 money at intereft : for it is fince the regulating of 
 the rate of intereft, that the word ujury has been 
 appropriated to every illegal excefs of that rate. 
 A great llatefman then in the houfe oppofed it, 
 and concluded his argument for the continuance 
 of it, with this memorable aphorifm : Let any 
 man jhew me a country without uJury, and I will 
 fljew him one without trade or riches : than the 
 truth of which, nothing is more clear nor certain. 
 As th'^n the facility of borrowing money upon 
 reafonable intereft, is elTential to the trade and 
 commerce of a country ; fo it follows, that the 
 more certain and fatisfaftory the fecurity is, upon 
 whic!i the money borrowed is placed out, the 
 more conducive is it to the lending and borrowing i 
 and by how much more ufeful and fubfervient to 
 thefc ends the land is rendered, by fo much will 
 its value and price be raifed ; and there needs no 
 argument to prove, that by the value and price of 
 land, the national funds mufb rife and fall ; and 
 tii^iv flu6tuation is the true and juft barometer of 
 the credit and profperii.y of the nation. It necefTa- 
 rily follows, didi whatever raifes the value anc^ 
 price of land, muft alfo incrcaf- the price of ftock, 
 and confequrntly tend to pre note the credit and 
 profperity of die kingdoin. Upon the fame prin- 
 ciple
 
 [ 2S ] 
 
 ciple will it appear, that in proportion to the dif- 
 ficulties of raifing money, nnuft the circulation of 
 property be checked; and the free circulation of 
 property is evidently effential to the flouriilnng 
 Hate of a commercial country. A title to land be- 
 comes more complicated, abftrufe, and difficult, 
 in proportion to the number, variety, and intri- 
 cacy of deeds, through wr'rh it is deduced. If 
 that notoriety, which was required by the ancient 
 law, had attended every transfer of landed proper- 
 ty, much intricacy and uncertainty in titles would 
 have been avoided : but we mud argue, as well 
 as judge from fadls. The free power of aliena- 
 tion, the flourifliing (late of trade, the increafe of 
 wealth in ciiculation, the accumulation of ftatutes, 
 judgments, and decrees refpefting the rights and 
 titles of land-owners, the ignorance of many, who 
 undertake to praftife as conveyancers, the refine- 
 ment of fome, and the diffufe prolixity of almoft 
 all pradlitioners, mult ever tend to increafe the 
 intricacy and uncertainty of the land-owner's title 
 to his eftates. Now upon the admiffion of the 
 principle, that the circulation of property muft 
 ever be in proportion to the extent of trade, we 
 muft infer, that as the trade of this country never 
 was fo extenfive, as in the prefent hour, and confe- 
 quently luxury and refinement (from which it will 
 be difficult to abftra<ft extravagance and diffipation) 
 never were fo prevalent in this country, as at pre- 
 fent, fo therefore never were there fo many occa- 
 fions and calls for money by the diftrefled, or for 
 fecurities by the affluent. What then follows ? At 
 no period was it fo neccfTary and expedient, for the 
 good of commerce and profperity of the nation, 
 that the loan of money upon land fliould meet with 
 few obftrudtions and difficulties. 
 
 If thefe incidental reafons did not fubfift, yet 
 
 there
 
 [ =6 ] 
 
 there are demonftrative arguments in favour of my 
 opinion j for it is uncontrovertable, that all fjrure 
 purchafers and mortgagees muft elTcntiaMy find 
 their titles, if not more difficult, at leafl more 
 prolix, and coniequently open to more perplexity, 
 doubt and defect, than the perfons, under or 
 through whom they claim : for- to whatever be- 
 fore exifted, they fuperadd the chances of a new 
 negotiacion being affe<fted by ibme omifTion, flaw, 
 ineificacy or fraud. How necefTciry then it is, 
 that a counterpoife (iiould be thrown into the 
 fcale againft an evil fo pernicious ifi its efFeds ! 
 And what can ar.fvver that purpofe fo effe6tually, as 
 fecuring notoriety and perpetuity to the titles of 
 every defcription of land, fo that purchafers and 
 incumbrancers may read their own titles upon the 
 face of the records ? 
 
 i fhail aiTuredly meet credit when I fay, or ra- 
 ther repeat, that every realbn for eftablifliing an 
 iiniverfal inrolment acquires accumulated flrength 
 by procefs of time ; and it is now a full century, 
 fince Sir Matthew Hale wrote a treatife, Jhezving 
 how ujefuly Jafe^ reafonahle, and beneficial the inrol- 
 ing and regifiering of all conveyances of lands may 
 be to the inhabitants of this kingdom -, in which he 
 fets out with enumerating the mifchiefs pro- 
 pounded to be remedied, which are: " ift. The 
 " great deceit committed by perfons of fecret judg- 
 " ments, mortgages, conveyances and fettlements, 
 " whereby purchafers are oftentimes deceived and 
 " creditors defeated : and this the more confider- 
 " able in England, becaufe indeed the great inland 
 " trade we have, is the trade of buying and fell- 
 " ing of lands ; and the great fecurity, that is 
 *' ordinarily given to creditors and lenders of mo- 
 " ney, is by fccuiity of land. i. The multitude 
 *' of chargeable and diilicult fuits in law occa- 
 
 " iioned
 
 [ 27 ] 
 
 * fioned bypreconveyances, which probably would 
 ** be avoided and kflcned, if all men's eflates lay 
 *^ open to the view of others." 
 
 It nriuft be remarked, that Sir Matthew Hale 
 wrote this treatife many years before any of the 
 regiftries were eftabiiflicd in any of the three 
 ridings of the county of York or in the county 
 of Middlefex; that he talks indifcriminately of 
 inrolment and regiftry, which are in fa6l very ma- 
 terially different ; that h*^' had not felt the expe- 
 rience of either : nor had he the happinefs to fee 
 the trade of his country fiouriili in any degree^ 
 comparative with its prefent ftate. 
 
 Parliamentary Redrefs of Grievances. 
 
 It is no lefs true than wonderful, that when an 
 abufc or mifchief is felt, the party aggrieved, hav- 
 ing no legal nor equitable remedy, or perhaps 
 being unwilling to hazaid the expcnce of an action 
 or fuitj uncertain and doubtful in its iffue, applies 
 to fume perfon in parliament for redrefs of the 
 grievance. The matter originated in a particular 
 cafe, and a bill is brought in to obviate or pre- 
 vent the mifchief; the origin, progrefs, and effc6l 
 of which, were never fubmitted to the confideration 
 of thofe, who were competent to fee and corredl 
 and prevent the mifchief : but parliament, gene- 
 rally inclined to check evil and promote good, 
 gives credit to thofe, who undertake to bring in the 
 bill, v/hich tends to thefe general ends, not only 
 for their laudable intentions, but alio for their 
 having fully confidered and devifed the proper and 
 effectual means of attaining the ends propofed by 
 the bill. Thus when, in the year 1692 (<2), an a6t 
 palfed to prevent frauds by clandefline mortgages^ 
 
 [a) 4 & 5 William and Mary, c. 16,
 
 [ -s ] 
 
 it was a thing, to which no oppofition coald be 
 siven : and it is well known, how few members of 
 either hoiife are, or I prefume then were, com- 
 petent to judge of the fubjeft; and the few pro- 
 feffional members in the houfe might not take 
 any a6live part in the bill, unlefs profefTionally or 
 officially engaged in the pafling of it. 
 
 Let us confider firft the preamble of this aft : 
 " Whereas great frauds and deceits are too often 
 " pra£tiied by necefiitous and evil-difpofed perfons, 
 " in borrowing of money, and giving judgments, 
 " ftatutes, and recognizances privately, for fecur- 
 *^ ing the repayment of the faid money ; and the 
 " fame perfons do afterwards borrow money upon 
 "^ fecurity of their lands of other perfons, and do 
 " not acquaint the latter lender thereof with the 
 '' fame, whereby fuch late lender is very often in 
 '* danger to lofe his whole money, or forced to pay 
 " off the debts fecured by the faid jqdgments, 
 '* ftatutes, and recognizances, before they can 
 ** have any benefit of the faid mortgages : And 
 " whereas divers perfons do many times mort- 
 *^ gage their lands more than once, without giving 
 " notice of their firfh m.ortgage, whereby lenders 
 " of money upon fecond or after-mortgages do 
 " often lofe their money, and are put to great 
 " charges in fuits and otherwifc," &c. 
 
 The firft queftion I afk upon this, is, "What is 
 meant by giving judgments j Jlatuies^ and recogni- 
 zances privately '^ No judgment acknowledged for 
 debt hath effect, or is in fli^ a judgment, till en- 
 tered up in public court, and thereby iiiade public 
 and notorious to all mankind. Statutes are either 
 merchant or of the Jiaple (a) : :i Jlatute merchant is 
 a bond o( record, acknowledged before the clerk of 
 the ftatutes merchant and the lord-mayor of the 
 
 (ii) Terms dc Ley 548. 
 
 city
 
 [ ^9 ] 
 
 city of London, or two merchants afTigned for that 
 piirpofe, and before the mayors of other cities 
 and towns, or the bailiffs of any boroughs, and 
 fealed with the feal of the debtor and the kino^. 
 upon condition, that if the obligor pays not the 
 debt at the day, execution may be awarded againfl 
 his body, lands, and goods, and the obligee fiiall 
 hold the lands to him and his heirs till the debt be 
 levied. (a) Statutes Jlaple are concerning mer- 
 chants and merchandizes of the ftaple, and of the 
 fame nature with jlatutes merchant : they are for 
 debt acknowledged before the mayor of the ftaple, 
 at our chief cities, &c. in the prefence of one or 
 more of the conftables of the ftaple, by virtue of 
 which, the creditor may forthwith have execution 
 of the body, lands, and goods of the debtor on 
 nonpayment. A recognizance is alfo a bond or 
 obligation of record acknowledged to the king ; 
 and when for debt, is ufually taken and acknow- 
 ledged before a judge or a magiftrate. Every one 
 of thefe fecurities for money is eflcnrially of public 
 notoriety, and therefore cannot by pofTibility be 
 given privately. 
 
 It certainly muft appear ftrange, that there 
 fliould exift a necelTity of difclofing to a lender of 
 money, what is a record of the court, and is open 
 to the infpedlion and knowledge of all the world. 
 For what ether reafon can ftatutes or judgments be 
 entered of record in the court, unlefs for the pre- 
 vention of fecrecy and privacy ? It is alfo fingular, 
 that when this preamble mentions prior mortgages 
 and other incumbrancesy which may well exifl: with- 
 out the knowledge of any man, and remain for 
 any length of time concealed and fupprefTed in im- 
 pregnable fecrecy, it feems to have loft fight of 
 the very poflibility of their being kept fecret or 
 private. 
 
 («) 4 Inftlt. 238. 
 
 Upon
 
 t 30 ] 
 
 Upon confidering attentively the purport and 
 tendency of this preamble, will not every man 
 conclude, that the aft will enfure fome preven- 
 tive againft the fraud, by rendering the privacy and 
 fecrecy of fuch clandeftine tranfaflions impofTible, 
 or provide fome efFeftual remedy to the lender, in 
 cafe his fecurity be rendered null and void or in- 
 efFeflual by fome fuch prior incumbrance ? I do 
 not find, in the Journals, upon whofe motion the 
 bill was bi ought in : I fee, iiowever, that Mr. Ser- 
 jeant Trenchard was one of the committee, to 
 'whom it was referred, and that Mr. Waller re- 
 ported feveral amendments made in the bill by the 
 committee : however, fuch as it then palled, fuch 
 is the a6t at prcfent, of which we are now to judge. 
 It enads, that any debtor upon judgment, fta- 
 tute or recognizance, taking up money upon 
 mortgage, without having given notice of this 
 debt upon the judgment, ftatute or recognizance 
 to the mortgagee, ihall lofe his equity of redemp- 
 tion, and the mortgagee may from the execution 
 of his mortgage deed (where no notice of tliis 
 public debt upon record hath been given in 
 vmting), hold and enjoy the mortgaged lands 
 for the eftate and term granted by the mortgage 
 deed againll the mortgagor, and all claiming 
 under him, as fully to all intents and purpofes 
 whatfoevcr, as if the fame had been purchafed 
 abfolutely, and without any power or liberty of 
 redemption. And any perfon mortgaging the 
 fame land mere than once, without giving notice 
 of the firft or prior mortgage, is in like man- 
 ner deprived of all relief or equity of redemp- 
 tion againft the fecond or other mortgagee; and 
 fuch fecond or after mortgagee fhall hold in 
 •like manner againll the mortgagor, and all claim- 
 ing under him. 
 
 It is alfo cnaded, that " if it lb happen that 
 
 '' there 
 
 I
 
 [ 31 ] 
 
 there be more than one mortgage at the fame 
 time made by any perfon or perfons to any per- 
 fon or perfons of the fame lands and tenements, 
 the feveral late or under mortgagees, his, her or 
 their heirs, executors, adminiftr..itors or afiigns, 
 fhall have powtr to redeem any former mortgage 
 or mortgages, upon payment of the principal 
 debt, int.reil, and cofts of fuit to the prior 
 mortgagee or mortgagees, his, her or their 
 heirs, executors, adminiftrators or afTigns, any 
 thing herein contained to the contrary in anywife 
 notwithftanding." 
 As it is with a view to procure the repeal of this 
 aft, that I take it under my prcfent confideration, 
 the freedom with which I muft neceflarily argue 
 upon it, will not, I truft, difpleafe nor offend. The 
 remedy provided by this adt for the evils fet forth 
 in the recital, is either frivolous and ineffedual, or 
 it is unreafonable and unjuft ; for either the prior 
 incumbrance or debt, whether it be of record or by 
 mortgage, is fo large, as if paid off will leave lit- 
 tle or no refidue to the fecondary mortgagee; or fo 
 fmall, as if difcharged the fecondary mortgagee 
 will retain a full and ample fecurity for the money 
 he has advanced. In the firft cafe, to what end 
 fliall a mortgao-or be hindered from redeeming- 
 lands which, if fold, would not pay half the mo- 
 ney advanced upon them ? For redemption in this 
 cafe would be purchafing lands at double price, 
 and a folly, of which a man fo diilrcfred or iniqui- 
 tous, as to borrow money upon an infufncient fe- 
 curity, would never be fufpefted j and then the re- 
 medy is frivolous and ineffedual. In the other 
 cafe, I fuppofe a man having confeffed and entered 
 up a judgment for ;^. looo, afterwards mortgages 
 his lands (which are worth twenty times the fum 
 borrowed) for ;^. 2000: I will attribute the omifTion 
 to give the mortgagee notice of the judgment to 
 his own ignorance, oblivion, inattention, or total 
 6 reliance
 
 [ 3^ ] 
 
 reliance upon his law agent ; or to the inexperience, 
 inadvertency, or omifTion of his law agent. There 
 could be no intention of defrauding in the mort- 
 gagor j nor is there a poflibility of the lender's 
 lofing his money. And will any man find it rea- 
 fonable or equitable, that fuch a mortgagor fliould, 
 in any pofllble cafe, be bound to pay more than 
 the principal and intercft of the money borrowed ? 
 "Whereas by this aft he would be not only compelled 
 to pay the principal and intereit, which he had bor- 
 rowed, but alfo lofe the fee-fimple of his eftate 
 worth twenty times the fum borrowed, which in 
 fa6l he had only pledged as a fecurity for the re- 
 payment of the loan. 
 
 Let a perfon fo liable to this ftatute apply for re- 
 lief, and who will not fay that it would be unjufl 
 to refufe it to him ? If the execution of a law be 
 unreafonable and unjuft, what obligation is there 
 not upon the legidature to repeal it ? 
 
 The aft was undoubtedly meant to prevent 
 fraud ; v/hereas it is fcarcely poffible to open a door, 
 through which more fraudulent impofition and re- 
 medilefs iniquity can be let in, under the fanftion of 
 parliamentary authority. I will not ftate hypothe- 
 tical poffibilities, but real fafts, which have re- 
 peatedly come within my own knowledge j and 
 from them will I argue. 
 
 A gentleman of fortune, from play or other fol- 
 ly, wants a temporary fum of money ; he applies 
 to one of that humane accommodating fociety, 
 who are ever fanguine to relieve the diftrefles of 
 inconfiderate youth. He grants an annuity, upon 
 his own life, for fix years purchafe, and executes a 
 bond and warrant of attorney, to confefs a judg- 
 ment upon the debt ; and according to the terms 
 of the advertifement, wliich brought him hither, in 
 the fpace of an hour he iS accommodated with the 
 money. He pays, departs ; and from fliame or 
 vexation, complies ttri6tly with another part of the 
 I advertifement.
 
 [ 33 ] 
 
 advertlfement, which promifes the mofl: inviolable 
 fecrecy. The year comes roLind, and he finds die 
 fecond half yearly payment (for the firft had been 
 retained in advance) widely dilproportionate* from 
 the ufual rate of intereftj and he accordingly ap- 
 plies to his regular law agent, to raife for him by 
 itiortgage as much money, as he wants to pay off 
 this, and perhaps fome other private debts. It 
 rarely happens, that mioney advanced by advertife- 
 ment in this m.anner is claimed by the real owner. 
 The link of advertif^rs, runners and lenders, is fel- 
 dom known. It (o happens, that the lender of the 
 fecond fum upon mortgage, is not ignorant of the 
 annuity and judgment, though his knowledge of 
 it cannot be legally proved againft him; and he cer- 
 tainly vv'ill not fjarch the regifter to find out an in- 
 cumbrance, the legal io;norance of v/hich, he has 
 in contemplation to turn fo much to his own ad- 
 vantage. The borrower intends immediately to 
 redeem his annuity at any price ; and, aihamed of 
 the tranfaftion, continues to fupprefs the know- 
 ledge of it from his regular law agent. He exe- 
 cutes the mortgage-deed, receives the money, and 
 on the next day undertakes the application of it 
 himfelf. The agent of the mortgagor, relying ei- 
 ther upon the general condudi: and management, or 
 the fpecial affurance of his client, that no judgment 
 had been entered up by him, never thinks of ad- 
 vifing him to give notice, of what he prcfumes 
 does not exift. In fact, the greater part of the 
 profeffion think it the bufinefs of the lender's 
 agent, and not of the borrower's, to k arch the re- 
 giiler for judgments. The annuity is redeemed, 
 but no fatisfadion is entered upon the judgment ; 
 the mortgagor, fome time afterwards, rcfolves up- 
 on matrimony, and means to clear his eftate before 
 he fettles it ; he accordingly gives notice to his 
 mortgagee to receive his money. How furprifing, 
 
 D but
 
 [ 54 1 
 
 but at the fame time how remedikfs is the t^e- 
 mand of the mortgagee to hold the eftate, which 
 is of confiderable value, as abfolutely, as if he had 
 piirchafed it ; and why ? Becaufe no notice had been 
 given in writing of the judgment, that had been 
 entered up for the firft private debt, and which, alas ! 
 furvived the mortgage only by one day. It is, I 
 believe, a true fai5t, that at this hour there are 
 mortgages in this nation to the amount of fome 
 millions of money, in which above one half of the 
 mortgagors may, under this Itatute, be debarred 
 from redemption j and if it were enforced, I know 
 no remedy to fuch crying -injuftice againft the ex* 
 prefs letter of a ftatute in force. The ignorance of 
 the unfair, and the integrity of the honeft lenders of 
 money, have hitherto prevented frauds and iniqui- 
 ties from being pradifed under this ftatute without 
 end, as they would be without remedy. 
 
 When the aft gives power to a fecondary mort- 
 gagee to redeem any form*er miOrtgage, upon paying 
 principal, intereft and cofts, the fame difficulty 
 arifes upon the amplitude of the fecurity, which I 
 mentioned before. And if the prior mortgage be 
 really clandeftine and unknown, there can be no re- 
 demption of it by a fecondary mortgagee, as is evi- 
 , dent. And it is, as the law is now fettled, in the 
 power of an iniquitous mortgagor to defeat all 
 mefne incumbrances, by creating an ulterior charge, 
 and pemiitting fuch lad mortgagee to buy in the 
 firft incumbrance, (which hitherto we fuppofe him 
 to have kept fecret) and by thofe means to acquire 
 a priority for any fum of money over thofe fecon- 
 dary mortgagees, to whom the ad gave a right to 
 redeem the firft mortgage. Is not this evidendy 
 tojcave the juggle and power of defrauding in the 
 hands of the mortgagor ? For if there be feveral 
 mortgagees, the laft niortgagee having lent his mo- 
 ney upon a valuable confideration, and without no- 
 tice.
 
 [ 35 ] 
 
 tice, may by purGhafing in the firfl: incumbrance; 
 M/hich carries with it the legal eftate, protect him- 
 felf againft any mortgagee fubfequent to the firfl 
 and prior to the laft (a) : and it hath been holden, 
 that a perfon is not bound to take notice of an in- 
 cumbrance, becaufe it is of record (Z-). It is felf- 
 evident, that the only efFeftual method of prevent- 
 ing fraud by clandeftine mortgages, incumbrances, 
 &c. is to take away the poffible exiftence of any 
 clandeftine mortgage or incumbrance. And llirely 
 it can be no hardOiip, if a purchafer or mortgagee 
 be bound to look to his own fecurity, if nothing, 
 which is not obviouQy open to infpeftion, can af~ 
 fe6t his purchafe or mortgage : nor can there be 
 any difficulty in fuch requifiiion, fince in the plan 
 propofed, no land in any county will by poffibi- 
 lity, be liable to any charge or incumbrance, which 
 may not be feen in the books regularly kept in each 
 county, for a very trivial fee ; and of which a fliort 
 entry may not be alfo feen in the metropolis, as tha 
 grand mart of money negociations of every fpecies. 
 
 Of Nolice^ 
 
 In confequence of many fjits inftituted by pur- 
 chafers and mortgagees, who after they had laid 
 out their money, v/ere difturbed in their pofienions, 
 or had their titles litigated on account of fome; 
 prior claimSi many decifions have been made, which 
 have eftablilhed a very nice and curious doftrine 
 concerning notice, vi/hich may be either exprefs and 
 cMuaU or implied and prefumptiv^. And thefe de- 
 cifions bear very hard, in fome cafes, upon incum- 
 brancers, whofe primary objecl fhould ever be fim- 
 
 (a) Chan. Ca. 2i. Boovey and Shipvvick ; Churchill and 
 Grove, Ch. Ca. i^. i Vern. 187, i88. zVez. 573. Strange 
 240. .•■" 
 
 i^h) Grcfwold^nd Marfham, 2.Ghan. Ca. 170. 
 
 : D ■:. ' plicity
 
 [ 3^ ] 
 
 pVicity In their title, and facility in maintaining it. 
 Now all this doftrine will be wholly ufelefs, if every 
 deed and will affeding the land of a vendor or 
 mortgagor, (hall appear upon the face of the in- 
 rolment, to which the purchafer and mortgagee 
 may have accefs : it will be then impofiible, that 
 there fhould be any occadon for notice ; for every 
 one will be prefumed cognizant of whatever can 
 by poffibility affeft his purchafe or fecurity, pro- 
 vided it be within the reach of his own knowledge. 
 But as the law is now fiippofed to be, and is laid 
 down as fettled by the modern writers, an incum- 
 brance being of record, a purchafer is nof bound 
 to take notice of it, at his peril : it muft be proved 
 that he had ex-prejs notice^ m order for him to ob- 
 tain relief, which the record is not [a). 
 
 Whatever may be the law at prefent of a re- 
 cord's not being fufficient notice of itfelf, it is no 
 new nor imreafonable idea, that the inrolment of 
 a deed Ihould of itfelf be full and exprefs notice 
 to all thofe, whom the effeft of the deed may con- 
 cern. Thus by an aft, which [F) was paffcd for 
 regulating proceedings in the court of King's Bench 
 at Weftminiler, it was enaded, " That no corpo- 
 " ration, lord or lords of manors, or other perfon 
 " or perfons having grants by charter or other 
 *^' good conveyances, who have inrolled, and have 
 " had the fame allowed in and by the faid court, 
 " fiiall hereafter be compelled to plead the fame 
 " to any inquifiticn returned by any coroner:" 
 And why? Becaiife the notoriety of inrolment 
 may be known to all, and ought to be noticed by 
 thofe,. whom it concerns. The a6t impofes a pe- 
 nalty of 5/. upon any clerk of the crovv'n, who 
 fhiill iffuc any procefs againil a party, who has in- 
 
 («) Grefvvold and Ms.rfham, z Chancery Cafes, 170. 
 {b) 4. (S; 5 Will, and Mary, c. 22, 
 
 rolled
 
 [ 37 ] 
 
 rolled his title, and exempts him from it if it be 
 not inrolled, for the reafon given in the aft, as fol- 
 lows : " And whereas divers perfons having grants 
 " of felons goods and dcodands, and inrolled and 
 " pleaded as aforefaid, do many times alien and 
 " convey their intereft therein to other perfon or 
 " perfons, or by their lafb wills do devife the fame, 
 " or by their deaths, fuch eftates do defcend to 
 " their heirs, whereby the clerk of the crov/n of 
 " the faid court is rendered incapable to difcern 
 " where fuch intereft lies, until the perfon or per- 
 *' fons, to whom fuch eftates are conveyed, devifed 
 " or defcended, fliall come into the faid court, 
 " and make entry of fuch their claim as afore- 
 '' faid." The entry of which claim is rightly 
 looked upon as complete notice to thofe, whom it 
 concerns. 
 
 In further fupport of my opinion, that the en- 
 tering up or recording incumbranc€s, (fuch as 
 judgments for inftance) ought to be looked upon 
 as opening a repofitory of intelligence, to which 
 every perfon concerned might, and therefore ought, 
 at his own peril to refort, we muft refleft, that 
 parliament palTed an act (a) for ibe better difcovery 
 of judgments^ &:c. in the different courts of record, 
 twice from year to year by way of experiment, 
 v/hich they afterwards {F) made perpetual. Now 
 if a purchafer, to be affefted by a judgment, mufl 
 have exprefs notice of it, and the record be not 
 fuch exprefs notice, what fenfe or meaning can be 
 given to the preamble of this a6t \ " Whereas 
 *' great mifchiefs and damages happen and come, 
 ** as well to perfons in their lifetim.es, but more 
 ** often to their heirs, executors and adminiftra- 
 
 {a) 4 & 5 Will, and Mary, c. 20 ; and 6^-7 Will, and 
 Mary, c. 14. 
 
 {b) 7 & 8 WiU. 3. c. 36. 
 
 D J "' tors;i
 
 [ -33 ] 
 
 f^ tors, and alfo to pui chafers and mortgagees, by 
 ^' judgnnents entered upon record in their Maje- 
 ** flies courts at Weftminfter, againft the perfons 
 " defendants, by reafon of the difficulty there is in 
 " finding out fuch iud^ments." Now there can 
 be no difficulty in finding out that, of which you 
 have exprefs notice ; for giving r^ctice is nothing 
 more nor lefs, than informing a perfon, in what 
 court, at what time, for what fum, and in whofe 
 pame the judgment is entered up. And therefore 
 becaufe parliament judged very obvioufly and 
 wifely, that if the entries were regularly and openly 
 kept of thefe incumbrances, it would be (as it 
 ought to be) the fault of a purchafer, if he did not 
 look into the dogget himfelf : and therefore I con- 
 peive, notwithftanding any determination before or 
 fince this aft, that a purchafer is not affedled by a 
 judgment recorded, without exprefs notice thereof j 
 yet that by this aft, the doggeting of the judgment 
 is fufficient notice thereof to a purchafer. At leaft 
 I cannot otherwife underftand the following claufe : 
 ?^ And be it further enafted, by the authority afore- 
 " faid, that no judgment not doggeted and en- 
 *^ tered in the books as aforefaid, Ibail afFeft any 
 ** lands or tenements as to purchafers or mortga- 
 " gees, or have any preference againfl heirs, exe- 
 " cutors or adminifbrators, in their adminiflration 
 " of their ancedors, teftators or inteflatcs eflates." 
 Does not the regular doggeting of judgments 
 (the want of which renders them inefFeftual againft 
 purchafers and mortgagees) fuppofe that they aj e 
 to be fearched for; and if they are not (when 
 regularly doggeted) notice to purchafers and 
 inortgagees, why are they to be fearched for, and 
 how can they alieft them ? 
 
 According to the fenfe and fpirit, in which I 
 underftand both the language of thefe ftatutcs and 
 of our books, it is no fmail fatisfaftion to find my 
 
 opinion
 
 [ 39 ] 
 
 opinion cxprefsly warranted by the authority of 
 Lord Hardwickc, in the cafe of Mine and Dodd, 
 which was determined on the 13th March 1741 (^), 
 in which a judgment creditor, whofe judgment was 
 regiftered in Middlefex on 12th June 1735, brought 
 a bill to be let in upon an eftate preferably to a 
 mortgagee, whofe mortgage had been regiftered 
 on the lecond of the faid month of June, upon a 
 fuggeftion, that the mortgagee had notice of the 
 judgment, before the n^ongage was executed, al- 
 though it was regiftered ten days before the regi- 
 ftry of the judgment. Much of this cafe turned 
 upon the nature of the notice given to the mort- 
 gagee of the prior judgment, v/hich is irrelevant to 
 the fubjeft under our prefent eoniideration j but 
 as to what immediately relates to it, nothing in 
 my opinion can be more peremptorily decifive,' 
 than the words of Lord Hardwieke, viz. ^^ The 
 " regifter aft, the 7th of Ann. c. zo. is notice to the 
 " parties J and a notice 'to every body : and the rea- 
 *^ fon of this ftatute was to prevent parole proofs 
 ** of notice, or not notice." And he is further re- 
 ported to have faid in this caufe, that if it were not 
 fo, this ftatute would be mere wafte paper. This 
 very clear and confiftent doctrine of Lord Hard- 
 wieke feems not to have been attended to by any 
 modern writer upon this fubjetl ; for they all un- 
 exceptionably take up the doftrine delivered fome 
 years before that time by Sir Jofeph Jekyl, at the 
 Rolls, on the i6th of February 1737, in the cafe 
 of JVrightJon and al. v. Htidfon and al. {b) -, in 
 which " it was refolved, that thefe ftatutes avoid 
 *' only prior charges not regiftered, but did not 
 ^* give lubfequent conveyances any further force 
 ^^ againft prior ones regiftered, than they had be-^ 
 
 {a) z Atk. 275, 
 
 {h) 2 Eq. Ca. Abr. 609, 
 
 - P 4 " fore :
 
 [ 40 ] 
 
 " fore : that to have affefted Mr. Wrightfon, Hud- 
 " fon ought to have given him notice, when he 
 " advanced his money ; and though Wrightfon 
 " might have fearched the regifter, yet he was not 
 " bound to do it." I need make no co.nment 
 upon thefe two decifions : I v;ill only repeat, that 
 in the year 1737, Sir Jofeph Jekyl faid, that a man 
 was not bound to fearch the regifter ; and that Lord 
 Hardwicke faid, in 1741, that the regifier was a 
 notice to the parties ^ and a notice to every hod^. 
 What more contradiftory than thefe two pofitions ? 
 For that which a m^an is not bound to look to, 
 cannot be notice; and that which is notice, a man 
 is bound to look to, as is felf-evident. 
 
 In this, as in fome other infcances, where I have 
 taken the liberty to exprefs my own perfonal opi- 
 nion upon points of lav/ and equity, I have done 
 it with a view, that the legiOature may be induced 
 by one efxicient atb to reduce the ftatutes, which 
 relate co the fame fubjeft, to confiftency both of 
 fpirit and letter, and the future decifions of the 
 courts of law and equity to plain rules and fixed 
 principles. 
 
 I do not unexceptionally accede to the old ob- 
 fervation, that Englilhmen fc-ldom make any good 
 laws, till fome common calamity caufes them : but 
 I flatter myfelf, that in this inftance they will be 
 fenfible of the prefent inconveniences; and, fore- 
 feeing much future good, will anticipate the re- 
 medy to the further evirconfequcnces of the dif- 
 eafe, and thus contradi<5l, what Dr. Swift obfcrved, 
 that Englijhjnen can feel but not fee. And I think 
 it no impertinent queftion to propofe; Who does not 
 fee, that the obvious purpofe of recording a deed 
 is, that thofe, whom it concerns may take notice 
 of it ? 
 
 But it mufl be remembered, that the regiftering 
 of a deed is not recording it, as the inrclment of 
 
 a deed
 
 [ 41 3 
 
 a deed is ; nor is a deed abfolutely null for want 
 of being regifbcred : whereas, accord ing to the 
 fyft'^m, which I have undertaken to fuggeft and re- 
 commend, no dc^d nor will afTefting land will be 
 valid, unltfs it fliall be inroUed within a limited 
 time ; and upon this ground, the argument for a 
 deed inrolled being notice to all mankind, will ac- 
 quire infinicv^ly more ftrength, and will fall di- 
 re.ftly un.ler the reafon and do6lrine of Lord 
 Hardvvicice, in Hine and Dcdd. The principle 
 of this do6lrine appears clearly to be, that the re- 
 giftering afls are meant to opi-rate upon all fub- 
 fequent incumbrancers, who iliall not have received 
 actual notice of a prior incumbrance, by affording 
 them the means of acquiring that knowledge, 
 which will be equivalent to a6lual notice. So 
 Lord Hardwicke {a) decreed, that " if a deed 
 *' refpefting lands in any of the regiftering coun- 
 *' tics be not regiftered, and afterwards the fame 
 *^ lands are fold or mortgaged by a deed properlv 
 " regiftercd, if the perfon claiming under the fe- 
 " cond deed has notice of the firfb deed, the perlbn 
 *^ claiming under the firft deed, though it be noc 
 " regiftercd, (hall be preferred to him." Such a 
 decifion could not Lave been made, if the re- 
 giftery were neceffary to the validity of the deed, 
 as is felf evident {b)." And a fubfequent mort- 
 gagee having notice of a prior mortgage not re- 
 giftered, will not gain a priority by regiftering, 
 " becaufe fuch conduit is confidered in equity as 
 *' fraudulent, and the party hath that notice, which 
 *' the act of parliament intended he fhould have." 
 What more clear, than that the aft intended that 
 the regiftering of a deed fliould operate as notice, 
 
 {h) Le Neve v. Le Neve, i Vez. 64. 
 {[>) Cowper's Rep. 712 and PovveJi upon the Law of Mort- 
 gage , 287. 
 
 which
 
 [ 42 ] 
 
 v/nich would be abfurd in the extreme, if a man 
 fearched the regiP.cry at his own peril : for it is evi- 
 dently more advantageous to a purchafer or mort- 
 gagee to complete his purchafe or mortgage ixjith- 
 mt notice, than ivith notice of a prior incum- 
 brance. 
 
 In my prefent purfuitj it is not only my duty ta 
 ftate, what the law of riotice now is, but more efpe- 
 cially what under the propofed aft of parliament 
 it ought to be. And I am happy in being able 
 to confirm the doflrine of Lord Hardwicke, in 
 Hine and Dodd^ by the more minute and exprefs 
 opinion of the famed D'Agueffeau, chancellor of 
 France. (^) By laws of that kingdom, as ancient 
 as the fixteenth century, particularly an ordonnance 
 of Henry the Second, of the year 1553, it was or- 
 dered that all wills and deeds, containing fubfli- 
 tiitions of ellates, fhould be regiftered within a 
 particular period of time. If they were not re- 
 giftered v.'ithin that time, the courts feem to have 
 doubted whether they were binding even on the 
 parties, in whofe favour the fubftitutions were 
 made; but it was ahvays fettled, that the fubftitu- 
 tions were of no force againft creditors or purcha- 
 fers. Several points of the laws refpefting fubfti- 
 tutions being unfettled, and the laws refpecting 
 them being different in different parts of the king- 
 dom, they were all reduced into one law by the ce- 
 lebrated ordonnance of Auguft 1747. That or- 
 «lonnance was framed by the chancellor D'Aguef- 
 feau, after taking the fentiments of every parlia- 
 ment in the kingdom upon forty-five different 
 queftions propofed to them upon the fubject. The 
 thirty-ninth queftion is, " Whether a creditor or 
 *' purchafer, having notice of the fubftitution be- 
 " fore his contrail or purchafe, is to be admitted 
 
 (g) Harg. and Butler's Co. Lit. 291. 
 
 «tQ
 
 \ 
 
 I 43 ] 
 
 ^f to plead the want of regiilration ?" All the par- 
 liaments, except the parliament of Flanders, agreed 
 that he was; that to admit the contrary dod:rinc 
 would make it always open to argument, whether 
 he had or had not notice of the fubftitution ; and 
 this would lead to endlefs ui^certainiy, confufion, 
 and perjury ; and that it was much better, that the 
 right of the fubjefl fhould depend upon certain 
 and fixed principles of law, than upon rules and 
 conllruclions of equity, which muft be arbitrary, 
 and confequendy uncertain. The ordonnance of 
 Augull 17.^7 was framed accordingly. Thofe, 
 who have commented, upon that ordonnance, lay 
 It down as a fixed and undeniable principle, that 
 nothing, not even the moft aftual and direft no- 
 tice, countervails the want of regiftration ; fo that 
 if a perfon is a witnefs, or even a party to the 
 deed of fubftitution, ftill if it is not regiftered he 
 may fafely purchafe the property fubftituted, or 
 lend money upon a mortgage of it. See queflions 
 concernant les Subflitutions, Thouloufe 1770, and 
 Commentaire de I'Ordonnance de L-ouis XV. Sur 
 Jes Subftitutions, par Mr. Furgole, a Paris, 1767., 
 
 FroMical Applications. 
 
 Let us now, abftraftedly from any prejudice of 
 education, habit or profeflion, argue upon this 
 matter in the di6lates of plain common fenfe. A 
 man wifhes to purchafe or place out a fum of 
 money upon mortgage, or to buy a rent-charge 
 or annuity, iffuing out of land. A title is pro- 
 pofed to him ; he kibmits it to his law agent, who 
 probably carries it to a conveyancing council ; he 
 perufes and approves of the title, as fubmitted to 
 him in the abftraft ; but directs the follicitor, who 
 brought him the abftrad, to examine if the grant 
 ^x fine or recovery^ or ail of ■parliament^ upon which 
 
 the
 
 [ 44 ] 
 
 the title may hingC;, be faithfully abilrafted from 
 the record. This is the duty of a conveyancer ; 
 for he ran only judge of v/hat he fees, and diredt 
 what may be effected. Tjbe client with the appro- 
 bation of council confides in the fecurity, and pre- 
 fumes himfelf out of the reach of any impofition 
 in the tranfa£lion, and will naturally conclude;, not 
 only, that every fbep has been taken^ that can fe- 
 cure the title, but that no means nor power are 
 left with the vendor or mortgagor or grantor of the 
 annuity or rent-charge of overreaching or de- 
 ceivins: him in the title. And will he not more- 
 over naturally conclude, if there be any repofitory 
 of information to rcfort to concerning a man's 
 title to land, that if it be not a fource of fatisfadlory 
 and conclufive intelligence, it muft lead to deceit 
 and ei-ror, by infuring doubt and uncertainty ? 
 
 What then is the fafl ? A vendor or mortgagor 
 may notwithftanding all, that has appeared to coun- 
 fel upon the face of the abilraft, and all the in- 
 tellio-ence and information, which the moft dili- 
 gent and attentive follicitor can by poffibility ac- 
 quire, have previouHy fold, mortgaged, charged,, 
 or fettled the whole or any parts of the land iri 
 queftion, without an obligation of rendering no- 
 torious any one aft, by which he may have made 
 fuch fale, mortgage, charge or fettlement. Whence 
 then arifes ^\^ necelTity, or even expediency, of 
 making public and notorious fome aftsj v*^hich 
 affect the title of lands, whilft the owner is em- 
 powered to fupprefs many others, by which he caii 
 equally afFeft them? He cannot cut off the ex- 
 pedlant rights of a chiki or a remainder- man in 
 an entailed cftate, but by matter of notoriety and 
 record : and is there not as much or more reafon, 
 ■why that a6l fliould be public and notorious, by 
 which a tenant in fee-fimple counterads and de- 
 feats tlic known, fettled and certain coui-fe of thQ
 
 [ 45 1 
 
 law, Vv'hich would have caft the inheritance upon 
 the lieir at law, if he had not counteracled and de- 
 
 h 
 
 the 
 
 ^eated its effects ; and this he has it in his power 
 to do by a private deed in his lifetime, or by will 
 after his deceafe; neither of which needs to be ren- 
 dered public or notorious. He may by a private 
 deed charge all his lands with a debt j but by con- 
 feffing a judgment, which equally charges them, it 
 muft be by matter of record and notoriety. 
 
 I may be blamed and cenfured by fome, for 
 divulging the arcana of the profeflion, and uttering 
 truths, which may be thought to difturb the peace 
 and quiet of many, whofe money is now placed 
 out upon landed fecurities ; but I can neither in- 
 vent nor conceive a ftronger reafon, why the law 
 fhould be altered, than becaufe the knowledge of 
 it difturbs the peace and endangers the fecurity of 
 individuals, it is then a truth no lefs certain than 
 extraordinary, that in palling many titles of land, 
 it is abfoluteiy ncceffary, that very great reliance 
 and elTential confidence fhould be placed in the 
 perfonai honour and integrity of individuals, againft 
 whofe deceit, fraud and impofidon, fhould they 
 not be honeft and honourable, there are abfoluteiy 
 no means of providing. To prove this, I will 
 ftate a cafe that has very lately happened, v/hicli 
 as to many points applies ftriftly to my argument. 
 I have met with feveral other cafes within my own 
 knowledge, which turn upon the fam.e point. But 
 fliould even the cafe I put, be merely fuppofitious, 
 from the probability of its frequently happening, 
 it woujd equally enforce my arguments. 
 
 The
 
 t 46 i 
 
 ^he Cafes of Rkkman againft Morgan [a)^ tind 
 Pear/on againfi Morgan {h). 
 
 Mr. James Butler of Suffex was entitled, un- 
 der his father's marriage-fettlement, to an cftate 
 charged with f. 8000 for one younger child 
 of the marriage; which fettlement contained a 
 provifo, that if the fadier fhould give to any of 
 his daughters or younp.r fons any money or lands, 
 for or in advanceme'iC u) marriage, or otherwife, 
 the value thereof fnouk! be dedutled from thd 
 portion, unlefs he fliould by writing declare to the 
 contrary. The father gave the refidue of his 
 perfonal eftate to his only younger child Mr. John 
 Butler, and made other advancements to him dur- 
 ing his life. The father being dead, Mr. James 
 Butler fuffered a common recovery, by which he 
 obtained a fee-fimple in the lands. In iJJSi 
 Mr. John Butler applied to Mr. Pearfon to lend 
 him /[. 3C00 on the fecurity of the £. 8000 
 portion, for which he affigned £. 5000, part 
 of the faid £. 8oco, as a fecuri:y. Mr. James 
 Butler, who from the time of his fuffering the 
 common recovery, held the fee-fimple of the eftate 
 to his death, paid the intereft of the £. 8000, 
 Mr. Pearfon, before he lent the money, applied 
 by his follicitor, Mr. Hull, to Mr. James Butler^, 
 and deftred to be informed by him, whedier the 
 £. 8goo was a fubfifting charge on the eftate ; 
 when Mr. James Butler declared that it was, and 
 that he might fafely advance his money on the 
 fecurity. Mr. James Butler had polTeflion of the 
 fettlcment, and knew of the advancemicnts of the 
 father to his brother ; but not fuppofing the por- 
 
 (a) Brown's Rinorts, \'ol. I, p. 63. 
 
 (^) D" Cafes ai^^ucJ and dcierniiiicd in 28th of his prcfcnt 
 MajelH', p. i^. 
 
 tloii
 
 [ 47 1 
 
 tion afFefted by them nor by the gift of the refiduCj 
 did not reveal the fame to Mr. Pearfon's folli- 
 citor. Upon the death of Mr. James Butler fome 
 time after, his eftates defcended upon his two 
 daughters. The hufband of one of them (Mr. 
 Bennet) in 1774 had alfo advanced £. 2978 
 to Mr. John Butler, upon the fecurity of the 
 £. 8000 portion^, (fubjciSl: to the firft £. 3000 
 advanced by Mr. Pearfon). Upon the 24th of 
 laft June, Mr. Juftice Buller, fitting for Lord 
 Chancellor, faid, " he ftrongly inclined to think 
 ^^ it a fatisfaclionj" and the Lord Chancellor him- 
 felf, on the 27 th of laft November, decreed the 
 gift of the refidue to be a fatisfadion for the por- 
 tion fecured by the marriage-fettlemcnt. But as 
 to the £. 3000 lent by Mr. Pearfon, the Court 
 held, that Mr. James Butler's declaration to the 
 lender's follicitor bound both him and his lands ; 
 ^and that fum was therefore dire6le*d to be raifed 
 and paid to Mr. Pearfon. But no relief hath been 
 given to Mr. Bennet for the money he advanced-. 
 
 If Mr. James Butler had remained tenant in 
 tail of the eilates charged with £. 8000, and 
 he had died infolvent as to his perfonality, I know 
 not what redrefs Mi*. Pearfon would have had ; but 
 he had acquired the fee fimple, and it was bound 
 in equity by his verbal undertaking. It is not 
 pofiible to adduce a ftronger inftance than this 
 cafe, to prove the truth of what I have advanced 
 concerning the neceffity there often is of making 
 perfonal confidence the ground of opinion in the 
 approbation of a landed fecurity for m.oney. The 
 words of the Court, in delivering the decree in this 
 caufe, are : '^ The enquiry was a very proper one 
 " on the part of the plaintiff (viz. Pearfon) and 
 " completely repels the imputation of neglio-ence 
 " in his agent ; and the enquiry was properly m.ade 
 " of the party immediately interelled. James at 
 
 " the
 
 [ 4S ] 
 
 " the time of the enquiry, had the equitable inte- 
 *' reft in the eftate,, and upon the applicaf.ion, af- 
 *' fured the plaintiff, that he might fafely lend his 
 " money : the enquiry was d:e moft rnatc-riai the 
 "^ plaintiff could make." It appears from ':he cafe, 
 that Mr. Hull was alfo concern :^d for Mr. Ben- 
 net, and it is to be prefumed, that having done 
 (by the confcffion of the Court) vthatcvcr he couid 
 do, to acquire the knowledge and information which 
 was rrquifite for his client to know about the 
 charge and term, upon the fecurity of which Mr. 
 Pearfon lent his money, he could retain no doubt 
 about recommending it to his other client Mr. 
 Bennet, who lent £. 2978 upon the fam.e fe- 
 curity, the repayment of which has not as yet been 
 decreed. The material point of law in this cafe, 
 was the decifion, after feveral hearings, that the 
 refidue of a perfonal eftate is to be taken as a 
 fatisfaftion for a portion. As this point had not 
 before been decided, it could not be imputed to 
 the negligence nor i^^cnorance of the agent or his 
 conveyancer, (vvlio was very eminent in the pro- 
 fefTion, and is fince dead) that they did not objedt 
 againft the fecurity upon this gro;md- But as to 
 my argument, it would have been the fame, if all 
 the advancements had been made by the father in 
 his lifetime. Here was no attempt at fraud in 
 either of the MefTrs. Butkr j but in this fuppofition, 
 there were no fure means of coming at the know- 
 ledge of the prior advancements. The law re- 
 quired nc fort of notoriety to attend the fa6l : 
 both fons denied it ; the conveyancer was not to 
 fuppofe, what was not ftated to him ; the agent 
 could not acquire the information, to fubmit it to 
 tlie conveyancer : and thus, without any blame 
 imputable to the agent ; without any refleftion up- 
 on the conveyancer, Mr. Pearfon but for the 
 perfonal and accidental undertaking of Mr. James 
 o Butler,
 
 [ 49 ] 
 
 Buder, would have been) and Mr. Bennet aclually 
 is expofed to die lofs of a large fum of money un- 
 der all the fanftion, prote6tion and fecurity, which 
 the law, as it now ftands, affords him for his pro- 
 perty. I go ftill farther -, for, fuppofing a convey- 
 ancer fhould ftate the ftrongell doubts, whether the 
 whole or part of the fortune Jiad been advanced or 
 raifed, yet are there no pofTible means of acquiring 
 diis knowledge for certain, againft the determina- 
 tion of the two fons to fupprefs the fafts. 
 
 The ancient law and policy of our anceftors 
 could not, confiflently with that notoriety, which, 
 as 1 have fo often faid, they thought neceffary to 
 attend every acl of alienation or afFc6lion of land- 
 ed property, admit into conveyances of land, all 
 thofe modern rejlrahnng and enabling powers, the 
 creation, execution and effects of which, have 
 conftituted a very confiderable branch of equity. 
 But of die dodrine of powers, it is not my pur- 
 pofe to fay any m.ore, tlian that from their very 
 nature, the want of notoriety in the creation, as 
 well as execution of them, muft ever leave to pur- 
 chafers and mortgagees much perfonal confidence 
 to rely upon for the fecurity of their titles. And 
 fince a great part of family fettlements at prefent 
 turns upon thefe very powers, under which the 
 portions for the younger children of families are 
 often provided and fecured, it becomes very ef- 
 fential and important to the community, that thefe 
 titles lliould be clear and certain j for when fuch 
 portions are raifed and paid to younger children, 
 it rarely happens, that the owners of the lands, 
 which are charged with them, are capable of pay- 
 ing off the money, and it is generally done by 
 others, who advance it upon the fecurity or under 
 the deed creating the powers. And if there can 
 poffibly exift a confederacy between father and fon, 
 or the younger children themfclves and their truf- 
 
 E tees.
 
 r JO ] 
 
 fees, or even If impofition, treachery or deceit, 
 may be fuppofed to exift in any one of them j 
 by what means can the moft attentive attorney, 
 the moft cautious conveyancer, and the moft 
 wary lender, prevent, counteraft, or hinder the 
 fraud ? We have feen the cfFecls of involuntary 
 error in the judgment of MeiTrs. Butler. How 
 necelTary then it is to eftablifh an unerring 
 fource of notoriety and information, which every 
 purchafer, lender or mortgagee may refort to 
 with confidence and certainty ? For it is evident, 
 that where one part of a title muft be made public 
 and notorious, and the other parr of it requires no 
 fuch notoriety, there ever will exift more doubt 
 and uncertainty about the fupprelled part of the 
 title, than if none of it had been made public. 
 What has been faid, will I hope be conclufive, 
 that no charge nor difcharge of land ought to be 
 efteded, but by a deed or acl of public notoriety. 
 
 More ckcimjiantlal Proofs. 
 
 The more we refleft upon this fubje(51^, the more 
 circumftances ftiall we find, that render the noto- 
 riety I have been fpeaking of, more necefTary ac 
 prefent, than at any paft period of time. The firft 
 of thefe is the more general lubdivifion and equal" 
 partition of landed property: by which means,, 
 titles are multiplied and become more complex by 
 derivation, and therefore lefs certain, becaufe lefs 
 notorious, for want of title deeds j which, when 
 cftatcs are tranferred in parcels, or otherwife par- 
 tially affe6led, cannot be delivered over to each 
 purchafer or incumbrancer, as if the whole eftate, 
 to which the deeds are the muniments, had been 
 fold or affefted together. And I know no rea- 
 fon, which more emphatically proves the expe- 
 diency of my propofal^ than the doftrine and pre- 
 J f«ns
 
 [ 51 ] 
 
 fcnt law concerning the delivery, pofiefllon and 
 cuftody, of title deeds. 
 
 Of Title Deeds, 
 
 The cafes, which have been deternained, relative 
 to the delivery, pofTcfTion and ciiftody, of title 
 deeds and notice to purchafers and incumbrancers, 
 have very frequently arifen from matters in re- 
 giftering counties. But whatever relates to the 
 regiflering acts, fhail be referved for future confi- 
 deration. 
 
 1 do not find that the delivery, adual poffefljon 
 or cuftody of the title deeds, is eflfential to the 
 validity of a purchafe or mortgage ; for a man 
 feifed in fee-ftmple of ten thoufand acres of land 
 may validly mortgage or fell it out in tive hundred 
 parcels, and yet it will be impoffible to deliver title 
 deeds to each mortgagee and purchafer. And if 
 the delivery of the title deeds were effential to the 
 validity of a mortgage or purchafe, yet in many 
 cafes, it would be of no avail, efpecially fince it 
 has been the general practice to make two and 
 fometimes more original parts of one and the fame 
 deed, (and without any thing appearing upon the 
 face or back of fuch deeds, to Ihew how many 
 parts of them v/cre executed). A man having 
 collefled for fixty years back duplicates of all his 
 title deeds, might at different times make out fuch 
 a title, as would and muft, in the nature of bufi- 
 nefs, be approved of by counfel, and fell and 
 mortgage the land to A. v/hich he had previoufly 
 fold or mortgaged to B. without a poffibility of 
 "the preconveyance being difcovered by the moft 
 diligent attorney, or fcrupulous and intelligent con- 
 veyancer. 
 
 E % Jfufpcfei
 
 [ 5t ] 
 
 A Juppqfed Cafe, 
 
 I will fuppofe two common recoveries fuffered, 
 and two marriage fettlements made riicceffivelv of 
 the manor of Dale ; and thefe to run bacii into the 
 laft century. The reverfion in fee, under the fe- 
 cond fettlcment, veils in the heir at law of the fet- 
 tler. He is in poffefTion of the land, and of two 
 fets of thefe fettlements, which are the title deeds, 
 and prove, to the fatisfa6]:ion of the conveyancer, 
 the right and title of the reverfioner's heir at law. 
 If thefe original fettlements are given up to a pur- 
 chafer, and it is known from examination, or from- 
 official extrads, that the recoveries have been well 
 ■fufFered, the fettlements themfelves being the 
 deeds to make the tenants to the precipe, (or what 
 by nonprofefiional perfons are called the reco- 
 very deeds) ; I fay that a conveyancer \s fundus offi- 
 cio, by approving of the title, and recommending 
 the purchafe or mortgage : and even fhould he 
 Hate in his opinion the poiTibility of a preconvey- 
 ance or fale or mortgage to another perfon, I 
 know of no means whatever, by which fuch fug- 
 geftion of doubt could be cleared away to his mo- 
 nied client, nor of any remedy that his client 
 would have againft the land or the prior pur- 
 chafer or mortgagee. For I think, that it will be 
 readily allowed, that the perfonal aileverations, 
 pledges and covenants of a perfon fo void of good 
 faith as to attempt fuch a fraud, v;ill afford but 
 flight relief to this fecond purchafer or mortgagee. 
 Such a cafe could not by pofllbility happen, if 
 every deed was null without inrolmenr, and the in- 
 rolment was full noiice to a purchafer or mort- 
 gagee. 
 
 J real
 
 [ S3 ] 
 
 A real Cafe anonymous, 
 
 A perfoDj in a large trading maritime town, 
 had taken a long building leafe of an cxtcnfive 
 piece of ground : he mortgaged parts of it to two 
 perfons fucccfTively, and delivered copies of his 
 title deeds to the mortgagees, alledging, that he 
 could not deliver up the original title deeds, as 
 they affedted other lands befides thofe, that were 
 mortgaged, which he had in contem.plation to af- 
 fign and underlet in different parcels : at length, 
 after he had twice mortgaged the fame parcels of 
 ground, without giving any notice of the firfl 
 miOrtgagcs, he procures a third perfon to advance 
 him a fu.n of money upon them, larger than either 
 of the two firfl: mortgages ; and to this third mort- 
 gagee he delivers his title deeds. The queftion is, 
 to whofe debt Ihall the land be firfl: liable ? For it 
 will barely anfwer one of the fums advanced upon 
 it. I need not fay, that the perfonal refponfibility 
 of this iniquitous mortgagor is of little avail. The 
 cafe is intended to be brought into court. How 
 neceflfary for the prevention of fuch pra6tices, is a 
 repofitory of infallible certitude, by which a lender 
 niay know the fecurity, upon which he advances his 
 money ? 
 
 Of the Regiflry of Deeds and Wills by Acl of 
 Parliament. 
 
 I cannot introduce this fubjeft more properly, 
 than by repeating the preamble of the 2d and 3d 
 of Queen Ann, which was the precedent and fample 
 of the other regifliering a6ls. And what this adt 
 recites of the wefl:-riding of the county of York 
 will appear at prefent more applicable to the 
 nation at large, on account of the extended ftate 
 of its commerce, than it was at that time appli- 
 
 E 3 cable
 
 [ 54 ] 
 
 cable to the weft-riding of the county of York. 
 " Whereas the weft-riding of the county of 
 " York is the principal place in the north for 
 " the cloath manufaftory, and moft of the traders 
 " therein are freeholders, and have frequent oc- 
 " cafions to borrow money upon their eftates, for 
 " nianaging their faid trade, but for want of a 
 " regifter, find it difficult to give fecurity to the 
 " fatisfaftion of the money-lenders, (although the 
 " fecurity they offer be really good) ; by means 
 *' whereof the faid trade is very much obftrucHied, 
 " and uiany familic-s ruined." Such was the fenfe 
 of the legiflature, rcfpcfting a very populous and 
 trading diftrift ; and fuch, I am confident, to 
 the confiderate part of the nation, will it be for 
 the country at large, in order to enable ve;idors 
 and mortgagors to make fuch clear and fatis- 
 fadlory tides, as will induce monied men to inveft 
 their money in real fccurities. One and the fame 
 principle a6luated them in that and the other 
 three regiftering acls, and us in our prefent at- 
 tempt. Let us confider the means they have 
 adopted, to carry that principle into pradbice. 
 
 There is not a doubt, but that thefe rcgiftries 
 were planned, formed and eftabliftied, for the mu- 
 tual benefit and conveniency of lenders and bor- 
 rowers of money on land fc^curity. The pream- 
 ble of an a6l is called by Lord Coke, the key 
 to open the meaning and intent of the ftatute ; and 
 by the preamble to the firft regiftering aft of Queen 
 Ann, which has been quoted, it evidently appears, 
 that the evil intended to be remedied by the ftatute 
 was the want of notoriety in the titles of land 
 owners, from which the invefting of money in 
 purchafes and on mortgages was obftrufled and 
 rendered difficult. Let us then fee, what remedy, 
 and in what m-anncr^ the acl has provided againft 
 this eviL 
 
 It
 
 t 55 3 
 
 It ena61:s, that (a) " a memorial of all deeds 
 ^' and conveyances, which from and after the nine 
 " and twentieth day of September in the year of 
 " our Lord one thoufand feven hundred and four, 
 " fhall be made and executed, and of all wills 
 ^' and devifes in writing made or to be made and 
 " publifhed, where the devifor or teftator fhall die 
 *^ after the faid nine and twentieth day of Sep- 
 " tember, of or <:oncerning, and whereby any ho- 
 *' nors, manors, lands, tenements or hereditaments, 
 ** in the faid weft- riding, may be any way af- 
 *^ fe6led in law or equity, may, at the election of 
 *' the party or parties concerned, be regiftered in 
 *' fuch a manner, as is hereinafter direfted ; and 
 ** that every deed or conveyance that fhall, at any 
 " time after any memorial is fo regiftered, be made 
 *^ and executed of the honors, manors, lands, te- 
 " nements or hereditaments, or any part thereof, 
 " comprized or contained in any fuch memorial, 
 *' fhall be adjudged fraudulent and void againft 
 " any fubfequent purchafer or mortgagee for va- 
 *^ luable confderacion, unlefs fuch memorial there- 
 " of fliall be regiftered, as by this aft is direfted, 
 *^ before the regiflering of the memorial of the 
 ** deed or conveyance, under which fuch fubfe- 
 " quent purchafer or mortgagee fhall claim ; and 
 ^^ that every devife by will of the honors, manors, 
 " lands, tenements or hereditaments, or any part 
 " thereof mentioned or contained in any m.emo- 
 *' rial fo regiftered as aforefaid, that fhall be 
 " made and publifned after the regiftering of fuch 
 *' memorial, fnall be adir.dged fraudulent, and void 
 *' againft any fubfequent purchafer or mortgagee 
 " for valuable confideration, unlefs a memjorial of 
 " fuch will be regiftered in fuch manner as is here- 
 *' inafter directed." 
 
 (/?) z & 3 Ann, c. 4. 
 
 E 4 And
 
 i: 56 ] 
 
 And it ena6ts, that " all and every mennorials 
 " fo to be entered or regifteredj fliail be put into 
 *' writing, in vellum or parchment, and diredied 
 *' to the regifter of the faid office ; and in cafe of 
 " deeds and conveyances, fhall be under the hand 
 *' and feal of fome or one of the grantors, or fome 
 " or one of the grantees, his or their guardians 
 " or truftees, attefted by two witnefies, one where- 
 " of to be one of the witnefies to the execution 
 " of fuch deed or conveyance; which witnefs (hall, 
 *' upon his oath before the faid regiftcr or his de- 
 '^ puty, prove the figning and fealing of the faid 
 ** memorial, and the execution of the deed or 
 " conveyance mentioned in fuch memorial ; and 
 '' in cafe of wills, the memorials fhall be under 
 *' the hand and feals of fome or one of the devi- 
 " fees, his or their guardians or truftees, attefted 
 '' by tvvo witnefies, one v; hereof fhall, upon his 
 " oath before the faid regifter or his deputy, prove 
 " the figning and fealing of fuch memorial ; which 
 " refpeftive oaths, the faid regifter or his deputy, 
 " is hereby impowered to admiinifter." 
 
 And it further enaifVs, that " every memorial 
 *^ of any deed, conveyance or will, fiiall contain 
 *' the day of the month, and the year, when fuch 
 *' deed, conveyance or will, bears date, and the 
 " names and additions of all the parties to fuch 
 " deed or conveyance, and of the devifor, or tefta- 
 " trix to fuch will, and of all the witneffes to fuch 
 *' deed, conveyance or will, and the places of their 
 " abode, and fhall exprefs or mention the honors, 
 *^ manors, lands, tenements and hereditaments, 
 " contained in fuch deed, conveyance or will, and 
 *' the names of all the parifhes, townfiiips, ham- 
 " lets, precinfts or extraparochial places, within 
 " the laid weft- riding, where any fuch honors, 
 *^ manors, lands, tenements or hereditaments, are 
 *' lying or being, that are given, granted, convey- 
 
 <' td.
 
 [ 57 ] 
 
 " ed, devifed, or any way afFefbed or charged by 
 " any fuch deed, conveyance or will, in fiich man- 
 *' ner, as the fame are expreli'ed or mentioned in 
 " fuch deed, conveyance or will, or to the lame 
 " effeil; and that every fuch deed, conveyance 
 *• and will, or probate of the fame, of which fuch 
 *' mem.orial is ih to be regiftered, as aforefaid, 
 " fliall be produced to the faid regifter or his de- 
 " puty, at the time of entering fuch memorial, 
 " who Ihall indorfe a certificate on every fuch deed, 
 '' conveyance and will, or probate thereof, and 
 **' therein mention the certain day, hour and time, 
 *' on which fuch memorial is lb entered and re- 
 " giftered, expreffing alio in what book, page and 
 " number, the fame is entered ; and that the faid 
 " regifter, or his deputy, fhall fign the faid certi- 
 '•^ ficate v/hen fo indorfed ; which certificates fhall 
 " be taken and allowed as evidence of fuch re- 
 " fpe6live regiftries in all courts of record what- 
 " foeverj and that every page of fuch regifter- 
 *' books, and every memorial, which fhall be en- 
 *'^ tered therein, fhall be numbered, and the day 
 *' of the month, and the year, and hour, or time 
 " of the day, when every memorial is regiftered, 
 *' fliali be entered in the margins of the faid re- 
 " gifter books, and of the faid memorial ; and that 
 " every fuch regifter fliall keep an alphabetical 
 " calendar of all parifhes, extraparochial places 
 *' and townfliips within the faid weft-riding, with 
 " reference to the number of every memorial, that 
 " concerns the honors, manors, lands, tenements, 
 " or hereditaments, in every fuch parifli, extrapa- 
 " rochial place, or tov/nlhip refpedively, and the 
 " names of the parties mentioned in fuch memo- 
 " rial ; and that fuch regifter Ihall duly file every 
 " fuch memorial in order of time, as the fame 
 ^^ Ihall be brought to the faid office, and enter or 
 
 " regifter
 
 [ 5S ] 
 
 ^'^ regifler the fiiid memorials In the fame order, 
 " that they fhall refpedlively come to hand." 
 
 There is an exception, that the aft fhall not ex- 
 tend to copyhold eilates, or to any leafe not ex- 
 ceeding twenty-one years, where the aftual pofiTef- 
 fion and occupation goes along witJi the leafe. 
 It is obvious, why copyhold eilates are taken out 
 of the flatute; for their furrender in the manor 
 court anfwers the notoriety of transfer, which was 
 evidently intended to be introduced and eftablifli- 
 ed throughout the weft-riding of the county of 
 York by the regiftry. 
 
 The 2d and 3d of Ann, for eftablifhing a regi- 
 flry in the weft-riding of York, was the firft a6t 
 relating to the regiftry that paiTed ; and although 
 the framers of that adt appear not to have been 
 complete mafters of the fubjed:; yet it gave rife to 
 the experiment, and turned people's thoughts more 
 to the fubjedr, which, by the following regiftering 
 adfcs, received fome additional light and improve- 
 ment. Each of thefe afts moft pointedly tends to 
 eftablifh the principles, grounds and reafons, upon 
 which I am attempting to fliew the expediency, or 
 rather the necefTity, of an univerfal inrolment. As 
 much, as hath been quoted of the firft regiftering 
 a6l, is repeatedly enafted by the other afts, which 
 fucceftively eftabliftied the regiftry in the eaft- 
 riding of the county of York, in the 6th of Queen 
 Ann ; in the county of Middlefex, in the 7th of 
 Qiiecn Ann ; and in the north-riding of the county 
 of York, in the 8th of George IT. 
 
 The firft regiftering ad palTed in 1703 ; and in 
 1706, it was found proper to pafs (<:?) "An ad; 
 " for inrolmeni of bargains and fales within the Jaid 
 *' ivefi riding of the county of Tork in the regifler 
 ** o^.ce, there lately provided, and for iuaking the Jaid 
 
 ■{o) 5 Ann, c. 18. 
 
 " regifler
 
 f 59 T 
 
 " regijlei' more effeolualT The primary reafon fof 
 pafllng this aft is fct forth in the preamble of it: 
 *' Whereas by an aft of parliament made in the 
 *' cyth year of the reig^n of King Henry the 8th, 
 *' intituled, For inrolments of bargains and Jales, 
 " it is enafted, That no manors, lands, tenements 
 ** or other hereditaments, fhall pafs, alter or change 
 " from one to another, whereby any eftate of in- 
 " heritance or freehold fhall be made or take 
 " effeft in any perfon or perfons, or any ufe there- 
 " of to be made, by reafon only of any bargain and 
 " fale thereof, except the faid bargain and fale be 
 **■ made by writing indented arid fealed, and in- 
 " rolled in one of the king's courts of record at 
 " VVcilminfter, or elfe within the fame county or 
 " counties, where the fam.e manors, lands or tene- 
 " ments, fo bargained and fold lie or be, before 
 *' the cuftos rotulorum, and two juftices of the 
 *' peace, and the clerk of the peace of the fimc 
 " county or counties, or two of them at the leaft, 
 *^ whereof the clerk of the peace to be one ; which 
 *^ aft hath been found by experience to be of little 
 *' or no ufe within the weft-riding of the county of 
 *' York, as to the inrolments of barg-ains and fales 
 " Vv'ithin the^fiid weft-riding, for that the clerk of 
 " the peace thereof for the time being, who hatli 
 " the keeping of the faid inrolments within the 
 *' faid weft-riding, is not by the faid aft enjoined 
 *^ to give any fecurity for the fafe keeping, nor 
 ** under any penalty for the negligent keeping of 
 *' the faid inrolments, nor is there by the faid aft 
 " any certain place appointed for the keeping 
 " thereof: And whereas by an aft of parliament 
 *^ made in the fecond year of his prefent Majefty's 
 " reign, intituled, An aft for the public regiftering 
 '' of all deeds, conveyances and wills, that fliall be 
 ^' made of any honors, manors, lands, tenenients 
 *^ or hereditaments^ within the weft-riding of the 
 
 " county
 
 [ 6o ] 
 
 " county of York, after the nine and twentieth day 
 *' of September 1704; a public office hath been 
 " ereded and eilabliflied at Wakefield, within the 
 ** faid weft-riding, at the public charge thereof, 
 " for regiftering and fafe keeping of memcrials, 
 " of all deeds, conveyances and wills, within the 
 '^ faid riding, and a public regifter hath been 
 " chofen, who hath according to the directions of 
 " the fame act, given fufficienc fecurity for the due 
 " execution of the faid office." There is certainly 
 much good fenfe and reafon in this ; and it applies 
 as ftrongly to every part of the nation, as it does 
 to the weft- riding of the county of York: but be- 
 lides the inconveniency and mifchief v/hich is here 
 allcdged, there is another very objeclionable cir- 
 cumftance, that attends the prefent law ; it creates 
 and leaves a doubt in thofe, v/ho have occafion to 
 fearch for any fuch deed ; for after having per- 
 haps fearched in vain the four courts of record, for 
 the inroiment of a deed ; from the infrequency of 
 enrolling deeds with the clerk of the peace, it fre- 
 quently does not occur to them to extend their 
 fearch to the county, where the lands lie ; and if 
 thought of, every one knov/s the little fatisfaftion, 
 that probably would attend a fearch, where there is 
 no regular depofic of the records, where there is no 
 refponfibility upon the clerks to preferve them, no 
 obligation to keep them orderly and open to in- 
 ipcdtion, and little pradice of entering them upon 
 the rolls. Thefe are reafons, v/hich i'peak the ex- 
 pediency of abftradts being entered in each re- 
 fpeclive countv, of deeds, which afreft lands lying 
 in divers counties, or which are inrolied in any one 
 of the courts of record, as it is provided for by the 
 draft of the bill fubjoined to thefe ftieets. 
 
 'J he a6t very properly therefore gives to every 
 bargain and falc inrolied in the regifter office, at 
 Wakefield, the fame force, as if it had been in- 
 rolled
 
 [ 6, ] 
 
 rolled in a court of record, or before the ciidos ro- 
 tulorum. Sec. according to the requifition of the 
 ad: of Henry VIII. and regiftered according to 
 the fecond and third of Ann. 
 
 In the firfl: regiftering a6t, no mention was made 
 of judgments, llatutes and recognizances, which 
 afFe<fb lands ; and yet they ought to be as noto- 
 rious and public, as deeds and wills afPefting lands, 
 in order that the title of the land may be open and 
 known to mortgagees, incumbrancers and purcha- 
 fers. It is therefore ena6led, that " no judgment, 
 " llatute or recognizance (other than fuch as fhall 
 '^ be entered into in the name and upon the pro- 
 '*' per account of her Majefty, her heirs and fuc- 
 " cefTors) which fhall be obtained, or entered into, 
 " after the faid four and twentieth day of June 
 " in the faid year of our Lord one thoufand (even 
 " hundred and feven, fhall affedl or bind any ma- 
 " nors, lands, tenements or hereditaments, fituate, 
 " lying and being in the faid weft-riding, but only 
 " from the time that a memorial of fuch judgment, 
 " ftatute or recognizance, fliall be entered at the 
 '^ faid regifter-office, exprefilng and containing, in 
 ** cafe of fuch judgment, the names of the piain- 
 *' tiffs, and the names and additions therein of the 
 " defendants, the fums thereby recovered, and the 
 " time of the figning thereof, and in cafe of fta- 
 '' tutes and recognizances, exprelfing and con- 
 *' raining the date of fuch ftatute or recognizance, 
 " the names, and additions of the cognizors and 
 *^ cognizees therein, and for what fums, and before 
 " whom the fame were acknowledged ; and that in 
 " order to the making an entry of fuch memorials 
 " of judgments, ftatutes, and recognizances as 
 " aforefaid, the party and parties defiring the fame, 
 " fhall produce to and leave with the laid regifter, 
 " or his deputy, to be filed in the faid public or 
 " regifter office, a memorial of fuch judgment, 
 X " ftatute
 
 [ 6i 1 
 
 ^^ flatute or recognizance, figned by the proper 
 " officer, who fliall fign fuch judgment, or his fuc- 
 " cefTor in the fame office, or by the proper officer, 
 " in whofe office llich flatute or recognizance Ihall 
 " be inrolled, together with an affidavit fworn be- 
 " fore one of the judges at Weftminfter, or a 
 ** mafter in Chancery, that fuch memorial was duly 
 " figned by the officer, whofe name fball appear to 
 " be thereunto fet ; which memorial fuch refpcc- 
 *^ tive officer is hereby required to give fuch plain- 
 *' tiff or plaintiffs, cognizee or cognizees, or his>, 
 " her or their executors or adminiftrators, or at- 
 " torney, or any of them, he, fiie or they, paying 
 " for the fame the fuoi of one ffiilling and no 
 « more.'* 
 
 And there is a provifo in the aft, that " if any 
 "judgment, fbatute,or recognizance, be regiftered 
 *' in the faid regifUer-office, within thirty days, 
 *^ after the acknowledgment or figning thereof, 
 " all the lands that the defendant or cognizor 
 ** had at the time of fuch acknowledgment or 
 ^'- figning, fhall be bound thereby," 
 
 But as it was found neceffary to enter and pub- 
 lifli every charge and incumbrance upon the 
 land J fo was it reafonable, whenever thefe charges 
 or incumbrances were fatisfied and paid ,off, that 
 the difcharge or exoneration of the land ffiould 
 alfo be known, as its value and price thereby 
 would vary much to a purchafer or incumbran- 
 cer : for it frequently happens, that land is affcded 
 and incumbered by a deed, and the money or 
 debt is difcharged, without the parties entering 
 into any new deed or writing, and therefore the 
 aft enafts, that " in cafe of mortgages, that ffiall 
 " be inrolled in the faid rcgifter- office, purfuant 
 ** to this aft, or whereof memorials have been or 
 " fliall be entered, purfuant to the faid aft made 
 *' in the fccond year of her prefcnt Majcftv's reign ; 
 
 « and
 
 [ 63 ] 
 
 *^ and alfo in cafe of judgments, flatutes and re- 
 " cognizances, whereof memorials fliall be entered 
 " in the faid regifter-qffice, purfuant to this a6t; 
 " if at any time afterwards, a certificate Iliall be 
 " brought to the faid rcgiller or his deputy, figned 
 " by the refpedlive mortgagors and mortgagees 
 *' in fuch mortgage, plaintiffs and defendants in 
 *' fuch judgment, cognizor or cognizees in fuch 
 " ftatute or recognizance refpeftively, their refpec- 
 " tive executors, admin iftrators or affigns, and at- 
 " telted by two witnefles, whereby it (hall appear, 
 *' that all monies due upon fuch mortgage, judg- 
 " ment, ftatute or recognizance refpedtively, have 
 '' been paid or fatisfied in difcharge thereof, which 
 " witnelfcs fhall upon their oath, before the faid 
 " regifter or his deputy, (who are hereby refpec- 
 ** tively impowered to adminifter fuch oath) prove 
 " fuch monies to be fatisfied or paid accordingly, 
 " and that they faw fuch certificate figned by the 
 " faid mortgagors and mortgagees, plaintiffs and 
 " defendants, cognizors and cognizees refpeftively, 
 " their refpe6live executors, admin iftrators or af- 
 ^* figns; that then, and in every fuch cafe, th^ 
 " faid regifter or his deputy, ihall make entry in 
 " the margin of the faid regifter books, againil 
 " the inrolment of fuch mortg-ao-e or re^iftrv of 
 *^ the memorial thereof, and againft the regiflry 
 *' of fuch judgment, ftatute or recognizance re- 
 " fpedively, that fuch mortgage, judgment, fta- 
 " tute or recognizance refpeftively, was fatisfied 
 ** and difcharged according to fuch certificate, to 
 " which the fame entry fliall refer; and fliall after 
 " file fuch certificate to remain upon record in the 
 "^ faid regifter-ofBce." 
 
 There is one fmgularity in this afl', that I can- 
 not pafs over without fome obfervation ; it cna<5ls, 
 that " all copies of the inrolments thereof reniain- 
 *^ iiig on record in the faid regifter- office, fliall be 
 
 " allowed
 
 [ 64 ] 
 
 " allowed In all courts, where fiich bargains and 
 " Tales, or copies, fhall be produced to be as good 
 " and fufficient evidence, as any bargains and fales 
 " inrolled in any of the courts at Weftminfcer, and 
 " the copies of the inrolments thereof." This 
 claufe, as well as the other annendments of the 
 fecond and third of Ann, is introduced into the 
 fixth of Ann, by which a regifter ofiice is efta- 
 blifhed in the eaft -riding of the county of York ; 
 and yet within four years after that time, viz. in 
 the tenth of Ann (a), the legiflature found it ut- 
 ceflary to pafs an exprefs law to make office copies 
 of bargains and fales inrolled under the ftatute of 
 Henry the Eighth, evidence. Such different a6ls 
 upon the fame fubjecft, argue but little knowledge 
 of the law, in the framers of the a6ts : for if the 
 tenth of Ann were ncceffary to be pafied, the co- 
 pies of bargains and fales were not evidence in any 
 court; and then this claufe of the fifth of Ann is 
 abfolutely futile and abfurd ; for it does not abfo- 
 lutely make fuch copies evidence, but it only 
 makes them ds much evidence as other copies, which 
 were not evidence at all ; and if copies of inrol- 
 ments were evidence before the tenth of Ann, then 
 is that ftatute nugatory and redundant and mif- 
 chicvous, by confining its efFefts to one fort of in- 
 rolled deeds, when it ought to have extended tb.em 
 to all J for many forts of deeds befides bargains 
 and fales, vt'ere inrolled by the common law, before 
 the ftatute of Henry VIII. as they ftill may be. 
 
 The preamble of the feventh of Queen Ann, for 
 cftablifliing a regiflry in the county of Middlefex, 
 which is one and tiie fame in efFefl as in the three 
 other regiflering adls, fpeaks fuch forcible language 
 in fupport of an univerfal iniolment a6l, that I 
 cannot pafs it by unnoticed (^). "Whereas by 
 
 {a) lo Ann, c. 18. {h) 7 Ann, c. 20. 
 
 ** the
 
 t 6s ] 
 
 " the different and fecret ways of conveying lands, 
 '* tenements, and hereditaments, fuch, as are ill 
 '^ difpofed, have it in their power to commit fraud, 
 *' and frequently do fo, by means whereof feveral 
 ** perfons, who through many years indufny in 
 '* their trades and employments, and by greac fru- 
 " gality, have been enabled to purchafe lands, or 
 " to lend monies on land lecurity, have been un- 
 " done in their ; urchafes and mortgages, by prior 
 " and fecret conveyances, and fraudulent incum- 
 " brances ; and not only themfelves, but their 
 " whole families thereby utterly ruined." 
 
 Who will ferioufly admit even the poflibility of 
 fuch evils, and deny that a remedy ought to be 
 applied to them? And who will hefitate to anfvver 
 this obvious queftion? When land is brought to 
 market, fhould there exift a poflibility of its being 
 clogged with hidden charges and fecret incum- 
 brances ? Befides the alterations or improvements 
 already mentioned, introduced into the regiilering 
 afts by the fixth of Ann (all of which are incorpo- 
 rated by that a6t into the firft regiftering a6t for 
 the weft-riding) there is one other, which is intro- 
 duced by that aft into all the three afts for the 
 three feveral ridings for the county of York, but 
 which never was introduced into that for the county 
 of Middlefex ; I do not in fadl fee that it hath any 
 immediate connection with the regiftry or inrol- 
 ment, any more than altering a form of pleading, 
 has with recording a verdi6l or judgment (a).'* 
 " And be it further cnafted by tlie authority afore- 
 " faid, that in all deeds of bargain and fale here- 
 " after inrolled, in purfuance of this a6l, whereby 
 *' any cftate of inheritance in fee-fimple is limited 
 " to the bargainee and his heirs, the words Grant, 
 ** Bargain, and Sale, (hall amount to, and be con- 
 
 {a) 6 Ann, c. 35. k£i, 30. 
 
 F " ftrued
 
 [ 65 1 
 
 " ftrued and adjudged in all courts of judicature: 
 i' to be exprefs covenants to the bargainee, his 
 " heirs and afligns, from the bargainor, for himfelf, 
 " his heirs, executors and adminiftratore-, that the 
 " bargainor, notvvithftanding any a6t done by him, 
 " was at the time of the execution of fuch deed 
 *' feifed of the hereditaments and premiffes thereby 
 " granted, bargained and fold, of an indefeafible 
 *' eftate in fee fimple, free from all incumbrances 
 '^ (rents and fervices due to the lord of the fee 
 " only excepted) and for quiet enjoyment thereof, 
 '^ againft the bargainor, his heirs and afTigns, and 
 " all claiming under him, and alfo for further 
 " alTurance thereof to be made by the bargainor, 
 *' his heirs and afligns, and ail claiming under him, 
 " unlefs the fame lliall be reftrained and limited 
 " by exprefs particular words contained in fuch 
 *' deed; and that the bargainee, his heirs, executors, 
 '^ adminiftrators and afngns refpe6lively, fhall and 
 *' may in any aftion to be brought, aflign a breach 
 '^ or breaches thereupon, as they might do in cafe 
 " fuch covenants were exprefsly inferted in fuch 
 " bargain and faie." 
 
 This idea, I prefume, was borrowed from Sir 
 Matthew Plale, who in the before-mentioned pam- 
 phlet (p. 37) fays, " that to prevent the length of 
 ** covenants in deeds, there be thought of certain 
 " words, that may carry in them the ftrength of co- 
 *■' venants or warranties ; as for inftance (dedij or 
 " give) to include a warranty and covenant againft 
 " all men, and alfo for further afilirances ; (grant) 
 " to include a warranty and covenant againft the 
 " party and all claiming under him, and for fur- 
 " ther alTurances for feven years ; (deliver) to in- 
 " elude a v/arranty and covenant againft the party 
 " and his anceftors and all claiming under them, 
 " and for further affurances within feven years; 
 " and divers inftances of this kind might be con- 
 
 " tinued
 
 [ 67 ] 
 
 " tinued by fhort words to include large fen- 
 " tences (<^). 
 
 Certain it is, that the prefent mode of convey- 
 ancing is more formal and prolix, than is neceflfary 
 to give effe6t to a deed. The nicety and extreme 
 caution of fome, the diffidence of others, and fear 
 to omit any thing, that they can fuppofe will be 
 binding in a deed, and perhaps the lucrative views 
 of others, in extending conveyances with their 
 wifhes or love of gain, are the unjuftifiable and 
 iinfatisfa^lory reafons for keeping on foot this 
 formal prolixity in modern conveyances. But 
 when we refled:, that every man is entitled to draw 
 his own deeds and wills, and that he may ufe what- 
 ever words and terms he pleafes to exprefs his own 
 meaning and intentions, and that each deed and 
 will differs one from the other, it will not be found 
 feafible to reduce conveyances, like certain writs 
 and procelTes, to a fixed form of words, terms, and 
 fentences. I fhall fay no more upon this fubjeft, 
 as it is not connefted with the notoriety of deeds 
 and muniments touching the title of lands : but if 
 hereafter any innovation fliould be attempted to be 
 introduced into the pradlice of conveyancing, it 
 furely ought to be fubmitted in a full and compre- 
 henfive view to the legiflature, that they may a6l 
 therein as in their wifdom fliall feem proper. 
 
 The laft regiftering ad, which is the eighth of 
 Geo. the id, by which a rcgiPcer ofHce was erefted 
 and eftablifhed in the north-riding of the county 
 of York, has no further improved upon any of the 
 former regiftering ads, than by exprelTing a fenfe 
 of the inefficient method of entering memorials in, 
 that inept, mutilated, and ineffectual manner pre-? 
 fcribed by that ad, as well as by the three other 
 
 (a) The word grant implies a general warranty ; Croke 
 Ja. 234. Hil. 7. Jac. 
 
 F 2 regiftering
 
 [ 6S ] 
 
 regiftering afts : it gives licence to inrol deeds and 
 wills at large, inflcad of regiftering thenn in the 
 manner before mentioned. It was rightly judged, 
 that if a repofitory was once eftabiiflied for the me- 
 morials of deeds, it ought to be a complete con- 
 fervatory of men's titles to their eftates. For this 
 end, the purport of every deed fhoukl be knov/n, 
 but by a memorial, the purport of no deed can be 
 known. 
 
 (a) " And whereas deeds have been often de- 
 *' ftroyed by fire and other accidents, be it further 
 " enafted by the authority aforefaid, that from 
 " and after the faid 29th day of September 1736, 
 *' any perfon or perlbns having or claiming title to 
 *^ any honors, manors, lands, tenements or he- 
 " reditaments, in the faid north-riding, may re- 
 '* gifter at full length in the faid regifter-ofnce, all 
 ** and every or any the deeds, writings, wills or 
 " conveyances, by or under which, fuch title fhall 
 " be claimed, and which fnall be miade and exe- 
 *' cuted, or figned and publiflied, and in the cafe 
 *' of v/ills, where the devifor or teftatrix fhall die 
 " after the faid 29th day of Septem.ber in the year 
 " of our Lord 1736 ; and the faid regifter or his 
 *^ deputy is hereby authorized to enter and inroi 
 *' all fuch deeds, writings, Vv'ills and conveyances, 
 " as (hall be fo brought to be regiftered at full 
 **■ length, by ingrolTing tl.c rn in parchment books j 
 " and the faid regifter or his deputy (hall, in the 
 " margin of every fuch entry and inrolment, men- 
 " tion the time of fuch entry and inrolment, and 
 " fhall indorfe and fign a certificate on fuch deed, 
 *• conveyance, or will, in m.anner, as is by this adt 
 •*' direfled, where a memorial is entered, and fhall 
 " fafcly keep all and every the books, wherein fuch 
 " entries and inrolments fhall be made in the faid 
 
 {a) 8 Geo. 3. c, 6. fc£l. 32. 
 X " public
 
 [ 69 ] 
 
 " public office, there to remain upon record; and 
 " all copies of fucli entries and inrolnients of fuch 
 " deeds, writings, wills and conveyances, fo re- 
 " giftered at full length, and which copies Hiall be 
 " figncd by the faid regifter or his deputy, and 
 " attefted by two or more witnefles, fhall be al- 
 " lowed in all courts of record to be good and fuf- 
 " ficient evidence of fuch deeds, writings, wills or 
 *' conveyances, fo regidered and deftroyed by fire 
 " or other accident." 
 
 Can any thing be more unm.anly and frivolous, 
 than for the framers of fo important an a6l of 
 parliament, to acknowledge themfelves thus pub- 
 licly fcnfible of a moft material defedl in the fyf- 
 tem of regifcering, and to point out the remedy, 
 but leave it only optional, as if they were fearful 
 of enjoining and compelling the means, which 
 would be efFeftualiy remedial of the evil felt and 
 complained of? 
 
 To the end a remedy may be complete, it mud 
 be commenfurate with the evil. Where then the 
 evil confifts in the pofiibility of a land-ov/ner's 
 fupprelTing or falfifying his title, the remedy, to 
 be commenfurate with the evil, fhould take away 
 this pofiibility ; which nothing, that is not univer- 
 fiilly coercive, can effect. By the regiftering afts, 
 the entering the memorial of a deed is merely 
 voluntary and optional ; it neither gives nor takes 
 away validity, it only fecures in fome cafes a pri- 
 ority amongft different incumbrancers. 
 
 'The Conjequences of a Deed not regijlered. 
 
 To fhew the confequences and effedls of thefe 
 afls in a ftronger light, we will fuppofe that a land- 
 owner in the well-riding of the county of York, 
 having an unincumbered landed property, fettles it 
 upon his family and dies. The deed, though not 
 
 F 3 regiftered.
 
 [ 70 ] 
 
 regiflered, is to all intents and purpofes valid 
 againft all mankind, except againft a piirchafer or 
 mortgagee ; and I fuppole none fuch. His fon 
 takes under this fetclement an eftate in tail male : 
 but finding it not rcgiftered, keeps it in his own pof- 
 fefllon ; fells the land, and dies without ifllie. His 
 brother is, under the fettlement, the next remain- 
 der man in tail male. Is it, or fhould it be deter- 
 mined by law, that the negleft of the fettler, 
 which could not afcerwards be redlified or fupplied, 
 fhall have the effe6b of extinguifhing the entail and 
 barring the remainder man, who by the law ought 
 only to be barred by the formality and notoriety 
 of a fine or common recovery ? If fo, it would 
 encourage and fupport the groffeft fraud, de- 
 ceit and impofition. So much I fuppofe, if the 
 deed creating the entail be not regiftered. 
 
 ^he Confequences of a Deed regiftered. 
 
 If I may be admitted freely to difcufs thefe afts 
 of parliament, it muft be allowed, that if a me- 
 morial of fuch a deed be regiftered according to 
 the diredlions and in ftrift compliance with every 
 requifition of the regiftering a6ts, the confufion, 
 inconveniency and injuftice, which might arife to 
 all parties concerned in it, would be infinitely 
 greater by the regiftering of it, than if it had not 
 been regiftered. 
 
 My nonprofeflional readers will excufe my run- 
 ning into detail, in order the better to expofe my 
 reafoningto a conclufive judgment. I will fuppofe 
 an indenture of three parts made between t!ie land- 
 owner of the firft part, his intended wife of the 
 fecond part, and one or more truftees of the third 
 parti by which he fettles his eftate on himfelf and 
 intended wife for life fuccclTively, with a provi- 
 fion for younger children, with remainder to the 
 
 firft
 
 [ 71 ] 
 
 ftrft and other fons of the marriage in tall male, 
 remainder to the firft and other fons of the fetuler 
 by any other woman in tail male, remainder to 
 the firft and other daughter and daughters of the 
 marriage, remainder to the fettler's brother for life, 
 remainder to his tirft and other fon and fons in 
 tail male, remainder to the fettler in fee ; with 
 powers to the two tenants for life of charging 
 the lands with portions for their younger children, 
 and of jointuring their wives, and with other pow- 
 ers of fale, exchange, leafing, and of revocation 
 and new appointment by the fettler. This deed 
 being drawn, a memorial thereof is alfo prepared 
 and executed at one and the fame time with the 
 deed. This memorial, according to the a6l, is 
 under the hand and feal of the grantor or fettler, at- 
 tefted by two witnefTes to the execution of the deed 
 of fettlement, and the execution thereof is proved 
 by the oath of one of fuch attefting witnelTes. This 
 memorial contains and fees forth the date of the 
 deed, and the exa6t defcription of the parties to 
 it, and the names and places of abode of the wit- 
 nefles to the execution of it by the party, who figns 
 and feals the memorial, and fuch of the parcels 
 as lie in the diftrid: fubjefl to the regiftry. And 
 when fuch memorial Ihall have been entered, and 
 a certificate indorfed upon the deed, mentioning 
 the certain day, hour and time, on which ilich me- 
 morial is fo entered and regiftered, and expreffing 
 alfo in what book, page and numbe]-, the faime is 
 entered, fhall have been figned by the regifter or 
 his deputy, fuch indoried certificate fhall be taken 
 and allowed as evidence of the regiftry in every 
 court of record. Here then is a deed regiftered 
 in every particular, according to the requifuions 
 of the ad of parliament. Let us attend to its 
 efFeds. 
 
 As it is regiftered according to the ad, it is 
 F 4 good
 
 [ 7^ 1 
 
 good and valid againft all mankind, even againft 
 purchafers and mortgagees, to whom the memorial, 
 as we have fcen, is complete notice of any prior 
 incumbrance created by that deed,at Icaft to every 
 one, who has feen or is informed of the memorial. 
 But a perfon of the moil ordinary underftanding, 
 will naturally apK, if a memorial ought to be, or 
 in faft can be notice of what it does not difclofe 
 nor mention. I fuppofe then an intended pur- 
 chafer of a part of this eilate, upon an advertife- 
 ment for fale, by the owner (who by the fetdement 
 is tenant for life only) fearches the regifter, and 
 finds the above-ftated memonal ; and from what- 
 ever appears upon the face of it, he cannot tell 
 whether it be the miemorial of a marriage fettle- 
 ment, an alignment of mortgage, annuity deed, 
 or, in fnort, what is the nature, purport and ef- 
 fect of the deed. The tenant tor life undertakes 
 to fell in fee -fimple : the fettlement is loft, mif- 
 laid, or depofited perhaps with a mortgagee or 
 lender of money, charged under the pov/ers of the 
 fettlement itfelf. And in this latter cafe, the 
 mortgagee may even in a court of equity refufe to 
 difcover his title deeds, upon this ground, that a 
 third perfon may find out a flaw in them. (^) It 
 is aflerted, that the deed in queftion was merely a 
 fettlement of jointure upon the wife, who is 
 dead, and of the land upon the ilTue male of the 
 marriage, with the immediate reverfion in fee to 
 the fettler, wh't* never had iifue male, but has ilRie 
 female, viz. three daughters : their provifion he 
 further afferts to be the fortune of their mother, 
 vefted in the funds. The purchafer completes his 
 purchafe of a part of thefe lands, pays his mo- 
 ney, and enters. The father goes abroad, and dies 
 out of the kingdom. One of the daughters pro- 
 
 (rt) Senhoufe v. Earle, 2 Vez. 450. Parrat v. Bellard, 2 
 Ch. Ca. 73. — Ibid 135. I Vcrn. 27. 
 
 cures
 
 [ 73 ] 
 
 cures the original fettlement, and they enter upon 
 the purchafer, who c^Tcainly cannot maintain his 
 title. For the deed, under which the daughters 
 claim an cftate tail, would have been a nullity 
 againil the purchafer, if it had not been regiftered ; 
 but having been regiftered, and he having feen or 
 been informed of the contents of the memorial, it 
 is valid and conclufive againft him., and he is pre- 
 fumed in law to have been a purchafer with full 
 notice and knowledge of an eftate tail prior to his 
 own title : and this knowledge he is prefumed to 
 have acquired through the medium of an afl of 
 law, intended undoubtedly to clear, manifeft and 
 eftablifh the right and title of the lands, in the 
 purchafe of which he has invefted his money. 
 
 1'he Mif chief of the regijiering A^s. 
 
 Innumerable cafes within the line of frequent 
 occurrences might be fraced, to fnew the mifchie- 
 vous confequences and abfurdity of thefe afts. 
 Why does the non-regiftry of a deed or will render 
 it null and void againft a purchafer or mortgagee ? 
 But becaufe, if not regiftered, it is prefumed, that 
 the eftates and incumbrances created by them 
 may be fupprefted from his knowledge, and there- 
 fore that his title might afterwards be impeached 
 and defeated by the prior incumbrancer, or taker 
 under the valid deed. Why then fhould the re- 
 giftering of the deed prevent this effe6t ? But be- 
 caufe the purchafer or mortgagee is fuppofed to 
 take his purchafe or fccurity with his eyes open, 
 and with notice from t^t fuppofed notoriety of all 
 prior charges by the memorial. And we have feen, 
 that this fuppofed aft of notoriety, does not even 
 mention the confideration of the deed ; that is, 
 whether it be a mortgage in fee or for years, whe- 
 ther it be for £. 500 or ^. 10,000, whether there 
 
 be
 
 [ 74 ] 
 
 be any limitations or powers of charging, felling, 
 leafing or other powers, or whether there are any 
 fhifting ufes, claiifes or provifoes, contained in the 
 deed, to affeft the land. 
 
 It is uncontrovertibly obvious, that if a deed be 
 intended to convey notice of a prior charge to a 
 purchafer or mortgagee, it mud effentially give 
 him certain and complete intelligence, to what ex- 
 tent the deed does aftually afFe6t the land : for 
 in purchafing or taking it in mortgage, he takes it 
 liable and fubjeft to all the limitations, trufts, 
 powers, provifoes, charges, conditions and cove- 
 nants contained in the deed^ of which, by the me- 
 morial, he is prefumed to have notice; but by 
 which he could not poffibly acquire any aftual or 
 real knowledge, intelligence, or information of 
 them. 
 
 I have hitherto fpoken of the knowledge, that is 
 fupprelTed, oris not difclofed by the memorial ^ 
 I muft now fpeak of that, which is acquired by it : 
 and I fpeak from experience. The mere know- 
 ledge of lands having been affefled by a deed ge- 
 nerally, is an endlefs lource of unanfwerable diffi- 
 culties, doubts and objeftions, in clearing a title : 
 and every practitioner muft often have experienced 
 the truth of what Sir Matthew Hale foretold, long 
 before any of the regiftering acts were paflcd («). 
 " There muft be inrolled at leaft fo much of 
 '' the deed or evidence, that concerns, firft, par- 
 " ties, grantor and grantee ; fecondly, the things 
 *' granted ; thirdly, the eftate granted ; fourthly, 
 *' all thofe parts of the deed or evidence, that 
 " have any influence upon the eftate, as, rent re- 
 <f ferved, conditions, powers of revocation, of al- 
 " teration, of leafing, the trufts, &c. and thofe 
 
 («) The aforefaid treatife of regiftering deeds and wills, 
 
 " Other
 
 [ 7J ] 
 
 ** Other things, which have an influence upon the 
 " eftate : and without all this done, and truly done, 
 " the purchafer or lender is as much in the dark as 
 " before, and cheated under the credit of a public 
 *' office eredled to prevent it." 
 
 The regillcring a6ts, ihough well meant, and in- 
 tended to produce the happiell effefts, were unfor- 
 tunately framed and penned by perfons, who muft 
 have been grcfsly ignorant of, or who'ly inatten- 
 tive to the firft principles of conveyancing. For 
 the rudeft novice in that art fhould be fenfible, that 
 no memorial or entry of a deed could benefit a 
 purchafer or mortgagee, which did not difclofe 
 fome knowledge of the title to the lands fold or 
 mortgaged -, and that a general confufcd aiTurance, 
 that fomething had been done to affcd: the land, 
 without any fpecification of the fa6l, muft enfure 
 an infinity of doubt, fufpicion, perplexity and in- 
 con veniency, to every purchafer and mortgagee. 
 
 yf Regijiry ought to he a Confer-jatory of Men's 
 Title Deeds. 
 
 One obvious and very important advantage of 
 deeds being regiftered and preferved in a public 
 repofitory, fhould be the perpetuation of men's 
 titles to their eftates, in cafe of the lofs or de- 
 ftruftion of their original deeds. It certainly tends 
 much to fecure the title to an eftate, when fuch 
 refort may be had to a fure fource of information : 
 elfe why the repofitory of records in general, of 
 fines and recoveries, of ftatutes, of bargains and 
 fales, and the probate and prefervation of wills ? 
 In the earlieft a<5t:s of parliament, v/hich have been 
 pafled concerning the inrolment of titulary docu- 
 ments, &c. we perceive that the legiflature enter- 
 ed into the true fpirit and intent of fuch repofito- 
 ries or confervatories, that they might anfwer the 
 
 double
 
 [ 76 ] 
 
 double end of notoriety and perpetuation, and 
 manifeflation and defence of the owner's riy;ht and 
 title to his lands (a). '* It is ordained and efta- 
 *^ bliflied, that all the writs of covenants, &c. before 
 *' that they be drawn out of the common bench by 
 " the chirographer, Ihall be inrolled in a roll, to 
 " be of record, for ever to remain in the fafe cuf- 
 ** tody of the chief clerk of the common bench 
 " and his fucceffors, &c. to the intent diat, if 
 " the notes in the cuftody of the chirographer, or 
 " the fines be embefiled, a man may have recourfe 
 *' to the faid roll, to have execution thereof, as he 
 *^ fhould have, if the fines were not embefiled, 
 « &c." 
 
 There can be no reafoning more juft, than from 
 parity of circumftances. We fee by the 3 & 4 
 Ed. 6. c. 4. concerning the grants and gifts by pa- 
 tentees out of letters patent, that v/here a " partial 
 *^ fale, transfer, demife or fettlement of an eftate 
 '^ holden under a grant of the crown by letters pa- 
 *' tent, is made by the patentee ; any perfon claim- 
 *' ing either immediately under the original grant, 
 ** or by virtue of any fuch fale, transfer, demife 
 " or fettlement, made by the patentee, may, by 
 *' fhewing forth an exemjplification or confiat of the 
 ** inrolment, or even of fo much thereof, as fliall 
 ** ferve for the matter in variance, make and con- 
 " vey unto himfelf title by way of declaration, 
 *^ plaint, avowry, title, bar, or otherwife, againft 
 '' the crown and all other perfons ; which exempli- 
 '^ fications (or copies) fhall be of the fame force 
 " and efi^eft, as the letters patent." 
 
 In the prefent flouri fifing ftate of commerce, 
 and the neceflarily confequent circulation of pro- 
 perty, eftates are conflantly undergoing fome par- 
 tial change or afiedion j and I fee no reafon, why 
 
 («) 5 Hen. 4. c. 14. 
 
 a. pur-
 
 t 77 ] 
 
 a purchafer of what has formerly been crown land, 
 fhoiild be enabled with more facility, than any 
 other purchafer, to make a good title to the land 
 he pnrchafcs. The reafon therefore, which indu- 
 ced the legiflature, in the year 1549, to make this 
 provifion for the fecurity of fomc purchafjrs and 
 claimants, is now, in the year 1789, fubmitted to 
 the nation at large, for extending a fimilar provi- 
 fion to all purchafers and claimants indifcrimi- 
 nately : and this will be moll efliciently done by 
 requiring every deed and will affe6ting lands to be 
 inrolled, and making office copies of fuch deeds 
 evidence in ail courts of juftice. 
 
 It certainly is for the mutual advantage of buyer 
 and feller, borrower and lender, that tliis conferva- 
 tory fhould be ufeful. It cannot be fo, if nothing 
 be preferved in it,." by which a title can be known, 
 much lefs perpetuated. This is the end and in- 
 tent of leoal adts beins: recorded : and fuch is 
 the effect of inrolling deeds ; the nature of which 
 we are now to confider. 
 
 Of the Inrolment of Deeds by common Law* 
 
 If it be true, as the late Judge Blackftone faid 
 {a)y that particular cuftoms are a branch of the 
 unwritten (or common) laws of England; but for 
 reafons that have been now long forgotten, parti- 
 cular counties, cities, towns, manors and lord- 
 fhips, were very early indulged with the privilege 
 of abiding by their own cuftoms, in contradi- 
 ftinflion to the nation at large ; which privilege is 
 confirmed to them by feveral a6ls of parliament : 
 if it be an univerfal ufage and cuftom in every 
 copyhold ellate throughout the nation, that every 
 a6l of alienation is done with notoriety and pub- 
 
 {a) El. Com. Tec. 3. p. 74. 
 
 licitv
 
 [ 78 ] 
 
 licity within its own manor ; that throughout the 
 manor of Taunton, every deed affecting land be 
 inrolled (a) ; if a deed inrolled within the city of 
 London, acknowledged before the recorder and 
 an alderman, and the woman examined, Ihall bind 
 as a fine at law, by reafon of the cuftom anciently 
 ufed ; if the inrolment of deeds in corporate towns 
 be confirmed by the ftatute of ufes {h) ; may we 
 not fairly infer, that it was the ancient ufage, cuf- 
 tom or law, to make every deed affefting land 
 public and notorious, by inrolment or otherwife. 
 
 We read in the 34 and 35 H. 8. c. 22, " that 
 *' divers doubts, queftions and ambiguities, had 
 *' arifen, whether the recoveries and deeds inrolled, 
 " which be in nature of fine, and whereupon wo- 
 " men covert have been ufed to be examined, 
 " taken, had or acknowledged, as well within 
 " the city of London, as in many other cities, 
 *' boroughs and towns within the realm of Eng- 
 " land, fliould bind all fuch women covert, that 
 " fhould happen to be examined upon the fame 
 " recoveries or deeds inrolled." It is therefore 
 enadled, " That all recoveries, deeds inrolled, and 
 ** releafes heretofore acknowledged and taken, or 
 *^ at any time hereafter to be taken and acknow- 
 " ledged before the mayors, aldermen, recorders, 
 *' chamberlains, or other head officer or officers, 
 ** as well of the city of London, as of any other 
 *^ city, borough, or town corporate, within the 
 " realm of England, having power and authority 
 " to take and receive the fame, according to the 
 " laudable ufages and cuftoms of the faid cities, 
 " boroughs, and towns ; and every of them lliall 
 " be and remain of the like force, flrength and 
 *' cfi^ea:," &c. as before this ftatute:' 
 
 {a) ^xookf aits inrolled, pi, 15. 
 
 (^) ^^ H. 8. 
 
 That
 
 t 19 ] 
 
 That the inrolment of deeds was vefy ancient, 
 appears from many inftances in the books. The 
 27th of H. 8. which requires every bargain and 
 fale of lands for a pecuniary confideration to be 
 inrolled within fix months after its date, did not 
 introduce into ufage or law the inrolment of deeds; 
 but only enacted, that no fuch bargain and falc 
 fhould be valid, unlefs inrolled within the time be- 
 fore limited. And this provifion by the 5th Eliz. 
 c. 26. was extended to the courts of the counties 
 palatine of Chefter, Lancafter, and Durham. It 
 is obfervable, that not one of thofe flatutes fays 
 any thing of the acknowledgment of the deed by 
 a party to it, before a judge or magiftrate j for 
 it is now generally underftood, that the necefTity 
 of an acknowledgment was owing to the common 
 law, which, as it would not admit the voluntary 
 inrolment of a deed, even for fife cuftody, without 
 acknowledginent ^ much lefs would it permit a deed 
 to be inrolled by virtue of this flatute, without 
 acknowledgment or fomething equivalent unto it : 
 from thence it clearly follows, that inrolment ef 
 deeds vjas by common law. 
 
 In a manufcript report of the cafe of Smartle 
 V. Williams^ Pafch. 6 William and Mary, by coun- 
 fel in the caufe (^), it is faid the plaintiff, (not 
 having the original deed, which was a mortgage 
 for a term of 500 years) "gave in evidence a copy 
 " of it inrolled in Chancery, upon acknowledg- 
 " ment before a mafter there ; and held, per Cu- 
 ** riamy good evidence, being an acknowledgm.ent 
 " of the party ; and no difference between this and 
 " a bargain and fale inrolled : for thou^^h the fta- 
 *' tute requires inrolment, yet it doth noi: make 
 *' the inrolment m.ore evidence, than in the other 
 *' cafe ; and inrolment of deeds was at common 
 " law" 
 
 («) Lev. 3. fee. 387. 
 
 jficknoW'
 
 [ 30 ] 
 
 Acknowledgment of Deeds by common Law. 
 
 "We fee as early as in the ajft year of Edward 
 the 3d (^), that a woman brought error to re- 
 verfe the inrolment of a deed of releafe made by 
 her hufoand and herfelf of ail her right in certain 
 lands, and affigned for error, that the Court had 
 inrolled the dt-ed by her acknowledgment, who 
 was then covert, whenas they had not power to 
 examine her without writ : and in the (^b) 44th of 
 the fame king, the lord of Tiptoft came into 
 court, to have a deed of feoffment to the lord 
 Walter Huet inrolled ; and the Court finding on 
 examination, that livery had not been made, would 
 not permit it to be inrolled till that was done. In 
 this cafe we even fee, that, to the notoriety of 
 livery and feifm, they fuperadded that of inrol- 
 ment, where land was pafTed by deed. In the (f) 
 7th of Edward 4th, one came to Littleton (<^), and 
 " prayed an obligation might be inrolled : Little- 
 " ton examined him, as to his knowledge of the 
 " contents and his age, telling him, if it was in- 
 *^ rolled, he could not deny the deed, or fay that 
 " he was not of age, or that it was made by du- 
 " refs : but he agreeing to the inrolment, it was 
 "inrolled." In this inftance, the inrolment was 
 not of a deed palling land, but only of a bond, 
 which now the law does not require to be inrolled. 
 And yet a recognizance mull be inrolled j for the 
 acknowledgment of it before a judge gives it the 
 force of a record^ though the inrolment of it be 
 neceflary for the teftification and perpetuating of 
 
 (rt) Br. fahs inrolled, pi. 3. 
 \b) Wx. ih'uicm. 
 \c) ^x.ibid. pi. II. 
 
 (^) It appears, from Dugdale, that Littleton was a judge 
 of the common picas in the 6th year of Edw*" the 4th. 
 
 it.
 
 f St ] 
 
 it (a). Statutes merchant and of the flaple are holden 
 to be effectual againfl executors without inrohnent : 
 but againft purchafers of the conufor's land, they 
 are not of force, unlefs inroUed within three months 
 from their date, (i*) And Lord Coke, 2 Infl. 673, 
 fays, *' A deed acknowledged by hufband and wife 
 *^ jfhall ly the common law be inrolled only for 
 " him, and if inrolled for both it binds her not /* 
 and gives the reafon before mentioned, " that 
 " none have power to examine her without writ." 
 
 I think I need fay nothing more to prove, that 
 the commion law of this country authorifes and 
 vyarrants the inrolment of deeds. There cannot, 
 however, be any'higher authority to prove this po- 
 rtion, than an a6l of parliament paffed in the 6th 
 year of Richard II. c. 4. which is above four hundred 
 years ago, viz. in the year 1382. This ilatute-en- 
 a6ls, that all deeds inrolled, which had been defl-roy- 
 ed in the then late infurre<5tion, being exemplified, 
 fliould have the force and effeft of the originals. 
 It is to be obferved, that the ftatute fpeaks of a gene- 
 ral ufage and cultom, not of a rare fcarce praftice ; 
 it fays, all inrolments of deeds and other muniments 
 inrolled in any of the four courts of record; in fome 
 of which, it is more than probable, that the great- 
 efl part, if not all deeds affefting the titles of 
 lands were in thofe days inrolled. 
 
 It would admit of much argument, though of 
 no important confequence, to difcufs the point, 
 whether the common law did or did not require 
 the inrolment of every deed, and how, in procefs 
 of time, this requifition became relaxed, or the 
 ufage difpenfed with. It is fufficiently evident, 
 from the inllances adduced, that the principles and 
 reafons, upon which the common law either re«» 
 
 (fl) Hob. 196. Hall V. Winchfield. 
 \^b) Went, of Executors, 159. 
 
 quired
 
 [ 82 ] 
 
 quired or allowed of the inrolment of deeds, are 
 luch as evince, in the prefent day, the neccffaiy 
 exigency of an univerfal inrolment. 
 
 Of the Inrolment of Deeds by Statute. 
 
 Sir M. Hale fays, that {a) " it was tlie great 
 " defign of the llatute of 27th H. 8, to have 
 " brought about that method of afllirance ; and if 
 " it had been purfued, it had before this time been 
 " brought to great perfe6lion, and done much of 
 ** that good, which is now intended by it." 
 
 We have already faid fo much about this fla- 
 tute, that it will be ufeiefs to repeat the reafons of 
 its having palTed into a law, or of die eifc6ls of 
 that law. 
 
 Effects of inrolling Deeds. 
 
 There are fome effefls to be found in the 
 books produced by the inrolment of deeds, which 
 I have not as yet noticed ; for inftance, (/>) " a 
 " deed to lead the ufes of a fine of the eftate of 
 *' the wife; the mafter of the Rolls was againfl ad- 
 " mittir.g a copy of the inrolment, and made a 
 *^ diftin(5tion that the inrolment of a bargain and 
 *^ fdle (by fiatute) is a record, but a deed for fafe 
 " cuftody might be faid to be recorded : yet on an 
 " ifilie direfted by lord keeper, the chief juftice 
 " admitted it in evidence." And in the before- 
 mentioned cafe of Smartle v. Williams., (3 Lev. 
 387) on a trial at bar, " a copy of a mortgage- 
 " deed" (which v/as not a bargain and fale accord- 
 ing to the fiatute) " was admitted, and the Court 
 " faid the acknowledgment binds the party and 
 *' all claim/mg under him." 
 
 {a) Sir M. Male's trr.ifl on the benefit of regiftering deeds, 
 p. 36. 
 
 {b) 2 Vern. 471. 591. 
 
 I can-
 
 [ 83 ] 
 
 I cannot here forbear repeating an obfervatlon, 
 which I before made, that the fubjeft of thefe 
 Iheets had never been thoroughly inveftigated, ma- 
 turely confidered, nor fettled in any regular con- 
 fidency. Frorri the precedents that I have quoted, 
 it not only appears, that a copy of a bargain and 
 fiile inrolled according to the ftatute of Henry 
 VIII. but even of any other deed inrolled, whetlicr 
 for fafe cuftody or otherwife, may be produced in 
 evidence : but if diis were fuch pofitive and certain 
 law, whence then arofe the neceffity of paffing the 
 before mentioned a6l of the fixth of Richard II, 
 for if office copies were evidence of deeds inrolled, 
 why needed they to be exemplified under the great 
 feal to make them evidence ? And again, much 
 nearer to our own days, the following part of the 
 tenth of Queen Ann, c. i8. kc. 3. muft either 
 prove the law to be otherwife, or it is perfeftly 
 ufelefs and redundant: " and for fupplying a fail- 
 " urp in pleading or deriving the title to lands, 
 '^ tenements or hereditaments, conveyed by deeds 
 " of bargain and fale, indented and inrolled ac- 
 " cording to the fbatute made in the twenty-feventh 
 " year of the reign of King Henry VIII. for in- 
 *^ rolment of bargains and fales, where the original 
 " indentures of bargain and fale to be iliewed forth 
 " or produced, are wanting, which often happens, 
 " efpeciaily where divers lands, tenements or here- 
 " ditaments are comprized in the fame indenture, 
 " and afterwards derived to feveral perfons : Be in 
 " further enafted by the authority aforefaid, that 
 " wherein any declaration, avowry, bar, replication 
 " or other pleading whatfoever, any fuch indenture 
 " of bargain and fale inrolled, fnall be pleaded 
 " with a profert in curia, or offer to produce the 
 ** fame, the perfon or perfons fo pleading, fhall 
 " and may produce and iliew forth, and be fuf- 
 '* fered and allowed to produce and lliew forth, 
 
 G 2 '"'by
 
 [ H ] 
 
 *^ by the authority of this a6t, to anfwer fuch pro- 
 " fertt as well againft her Majefty, her heirs and 
 " fuccefTors, as againft any other perfon or perfons, 
 *' a copy of the inrolment of fuch bargain and 
 " fale, and fuch copy examined with the inrol- 
 '^ ment, and figned by the proper officer, having 
 *' the cuftody of fuch inrolment, and proved upon 
 *^ oath to be a true copy, fo examined and figned, 
 ^' fl-jall be of the fame force and effe6t, to all in- 
 " tents and conftruflions of law, as the faid in- 
 '* dentures of bargain and fale were and fhould 
 " be of, if the fame were in fuch cafe produced 
 " and fhewn forth." 
 
 To follow up the obfervation ;. we muft not for- 
 get that it i? holden, that the acknowledgment binds 
 the party acknowledging, and all claiming under him : 
 and yet it is faid in {a) Taylor v. Jones, " If two 
 *' are parties to a deed, and one acknowledges it 
 **■ before a judge, it binds the other ; and if a 
 ^' man lives in New England, and would pafs land 
 "■ here, they join a nominal party with him in the 
 " deed, who acknowledge-s, and it binds." Now, 
 if we do but reflect one moment upon the reafon, 
 nature and effe6t of an inrolment, we fhall find, 
 that the acknowledgment, which is the warrant to 
 the officer to inrol the deed, is nothing more nor 
 lefs, than an avowal by the granting party, that 
 the deed which he has executed is his own a6l and 
 deed ; and that he thus folemnly defires it may be 
 from thenceforth rendered notorious, and perpe- 
 tuated as a record of the court, for the purpofe 
 of manifefting, maintaining and eftablifliing the 
 tide. Now, what can fo ilrongly infult common 
 fenfe (and what elfe ffiould all law and equity 
 fpring from or be reduced to) as to be taught, 
 
 (^a) I Salk. 270. 
 
 ;hat
 
 [ 85 ] 
 
 that the (a) inrolment of a deed is to no other ptir- 
 po/e^ but that the party jhall not deny it afterwards ; 
 and that the acknowledgment of a mere nominal 
 party, who in fa6l is neither grantor nor grantee, 
 jhall bind, and make the inrohiient valid : for to 
 what good, or even mifchievous purpofe fhall a 
 mere nominal party deny a deed ? 
 
 Again it is holden, (/^) that againji a deed inrol- 
 led, a man may plead infancy, although none can 
 plead non efl factum j and yet why fhould the 
 acknowledgment by a mere nominal party, or by 
 a grantee, prevent the grantor, (whom I fuppofe 
 totally ignorant of the acknowledgment and fubfe- 
 qiient inrolment) from pleading yion efl factum, af- 
 ter fuch inrolment, more than if the deed had not 
 been inrolled ? After fuch glaring inconfiftencies, 
 it would be too abfurd to deny, that the law ought 
 to be amended and improved. 
 
 Before I entirely quit this fubjeft, it will not be 
 improper to call the attention of my readers to the 
 inattention and ignorance of parliament concerning 
 the law of inrolment. The 21ft Jam. I. c. 26, 
 after reciting, " that many lewd pcrfons of bafe 
 " condition, ufed to acknowledge deeds in the 
 " name of others, not privy nor confenting to 
 " the fame, which hath and daily doth turn to the 
 " great charge, trouble and undoing of many of 
 " the good fubjefts of this kingdom, and rather 
 ^^ for that there is no remedy in law to reform 
 " thefe and the like abufes ;" enafts, " That all 
 " perfon or perfons acknowledging or procuring 
 " to be acknowledged, any deed or deeds inrolled 
 " in the name of any other perfon or perfons not 
 " privy or confenting to the fame, and being 
 " thereof lawfully convi6led or attainted, fhall be 
 
 (^) Viner. Inrolm. E. 3, pag. 445. 
 \b) 2 Lev, 65. Sir W. Pelhain's cafe. 
 
 G 3 " adjudged.
 
 [ 86 ] 
 
 " adjudged, efteemed, and taken to be felons, 
 " and fuffcT the pains of death," &c. Now if, 
 as we have feen, the acknowledgment binds the 
 acknowledging party and all claiming under him, 
 and the inrolment binds only, when the deed hath 
 been acknowledged, (even by a nominal party) 
 I beg to be informed, what mifchievous effects can 
 be produced by the acknowledgment of a deed in 
 the name of another ferjcn not privy nor conjeniing 
 to the fame : for it is evident, that fuch perfon is a 
 ftranger to the deed, as well as to the inrolment of 
 it, and therefore utterly incapable of giving or tak- 
 ing away its validity and efFe6l. It is then certain, 
 that the framers of this a<5l, neither attended to 
 -nor underftood the nature, operation and crTe6ls of 
 acknowledging; and inrolline; deeds, &:c. &;g. 
 
 DO O ' 
 
 Of the Inrolment of Roman Catholics Deeds, 
 
 The next time the legidature thought proper to 
 interfere or pals any law concerning the inrolment 
 of deeds, was upon the fpur of the times ; to 
 anfwer a particular purpofe, and produce a parti- 
 cular efted. This was to render notorious and 
 public every aft and deed, by which a catholic 
 pafTed, altered or changed his landed property. 
 For, by the ^d Geo. I. c. ilS, it is enaded, " That 
 *' from and after the twenty-ninth day of Septem- 
 " ber in the year 17 17, no manors, lands, tenements, 
 *' hereditaments, or any intereft therein, or rent or 
 *' profit thereout, fhall pafs, alter or change from 
 " any papift or perfon profefling the popifh reli- 
 *' gion, by any deed or ' will, except fuch deed 
 " within fix months after the date, and fuch will 
 *' within fix months after the death of the teftator, 
 *' be inrollcd in one of the king's courts of record 
 '* at Weftminfter, or elfe within the fame county 
 ** or counties wherein the manors, lands and tene- 
 
 " ments
 
 [ 87 ] 
 
 " meats lie, by the cufbos rotulomm and two 
 " jiiftices of the peace, and the clerk of the peace 
 " of the fame county or counties, or two of them 
 " at the leail, whereof the clerk of the peace to 
 *' be one." An a6l a] moft annually pafTcs, for <?/- 
 lowing further time for inrohnent of deeds and zvills 
 made bypapijisj and for the relief of protejian} piir- 
 chafers. As this adl of Geo. I. is of much uti- 
 lity and importance in the profecutioh of my pre- 
 fent refearches, I fhall premife fome general ob- 
 fervations upon its nature, tendency and opera- 
 tion, before I enter into the legal effeds of it, with 
 rcfpe6l to the law of inrolment. 
 
 This is one of the many penal laws now in force 
 againfl: the Roman catholic fubjedls of this coun- 
 try. It is a penal law, becaufe it was intended to 
 impofe a burthen upon the profeflbrs of that reli- 
 gion, to which their fellow fubjeds were not li- 
 able J and to deter them in future from offences, of 
 which they were then prcfumed guilty. 
 
 It is obvious, that before a man can give title 
 to another, he muft have a title himfelf : Nemo daty 
 quod non hahet. A man cannot have land himfelf, 
 if he be by law incapacitated to have or to hold it. 
 By our laws, there are but two methods of acquir- 
 ing landed property in this country : one by de- 
 fcent, when the law cafts the inheritance upon the 
 heir at law, after the death of the anceftor ; the other 
 by purchafe, which includes every acquiHtion of 
 land under a gift, deed or will. Now when this 
 afl of the 3d Geo. I. paffed, the legiflature could 
 not, or at leaft ought not, to have been ignorant 
 of the nth and lath of William III. c. 4, by 
 which every pcrfon educated in the popifh religion, 
 or profeffing the fame, is abfolutely " dijahled and 
 *■ made incapable to inherit or take by defcent-, devife^ 
 " or limitation in pojfeffion^ reverfion cr remainder^ 
 ** anj lands, tenements or hereditaments within the 
 
 G 4 kingdom
 
 [ 88 ] 
 
 " kingdom of England, dominion of Wales, and 
 " town of Berwick upon Tweed, and is alfo dij- 
 " abled and tnade incapable to purchafe either in his 
 *^ or her own name, or in the name of any other per- 
 *' Jon or perJonSi to his or her uje^ or in trufi for him 
 *' or her^ any manors., lands or profits out of lands ^ 
 '^ tenements, rents, terms or hereditaments, within 
 ** the kingdom of England, dominion of Wales, 
 " and town of Berwick upon Tweed, and that 
 *' all and fingular eflates, terms, and any other 
 '' interejis and profits whatfoever out of landsy 
 " from and after the faid loth day of April 
 " (viz. 1700) ynade, fuffered or done to or for the 
 " uje or behoof of anyfuch perfon or perfons, or upon 
 " any trujl or confidence mediately or immediately to or 
 " for the benefit or relief of any fuch perfon or perfons, 
 " fjall be utterly void and of none effect to all intents ^ 
 *' conftru£lions and purpofes whatfoever.'' 
 
 Can words be moie obvious, explicit, and con- 
 clufive ? If then a perfon educated in or profefling 
 the Roman catholic religion, can neither take land 
 by defcent nor purchafe, he cannot take it at all : 
 if he cannot take, he cannot hold; for prius efi 
 habere quam tenere. An alien may take land by 
 purchafe: but he cannot hold it, but for the bene- 
 fit of the crown. If he cannot have, he cannot 
 give. How abfurd and repugnant then is it to 
 ena6t, that no deed nor devife of land by a Roman 
 catholic, fhall be good and valid, unlefs inrolled 
 within fix months : for the confequcnce evidently 
 is, therefore, if Jo inrolled, it fonll be good and valid. 
 That this was the intent and fenfe of the legifla- 
 ture is fufficiently clear, from the conflant ufage of 
 inrolling all fuch deeds and wills, which have often 
 been controverted and eftablifhed as valid in the 
 courts of law and equity. 
 
 If this ad of -^d Geo. I. can operate at all, it 
 muft be by virtually repealing the nth and 12th 
 of Wil. and the Brcs in London, in the year 1780,
 
 [ 89 ] 
 
 were very flagrant proofs, that the nth and lath 
 of Wil. III. till that time was generally iindcrftood 
 to be unrepealed and in full force. In the cafe of 
 Pelham and Fletcher (a), " a Papift alTigned to a 
 " proteftant for a full confideration : an ejcftment 
 " was brought againlt the affignee by a fubfcquent 
 *' mortgagee, who recovered by the difability of 
 " the firft mortgagee. (J;) All this appeared upon a 
 " bill brought in Chancery ; and my lord chancel- 
 '^ lor was of opinion, that ^ nwtgdge to a -papjl is 
 " void (c). But in this cafe, the afiignment to 
 " the proteftant, and the trial in cjeftment, were 
 " both before the 3d of Geo. I." (that is, the 
 ft"atute for inrolling the deeds of Papifts) " which 
 " were it otherwife, would it feems have made 
 " an alteration." And what other alteration, but 
 by removing the difability of the papift, and con- 
 fequently virtually repealing the nth and 12th 
 Wil. III. by which the difability was created. 
 
 'The Inconfijlency of thcfe two penal Laws, 
 
 If we take a complex view of thefi two a6ls, 
 the reprefentation will be faithfully this : A papiit, 
 who, by the aft of Wil. can neither take land by 
 defcent nor purchafe, may, by the a6t of Geo. I. 
 give or devife it away by deed or will inrolled. 
 What can more efficiently do away every effect 
 of the ftatute of Wil. III. than the 3d of Geo. I. 
 and all the fubfcquent a6ls, by which the lands 
 pofTefied by Catholics are fubjetSted to a double 
 landtax, and to a regiftry, and are almoft annually 
 affedled by the a6l for allowing further time for 
 inrolment of deeds and wills made by papijis, and 
 for the relief of proteftant pur chafers ? 
 
 (a) 3 New Abr. 709, Michaelmas 1729. 
 [6) For being, as apapill, difabled ta take the land hirafelf, 
 he could not alfign it to another. 
 (f) Viner recufant, 263. 
 
 It
 
 [ 90 ] 
 
 It is feif-evidentj that lands which are pofTefled 
 by a Catholic, muft have been taicen by the pof- 
 feffor, either by defcent or purchafe ; for there is 
 no other nnode of taking lands : and by the a.d: of 
 Wil. III. he is made abfolutely incapable of taking 
 lands by defcent or purchafe. Either therefore the 
 a6l of Geo. I. with every fubfequent annual aft 
 relative to the fanme fubjeft, is an abfolute nullity, 
 as grounded upon an impoffible fuppofition, viz. 
 that a Catholic could take land by defcent or purchafe y 
 fince the paffuig of the act cf Wil. III. or thefe latter 
 afts completely do av/ay the eftefts of the aft of 
 "Wil. III. by enabling papifts to take land by def- 
 cent or purchafe. And I put thefe quefcions im- 
 partially to every man. Did the Roman Catholics 
 obtain any relief by the repeal of that part of King 
 "William's aft ? In what could that relief confift, 
 but in acquiring a capacity, v/hich they had not 
 before, of taking lands by defcent or purchafe ? It 
 is one amidft many ilriking inftances of the blind 
 and inconfiderate judgment of the public, when 
 we throw our eyes back to the ferments and riots, 
 that fet London in a blaze in the year 1780, mere- 
 ly becaufe the legiflature had repealed in exprefs 
 words, what had in faft been virtually repealed from 
 the year 17 17. For by this aft of repeal pafTed 
 in the 20th year of his prefent Majefly, a Roman 
 Catholic m.ay nov/ take land by defcent or pur- 
 chafe, which he may fettle, charge, mortgage, fell 
 or give away by deed or v/ill inrolled : and by the 
 3d Geo. I. he was enabled to fettle, charge, 
 mortgage, fell or give away his land, by deed or 
 will inrolled; v^hich he could not do without taking 
 the land : what then can a Roman Catholic do 
 more under the exprefs repeal of that part of King 
 William's aft by the 20th of his prefent Majefty, 
 than he before could under the virtual repeal of it 
 by the 3d Geo. I. ? 
 
 The inconfiftcncics of thefc penal ftatutes run to 
 
 an
 
 [ 9- 1 
 
 an extent exceeding all credibility. For will any 
 man fuppofe it pofTible, that the wifdoni of theBri- 
 tifh legillature fhould declare in the fame fpirit and 
 intention, and by written laws, meant to rubfift 
 and be inforced together, and with a view and ex- 
 prels reference to each other (a), that a papilt not 
 having taken a particular oath prefcribed by the 
 30th of Charles II. is rendered abfolutely inca- 
 pable of taking land by defcent or purchafe (/^) : 
 and that every papift fhall take this very oath at the 
 age of twenty-one years or within fix months after 
 his coming hita pojjejfion of any lands or rents out of 
 lands ^ or fiiall regifter the eftate into the pojj'effion of 
 which he has come in the manner fpecified in the 
 a6i, under the penalty of forfeiting the fee-fimple 
 thereof; two thirds to the king, and one third to , 
 the informer? Can folly and abfurdity be more 
 glaring ? Firft to require an oath to be taken at 
 the age of eighteen, and then to annex the inca- 
 pacity of taking the land to the noncompliance with 
 that requifition; and afterwards to require the fame 
 oath to be taken at the age of twenty-one, or fix 
 months after a perfon comes into poffefTion ofwhaf 
 he cannot take ; and to annex the forfeiture of that 
 very land, which he cannot take, to the king and in- 
 former, for his neglecting to regifter the fame after 
 he has taken it, 
 
 Inconveniences of the 3^ of Geo. I. 
 
 The act requires every deed and will to be In- 
 roiled within fix months from the date thereof, but 
 makes no provifion for either a deed or will execu- 
 ted "out of the nation, which frequently cannot by 
 poflibility be inrolled within the time limited : ic 
 dire6ts the deed to be inrolled, yet it neither ex- 
 prelTcs whether it fliall be inrolled by acknowledg- 
 
 («) II & 12th Wil. 3d. i^b) 3 Geo. li^. 
 
 ment
 
 [ 91 ] 
 
 ment or Jiat, or whether a copy of the inrolment 
 iliall be admitted in evidence. If efFe6l were to 
 be given to the aft of Wil. III. by really incapaci- 
 tating a Roman Catholic from taking lands by 
 defcent or pnrchafe ; thefe latter confiderations 
 could not afFeft them : but they are of infinite 
 confequence to proteftant purchafers ; for fup- 
 pofing, that under a deed or will executed by a ca- 
 tholic owner of land at Bengal, a Proteftant fhould 
 become intitled, to the prejudice of the heir at 
 law ; would it not be a hard cafe on one hand, 
 that an heir at law fhould be difinherited by an in- 
 ftrument, which under an exprefs a6l of parliament 
 is null and void j and on the other hand, that a 
 purchafer fliould be defeated in his rights, for the 
 omifTion of a condition impofed by a6t of parlia- 
 ment, which it was impoflible to perform ? 
 
 XJnconJiitutional Hardjhip of the 'Third of George the 
 
 Firfi. 
 
 An unprecedented hardlhip attends this a6l, 
 which mull upon confideration appear wholly un- 
 conftitutional ; for by it a man is compelled by a 
 public a6l recorded in court, to avow and confefs 
 himfelf guilty of a crime, which draws upon him 
 the very extreme rigor of the law, in the penalties 
 of premunire, outlawry, felony and treafon j to 
 which every one knows, that the profeiTion of the 
 Roman catholic religion fubjcfts its votaries. The 
 very acknowledgment of the necefllty of inrolling 
 a deed under this ftatute is ipfo faElo an avowal 
 of a perfon's being a Roman Catholic. Let us 
 hear the language and doftrine of our courts upon 
 this matter (^) : "A bill was brought, praying, 
 " that defendant mi^^ht difcover whether I. S, 
 
 *c>' 
 
 {a) 3 New. Abr, 799. Tiin. 12th G. 2. Smith v. Read. 
 
 " (under
 
 [ 93 ] 
 
 *' (under whofe will the defendant claimed) was a 
 -•' papift or not. The defendant pleaded the ftatute 
 *' of the eleventh and twelfth William III. and the 
 *' Lord Chancellor was of opinion, that he was not 
 '* obliged to difcover ; that there is no rule better 
 " ellablifhed, than, that a man Jhall not be obliged 
 *'' to anJweVy to what may Jubje5l him to the ■penalty 
 *' of an act of -parliament y and there can be no doubt, 
 ** but this is a penal law infliding difabilities or 
 *' incapacities. If a bill is brought againft the 
 " perfon for difcovery, whether he is a Papift or 
 '^ not, he is not bound to difcover; and where ia 
 " the difference between him and the perfon claim- 
 " ing under him ? Befides, what fways with me 
 " very much is the great inconvenience that would 
 " follow, fhould this plea be difallowed j we fhould 
 *' have nothing in this court but bills of difcovery, 
 " whether fuch and fuch perfons were Papifts or 
 " not, and nobody knows what confufion would 
 " follow, therefore the plea muft be allowed." Is 
 it not ftrange, that whilft the courts held fuch 
 doftrine, the iegiflature fhould contrive, by a fide 
 wind and indirect compulfion, to force a man to 
 anjwer to what may fubje£f him to the penalty of an 
 aci of parliament "i And there is no doubt but this is 
 a penal law. 
 
 Further huonveniences of the ^d of George I, 
 
 Befides the inconfiftencies and hardfhips of the 
 a6l, a very important inconveniency muft ever cer- 
 tainly attend the execution of it. It certainly 
 paffed to the end (as the preamble expreff(?s it) 
 that the ejtates of Papifts may be certainly known and 
 dif covered. Should not then the a6l have pre- 
 fcribed fome method of afcertaiping this crime of 
 popery, which renders a perfon incapable of taking 
 land by defcent or purchale ; or which requires the 
 Enrolment of aU their deeds and wills, and have 
 
 determined
 
 [ 94 ] 
 
 determined a time (at leafV after the deatlis of the 
 parties) after which, the proof of this incapacity 
 or requifition fhoiild be precluded ? It will be 
 readily admitted, that the legidature, by making 
 knozvn and difcovered the ejlates of Papijls, and by 
 paffing annual a6ls for the relief of proteftant pur- 
 c!iafLrs, never could have meant or intended to 
 render the titles of Papifts (if a perfon unable to 
 take land by defcent or purchafe can have title) to 
 their lands dubious and uncertain. And it is clear 
 to demonftration, that every title muft be dubious 
 and uncertain, which depends upon a condition or 
 requifition, the neceflicy of which is created by fta- 
 tute, but of which no legal evidence can be pro- 
 cured or produced. 
 
 j^jup-pojed Cafe before the Repeal of any Part of the 
 A5i of King IVilUam III, 
 
 A conveyancer knows, that by one aft of par- 
 liament a Papift is incapacitated to take land either 
 by defcent or purchafe ; and that by another a<5t, 
 no deed nor vv^ill afFefting land made by a Papift 
 is good, unlefs inrolled vv'ithin fix months. An 
 abftraft of a title is brought to him to perufe on 
 behalf of a purchafcr of a Papift's land. The firft 
 thing to be attended to is, how this fa6l (which is 
 the ftigma guilt or crime of popery) can be 
 proved or eilabliflied ; for upon that, the whole 
 title hinges. The omi.Tion to inrol fome leading; 
 deed is ftated. How iliall a man after his death 
 be proved not to have conformed to the eftablillied 
 church, or to have dilTented from it ? And yec 
 if a perfon educated in or profeffing the popiOi re- 
 lifnon, be incapable of taking by defcent or pur- 
 chafe, (and confequently of tranfmiting, limiting, 
 or felling) ; or if the ad of William be rendered a 
 nullity, t)y the virtual repeal of the 3d Geo. I. or 
 if it lole its clTicacy from irs own abfurdity or in- 
 4 confiftcncy.
 
 [ 95 ] 
 
 confiftency, or from the prefumption and tacit 
 agreement of the. nation collectively and indivi- 
 dually; or if the deed or will of a Papifl (who in 
 fpite of that act may have taken an eltate by de- 
 fcent or purchafe) be without inrolment an abfo- 
 Jute nullity ; how can fuch a title be approved of? 
 And if doubted, how can the ambiguity be done 
 away ? For the conformity or nonconformity with 
 the cftabliflicd church in this cafe creates the ca- 
 pacity or incapacity to take, and the obligation or 
 nonobligation to inrol ; upon which depends the 
 validity or nullity of the deed, and confequently 
 that of the title. 
 
 It is a fubje6t of aftonifhment, notwithftanding 
 the grofs, palpable and pointed contradiAion of 
 thefe acts, how catholic landed property has been 
 preferved in the very few, who ftili profefs the 
 tenets of that belief; and ftili more, how titles 
 to mortgagees and purchafers have been daily 
 made out, deduced through, and from perfons la- 
 bouring under the firft of all defe6ts in a title, viz. 
 an abfolute incapacity to take land either by de- 
 icent or purchafe. 
 
 Unintended Efecis of -repealing a Part of King IViU 
 ii:ms A^. 
 
 We are more to commend the liberality, than 
 admire the wifdom of the parliament, which re- 
 pealed that part of the aft of King William, that 
 difabled a Roman Catholic to take land by defcent 
 or purchafe. In refolving to remove the incapa- 
 city, they had not the precaution to provide againft 
 the inconfiilencies, which muft necelTarily attend 
 a partial alteration of the law. There cannot be 
 a doubt, but that the 3d of George I. is and was 
 intended to be a penal law, and a hardfhip impofed 
 upon the Roman Catholics; for the preamble 
 ftates the rcafon of its pafTing, viz. " in order that 
 
 *^ they
 
 [ 96 ] 
 
 ■" they may be deterred (if poflible) from the like 
 " offences for the future." It is well known, that 
 the inrolment of deeds is attended with an expence 
 for additional ftamps, for entering them on the 
 rolls, and for the fees of office ; another reafon, 
 why fuch deeds and wills by Catholics are inroUed 
 was and is " to render 'public and notcrious the 
 " ejlates of pafijis." Behold now the perverfion 
 of all thefe ends 1 A Protefbant piirchafes land 
 from a Papid, (and («) now a Papift can take by 
 defcent or purchafe, and therefore may fell :) the 
 purchafe deed is to be inrolled ; the expence of a 
 purchafe deed, without a fpecial contrary agree- 
 ment, is always upon the purchafer ; the Proteftant 
 then pays the expences, and the Proteftant's eftate 
 is rendered public and notorious -, and thus what- 
 ever hardfliip, expence or inconveniency, was in- 
 tended to be impofed upon the Roman Catholic, 
 is in fa£t transferred from him to the Proteftant : 
 and at prefent, as a Roman Catholic may legally 
 purchafe, the deed, by which the Proteftant con- 
 veys the land to him, needs not to be inrolled ; 
 and the Catholic may take under fuch a deed, 
 either without any fuch expence or notoriety of 
 title, to which the proteftant purchafer is fubjedt. 
 
 Experimental Effects of the -^d of George I. 
 
 Ill whatever light we view this ftstute, there 
 appear the moft cogent reafons for repealing it. 
 ft has however produced fome eftefts, whicli form 
 an experiment, how an univerfal inrolment aft 
 would tend to fimplifv and improve the law. 
 
 If we may be permitted to drop the ideas of in- 
 congruity and contradiction, which I have before 
 mentioned, refult from the ftatutes firll difabling> 
 then virtually enabling Papifts to take land, and 
 
 (<?) 20 Geo. III. 
 
 laftly
 
 r 97 ] 
 
 jaftly qualifying and admitting their pofltfUon and' 
 
 ieifin i we may argue from their pofleffing, pafling 
 
 and changing their lands from the year 17 17 to 
 
 the prefent day, in the fame manner, as if the i ith 
 
 and i2th of William had in faift never been made; 
 
 In this fuppofition, the tide of a Roman Catholic 
 
 to his land is ever more fure, clear and certain 
 
 from that period, than the title of a Proteftant i 
 
 ^nd the ftatute gives the obvious reafons for it, 
 
 VIZ. the Catholic's eftate is thereby {a) certainly 
 
 known and dijcovered \ and for this reafon have their 
 
 lands in leveral inftances borne a higher price in 
 
 the market, than thofe of their neighbours ; nor 
 
 will this be found unreafonable, when we refiefbj 
 
 that the eftablifliment of a regiftery with all its 
 
 imperfections and inconveniences, certainly raifes 
 
 the value of land in the counties of York and 
 
 Middlefex above the rate, at which land of a fimi- 
 
 lar quality, will fell at in a neighbouring county^ 
 
 and fecure a preference in landed fecurities given 
 
 for m.oney in thofe counties over others. The 
 
 truth of this daily appears from the advertifemqnt^ 
 
 for fales and loans in the newfpapers. 
 
 The neceffary inference from thefe premifes is^ 
 that by how much more clear the title of a land- 
 owner is to his eftate, of fo much more value is it 
 to a purchafer: and by how much more readily he 
 can raife money upon it, of fo much more value is 
 it to himfelf. The prices of land and of the funds 
 mud always keep pace with each other, and by 
 them the profperity and credit of the nation may 
 be always afccrtained. The difabling part of the 
 nth and 12th of William is now exprefsly re- 
 pealed by the coth of his prefent Majeily -, but tifl 
 that had been done, it was whimfically unaccount- 
 able to refled, that one ftatute, enafted as a penal 
 
 {a) Preamble of iRGeo. I. L z. 
 
 ^ law
 
 [ 93 1 
 
 law againfl the Ronnan Catholics, fhould have been 
 in praftice and in fa6l wholly difregarded, and ano- 
 ther moll ftriflly obfervf^d. For (cvj, if any, per- 
 fons ever thought of giving force to the aft of 
 William, or of negleding the requifition of ^^ 
 of George I. {a). 
 
 The Decifions of the Courts upon the Aui of King 
 William. 
 
 Having faid fo much of the inconfiftency and 
 repugnancy of the two a6i:s of Will. III. and, Geo I. 
 it behoves me to prove my pofitions, by fnewing 
 the decifions of the courts upon them. I do it 
 with that fubmifTion and deference, which is due to 
 the authority of our fupremic courts: it m.uft be 
 remembered at the fame time, that thefe decifions 
 are, upon that part of an aft, which is now repeal- 
 ed ; and I quote them, with a view and intention 
 of proving, that another aft ought to be repealed. 
 
 He, who runs, may read the intent and meaning 
 of the 4th feftion of iith and i2th Will. III. c. 4. 
 " And be it alfo further enafted, by the authority 
 " aforefaid, that from and after the nine and twen- 
 ** tieth day of September, which fhall be in the year 
 *' of our Lord one thoufand feven hundred, if any 
 *^ perfon educated in the popifh religion, or pro- 
 *^ felTing the fame, fliail not, within fix months, af- 
 *^ ter he or fhe fhall attain the age of eighteen years, 
 *^ take the oadis of allegiance and fupremacy, and 
 " alfo fubfcribe the declaration fet down and ex- 
 ** prelTed in an aft of parliament made in the 
 " thirtieth year of the reign of the late King 
 
 [a) I find this obfervation fanflioned by Bifhop Burnet, in 
 the Hiftory of his own Time, Vol. II. p. 229 ; where, after let- 
 ting forth the inconfiftent fevcrity of this ad, he concludes in 
 thefc words, *' Ho this ail was not follo-vjid nor executed in any 
 
 '' Charles
 
 [ 99 ] 
 
 " Charles II. intituled, Jn a5i f(xr the more effeclual 
 ** prejerving the kings ferjm and govermneni, by 
 *' dijahlhig Papijis from Jitting in either hmje of 
 *^ parliament, to be by him or her made, repeated 
 " and fubfcribed in the courts of Cha^icery or 
 " King's Bench, or quarter fefllons of the county, 
 " where fuLh pcrfon fhall refide, every fuch perfon 
 " fhall, in refpect of him or hcrfelf only, and not 
 " to or in refpeft of any of his or her heirs or po- 
 " fterity, be difabled and m^.de incapable to inhe- 
 " rit, or take by defcent, d'^vife or limitation, in 
 " pofleflion, reverfion or remainder, any lands, te- 
 " nements or hereditament', within the kingdom 
 " of Fngland, dominion of Wales, or town of Ber- 
 " wick upon Tweed : And thit during the life of 
 " fuch pcrfon, or until he or fhe do take the faid 
 *' oaths, and make, repeat, and fubfcribe the faid 
 " declaration in manner as aforefaid, ih^. next of 
 " his or her kindred, which fhall be a Prcteftant, 
 " Ihall have and enjoy the faid lands, tenements 
 *' and hereditaments, without being accountable 
 ** for the profits by him or her received during 
 " fuch enjoyment thereof, as aforefaid: but in cafe 
 " of any wilful wafte committed on the faid lands, 
 *^ tenements or hereditaments, by the perfon fo 
 *' having or enjoying the fame, or any other by 
 " his or her licence or authority, the party difabled, 
 " his or her executors and adminiftrators, fhall 
 " and may recover treble damages for the fame, 
 *' againft the perfon committing fuch wafte, his or 
 " her executors or adminiftrators, by aflion of debt 
 " in any of his Majcft 's courts of record at Weft- 
 " minfter j and that from and after the tenth day 
 " of April, which fhall be in the year of our Lord 
 one thoufand feven hundred, every Papift or 
 prrfon making profeiTion of the popilh religion 
 fliall be difabled, and is hereby made incapable 
 to purchafe either in his or her own name, or in 
 
 H 2 " the
 
 [ 100 ] 
 
 *^ the name of any other perfon or perfons to his 
 " or her ufe, or in truft for him or her, any manors, 
 *' lands, profits out of lands, tenements, rents, 
 *' terms or hereditaments, within the kingdom of 
 " England, dominion of Wales, and town of Ber- 
 " wick upon Tweed; and that all and fingular 
 " eftates, terms, and any other interefts or profits 
 "^ whatfoever out of lands, from and after the faid 
 " tenth day of April, to be made, fuffered or done 
 " to or for the ufe or behoof of any fuch perfon 
 '' or perfons, or upon any truft or confidence, me- 
 " diately or immediately, to or for the benefit or 
 " relief of any fuch perfon or perfons, Ihall be ut- 
 " terly void and of none efFeft, to all intents, con^ 
 " flruftions and purpofes whatfoever." 
 
 In confirmation of the obvious meaning and in- 
 'tent of this ftatute, which indubitably was to hin- 
 der Roman Catholics from taking or poffeffing 
 landed property, it has been folemnly determined 
 j^a), that " the perfons who were eighteen years 
 old at the time of making the ftatute of WiU 
 liam III. are within the intent and meaning, 
 though out of the letter of the aft ; for it is re- 
 markable, that this claufe extends only to the cafe, 
 where the papift is under the age of eighteen 
 years at the time, that the hnds come to him 5 
 but where the papift" is above eighteen years of 
 age when the land comes to him, lie is utterly 
 difabled to take, and the eftate is void " (^). 
 Devife to a papift, is a purchafe within this 
 a6t " (c): and it is fettled, " that either a de- 
 vife or Settlement to a perfon profefting the po- 
 pifli religion of above eighteen years and fix 
 months of age, is void, and the perfon not capa-, 
 
 faj 9 Mod. 3;.Tnn. 9. G. Carrick v. Errington. 
 (^) Wm. Rep. 254.. Trill. 1717. Vane v. Fletcher. 
 (<) 9 Mod. 170. Roper v. RatclifFc, in the Houfe cf Lords. 
 
 « ble
 
 # ' [ lOI ] 
 
 " ble of taking: the acl intending utterly to difable 
 " th? papift of that age to take any new acqiii- 
 " fition, or what was not his ancient inheritance" [a). 
 The ftatute extends to trufts as well as legal eftates, 
 and to a term of years, or even for fix months, as 
 well as to a freehold or an inheritance, and " the 
 " truft of a term is as much within the a6l as the 
 " legal intereft of a term (<^)." 
 
 It appears, that thef^i decifions upon the incapa- 
 city of a papift acquiring any land by purchafe 
 either under a deed or will, arc ftriclly confonant 
 with the words, fpirit and meaning of the ad : but 
 what judgmient are we to form of the decifions 
 made upon the other words of the aft, l?e difahkd 
 and made incapable to inherit, or take by dejcent, de- 
 vije or li'mitation in pojfejfiony reverfion or remainder 
 any lands, Sec. ? The fingularity of thefe decifions 
 will fcarcely be credited. 
 
 To inherit or take by defcent is certainly to take 
 by operation of law, and not by the aft of the 
 party (e), '' Lord Dover being pofi^efi^ed of a 
 " long term for years, made his will, and his lady, 
 " who was a papift, executrix thereof And it was 
 ^' refolved by LorI Chancellor, that notwithftand- 
 " ing the difabling aft of the nth and 12th of 
 *.^ Will. III. the term vefted abfolutely in her^ and 
 " this was not a purchafe within that aft. And 
 " he faid, that a papift may be a tenant in dower 
 " or by the curtefy; becaufe, in all thefe cafes, it 
 " is by operation of lazu, and not by the all of the 
 " party, that the eftate comes to him." It re- 
 quires fome (light knowledge of the law to per- 
 ceive the diftinftion between an executor taking a 
 chattel intereft (fuch as is a term of years) as exe- 
 cutor, and a perfon's taking the fame intereft under 
 
 {a) 2 Wm. Rep. 4, 5. {h) 9 Mod. 192. 
 
 \c) 3 New Ab. 799. cafe of Lord Dover's Will, and Vi'n. 
 tjitle Papift. 
 
 H 3 a de*
 
 [ I02 ] 
 
 a devife or deed. Whatever a man inherits or 
 takes by defccit, m'jfi: be a freehold and inheri- 
 tance, not a chattel intireft or term for y.^ars. In 
 a ftatute fo highly penal, the Court very humanely 
 and liberally in this inilance, (if I may be allowed 
 the exprciTiwn) invented this evafion of the fcve- 
 rity cf the law : but why it flionld not adhere to t!ie 
 fpirit of the law, and go beyop.d its ilrifb letter, 
 in this inftance, as well as it did in declaring that 
 perfons of eighteen years and a half old at the 
 time of the makino- of the flatute, v/ere within the 
 intent and meaning, thori^h out of the letter of the 
 law, I cannot command ingenuity enough to ac- 
 count for. Common kpSc tells us, that the intent 
 and meaning of the aft was certainly to prevent a 
 papifb from acquiring any infeereft even for one 
 year in land : and fliall it be ferioufly prefumed, 
 that a proteftanr, polTeiTed of a leafehold eflate 
 worth j{. 50,000, fhall bylaw be enabled to leave 
 that to a papifl, by making him executor, which 
 he cannot give or leave him by deed or fpecific de- 
 vife? When a particular obje6t is intended to be 
 accompli fhed by the legiflature, it is derog:itory 
 from its dignity, that the courts of law fiiouid in- 
 vent and countenance fuch fubterfuges and evafions 
 of its intended effc6ls. The virtual repeal of the 
 I ith and i 2di of Will. III. by the 3d Geo. I. and 
 its exprefs repeal by the 20th of his prefent Ma- 
 jefty juRify this language. 
 
 The reafon a]ledi>ed for this determination, viz. 
 that ii is hy operation of lawy and not by any ati 
 Of the party i that the eftate ccmes to him, every 
 body rnuft perceive, applies moil: emphatically to 
 every defcent call by law, and would therefore do 
 away the firft and chief part of this very flatute, 
 which ili fables a papifl" to inherit or take by defcent,^ 
 devife or limitation y for it is by operation of law, 
 ;inil not by any a6t of the party, that an eftate
 
 [ I07 1 
 
 comes to an heir, who takcb by dcfcent, to a de- 
 vifee, who takes under a will, and to a piirchafer 
 who tak''s by limitation under a deed. 
 
 But the fub; quent decifions upon thefe words 
 of the acl, he dijchled and made incapable to take by 
 dejccnt^ devife cr limtation^ are {till more wonderful, 
 than tnofe, which we have already quoted (<^). 
 " Viie heir at lav/, though a Papift, is capable to 
 *' take the inheritance ; for it is in him, though the 
 " nest Protevtant of kin hath the pernancy of the 
 " profits, till the other becomes a PruLcftant ; nor 
 *^ fh.-.ll the next remainder-man take immediately, 
 " till after the death of the Papiih" Be it ob- 
 ferved, how inconfillent and contradiftory are the 
 foregoing and the fubfequent determinations {b), 
 ** Per Cur. 9 Mod. 34, Trin. 9. G. in the cafe of 
 *^ Carrick v. Errington cited there, as fettled in the 
 ** cafe of the Duchefs of Hamilton;,'' Lord :Chan- 
 cellor King held, " That the remainder mould take 
 *^ efFetl prefently, in the fame manner, as if a re- 
 *' mainder were lim.ited to a monk for life, or to 
 " one that refufes to take, or if fuch remainder- 
 " man had been dead, and no fuch limitation had 
 " been." 
 
 I will end my obfervations upon this fiatute, and 
 the decifions upon it, with the following repetition : 
 ^hat the fiatute extends to trufis as luell as legal 
 efiates. Now obferve with attonifhment how the 
 courts judge of this matter (^). Per Pratt, Ch. 
 Jufiice, "If Papifts take conveyances to their 
 " own truilees, and if it be undifcovered, all is 
 " well ; or if it be difcovered, the conveyance, it 
 *' is true, is void by the a6tj but then it revefbs 
 " again in the firil owner or truflees." I cannot 
 
 {a) 9 Mod. 34 Trin. 9 Geo. Carrick v. Errington, and Roper 
 and Ratcliff, ubi fupra. 
 
 (/>) 2 Wm. Rep, 362. Trin. 1726, Carrick v. Errington. 
 {() 9 Med. 194. Roper v. Ratcliif. 
 
 H 4 difcover
 
 [ 104 ] 
 
 difcover any words in the aft, which cither impli- 
 citly or explicitly import, that tlie difability of a 
 Papid taking a truft eftate, depends upon the difr- 
 covery of its being a popifli truft. The non-dtfco-' 
 njery of the cejluy que truft, certainly never can give 
 validity to a conveyance, which was void ab initio ; 
 nor can there be a revefting, without a divelling: 
 and nothing can divefc by a conveyance, but what 
 thercbv moves out of the grantor : but here the 
 conveyance was void, and therefore no efFe£l cant 
 be given to it; and confequently nothing could 
 thereby have moved out of the grantor. Again (^), 
 " the a6l of nth and 12th Will. III. is a bare 
 "^ difability ; it creates only a difability, but makes 
 *' no forfeiture ; it prevents a veiling, but divefts 
 f' nothing that is vcfted." 
 
 Another curious doftrine has been eftablifhed by 
 the courts, which appears upon reflecElion equally 
 incompatible with the ftatute, which incapacitates 
 a papift to inherit or take land by defcenty devije or 
 limitation. 
 
 (b) *' The word furchafe in this ftatute is only 
 '^ a modification of the eftate, and iliall not be 
 *' taken in the full extent of the word ; for thofe 
 " purchafcs are intended only by the ftatute, by 
 '' which papifts enlarge and extend their landed 
 " intereft, and not where by deeds of fettlement, 
 *^ the ancient family eftate is new modelled, with- 
 ^^ out making any new acquifition; fo that even 
 *' at this day, a purc'iafe by Umitaticn in a fettle- 
 ^' ment, or by dcvife to a papift under the age of 
 '' eighteen years, is good, fo as fuch papift, within 
 " fix months after he comes to that age, conform 
 ** and take the oaths, &c, otherwife he lofes the 
 f' pernancy of the proiits during his life only." 
 
 (/?) 9 Mod. 199. 200. 
 
 \b) ^ iVjoJ. j»bo. Hil. 5 G. I. Earl of Dcrwentwater's cafe.
 
 [ 105 ] 
 
 The inconPiflencies of this a61: and of the decl- 
 fiorrs upon ir, will appear Icfs firange, v/hen we 
 attend to the account which Bifhop Burnet gives 
 of its pafTing. (<^) " Thofe who brought tliis into 
 " the Houfe of Commons, hoped, that the court 
 " would have oppofed it ; but the court prom.oted 
 *^ the bill ; fo when the party faw their miftake, 
 " they feemed wilhng to let the bill fall; and when 
 *' that could not be done, they clogged it with 
 *^ many fevere and fome unreafonable claufes, hop- 
 " ing that the lords would not pafs the aft ; and 
 *^ it was faid, that if the lords Ihould make the 
 " leall alteration in it, they in the Houfe of Com- 
 *^ mons, who had ftt it on, were refolved to let it 
 " lie on their table, when it fliould be fent back to 
 *^ them. Many lords, who fecretly favoured pa- 
 " pifts, on the Jacobite account, did for this very 
 " reafon move for feveral alterations; fome of 
 " thefe importing a greater feverity ; but the zeal 
 " againft popery was fuch in that houfe, that the 
 '^ bill paffed without any amendment, and it had 
 *' the royal alTent." 
 
 Of InroUing Deeds hy a Judge* s Fiat. 
 
 Before I leave this fubjed, I fliall Hightly touch 
 upon a point of praftice, which has attvnded the 
 execution of this a6l of the 3d George I. It has 
 been the general ufage to inrol ail deeds under 
 this aft, not by acknowledgment of the execution 
 by any of the parties to the deed, but by what is 
 called a judge's fiat; {a) which in general is a 
 
 {^) Hiilory of his own Time, 2d vol. p. 229. 
 
 (/■) The Fiat is nothing more, than the fignature of a judge 
 to the following fuperfcription on the face of the deed. Lef 
 this deed be air oiled in the court nf fv.rfuant to ike Jia- 
 
 'futejlbis day of 178 A. B. ' 
 
 fliort
 
 [ io6 ] 
 
 iliort order or warrant of fome judge, for making 
 out and alJowing an^ certain proccfs, &;c. 
 
 I have not been able ro trace in the books the 
 fainted idea of a deed being inroUed under a judge's 
 fiat ; fuch however has been the general praftice, 
 which muft appear truly lurprifrng^, v/hen wc throw 
 back our rccolleftion, to what is faid (in page 79 
 viz.) that the necejfity of an ackywzvledgment was 
 owin? to the common law, which as it would not 
 admit of the voluntary inrolnnent of a deed, even 
 for fafe cuftody, without acknowledgment, much 
 Icfs v/ould it permit a deed to be inrolled by virtue 
 of a flatute v.'ithout acknowledgment, or fomething 
 equivalent unto it. Ir cannot be queftioned whe- 
 ther lefs formality and authority be required for the 
 voluntary inrolment of a deed for fafe cuftody, or 
 for the requifitc inrolment of a deed under a com- 
 puifory ftatute. Upon what ground of authority 
 then did the judges introduce and continue to iffue 
 tXit^K: fiats for inrolmrnt ? Ir would be too hazard- 
 ous to aiferr., that out of many thoufand deeds in- 
 rolled under /i3/j, not one is validly inrojled. 
 
 We have k('\^i that th'. acknowledgment of a deed 
 to be inrolled under the ftatute of Henry VIII. is 
 previoufly r^quifite for its inrolment, not by virtue 
 of that fracuti. , but of the common law, for the aft 
 fays nodiing of acknowledgment} ; lb the ftatute 
 of George I. is equally fiient as to the mode of 
 inrolment. Either then a judge hath pov\^er to 
 iffue a warrant Tor inrolmerit b} fiat^ or he has not. 
 If he hath power, it muft be either by the prero- ' 
 gativc of his office, or by written law. There is no 
 mention made in any ftatute, which hath come 
 under my cognizance, of a judge's /<^/ for this pur- 
 pofe. If it be by common law or prerogative of 
 office, it is paramount to the ftatute of Henry VIII. 
 but before that ftatute, there was not known any 
 diftindion of inrolled deeds j that ftatute required 
 
 the
 
 i 107 ] 
 
 the inroiment of a particular ipecies of deed ; but 
 the mode of inrolling that particular fpccics, did 
 not vary from the mode of inrolling any other 
 fpecies of deed. The a6l diredled no variation in 
 this mode. The fame r^afoning holds to tlii oiv^- 
 fent day. The common law cannot be altered, 
 but by an exprefs ftatute ; the judge's prtrogarive 
 or power not having been extended or curtiiled, 
 as to any particular fpecies of de^rd, it .3 one and 
 the iamc over all. Upon v/hat ground then, do 
 they aflume a power co ifflie/'-'j for inrolling; deeds 
 of Roman Catholics under liie ftatute of Gcoro-e 
 I. which they difavow and difclaim for inrolling 
 bargains and iaies under the ftatute of H^nry VI 11. 
 If this power arifes by the common law, and the 
 conimon law has never been altered by itiiutej the 
 judges certainly have e<^ual power in both cafes. 
 If they can ifllie a fat for inrolling a deed in one, 
 they can in every inftance. For what is the inroi- 
 ment of a deed ? It is the a6l of a deed becoming 
 either recorded in court, or a record of the court, 
 according to what has been faid above; when it 
 has been entered or ingrofled upon a roil or fcroll 
 of parchment, fuch ingroffed copy fhall not be re- 
 corded in the court, but by fome warrant of a judge 
 of the court, in which it is intended to be inrolled. 
 This v/arrant is faid in the books to be the ac- 
 knowledgment of the deed, to Vv^hich the judge figns 
 his name : [a) but as the deed cannot be entered 
 or recorded in the court without a judge's name, 
 fo I muft prefume, that every deed, to which a 
 judge has figned his name by way of diredlion, 
 order, warrant, authority, confent or knowledge for 
 
 {a) The form of an acknowledgment is — T/jo' execution of 
 this deed loas acknoKvleagcd by A. B. a party thereto before 
 fne, and luas by him ddfred to be inrolled in the court of ' 
 
 A. B. 
 
 its
 
 [ io8 ] 
 
 its inrolment, muft after that, neccflarily be en- 
 tered or admitted as a record, by the officers of the 
 court. They are bound by the judge's orders, 
 which are to them mandatory and compulfive; 
 the party, which is bound to procure the deed to 
 be inroiied, can do no more, than to procure from a 
 judo-e a direction, warrant, authority or order to 
 the ofHcer, to inrol the deed : the nature and 
 mode of this direction, warrant, authority or order, 
 muft be immaterial to the ofHcer and party ; the 
 latter is bound to comply with the requifition of 
 the fbatute, which obliges him to inrol the deed, 
 and the former will not, as he ought not, record 
 any deed v/ithout the fanftion of a judge's name j 
 and wherever a judge's direction, warrant, autho- 
 rity or order appears upon a deed, the officer can- 
 not refufe to record it, unlefs for a reafon para- 
 mount to the authority of a judge, viz. for a par- 
 liamentary reafon ; iuch for inflance as is the want 
 of a proper ftamp. In fuch cafe, although a deed 
 be acknowledged or hath a jiat^ yet if it be not 
 properly ftampt for inrolment, the officer will re- 
 fufe to inrol it ; yet if he Ihould have recorded it, 
 1 know of no provifion in any a6l relative to the 
 iubjed, which invalidates the deed, after it hath 
 been once recorded, or that makes the deficiency 
 of ftamps prevent its becoming a record of the 
 court. For ftamps are inripofed by afts of par- 
 liament i nothing therefore relative thereunto can 
 alter the common law, but by exprefs words, {^d) 
 " Statutes are not prefumed to make any alteration 
 'f in the common law, further or otherwifc, than 
 <^ the ad does exprcfsly declare." The nature of 
 the deed remains, as it was at common law, which 
 was paramount and independant of the duty upon 
 ilamps, 
 
 {a) II Mod. 150. 
 
 Upon
 
 [ 109 ] 
 
 Upon full and mature confideration of this fub- 
 je6l, I cannot help concluding my opinion, that if 
 a judge do fign 2. fiat for the inrolment of a bargain 
 and (ale, which is required to be inrolled by the 
 acl of Henry VIII. and it be ingrofied upon pro- 
 per (lamps ; and after that, it be recorded in the 
 court, it hath anfwered the intent of the ftatute, 
 which requires it to be inrolled. When I fay thus 
 much, I am alfo of opinion that in no cafe a judge- 
 fhould ever fign a fiat for inrolment, without the 
 acknowledgment of that party to the deed, whofe 
 execution of it gives it efficacy and effedl. C^) 
 In the cafe o'i Abjolom and Anderton^ the acknow- 
 ledgment was by the bargainors, viz. the mafters 
 and chaplains of the Savoy, before a mafter in 
 Chancery, who went dov/n for the purpofc to their 
 chapter houfe : fo that if the parties had been 
 common perfons, every thing was perfeftly right ; 
 but it being the cafe of a body corporate, who can- 
 not do folem.n a6ls by parole, nor otherwife than 
 under their com.mon feal ; a queflion arofe upon 
 the validity of the inrolment. And it was agreed, 
 that the indenture being once inrolled-, it "duas not ma- 
 terial by -what means ^ but was good being done. 
 
 When it is confidered, that the copy of any in- 
 rolment may be read in evidence, and that a deed 
 ought not to be inrolled without the acknowledg- 
 ment of a party to it, and that an acknowledgment 
 binds the acknowledging party, and all claiming 
 under him ; when we alfo refledt that an acknow- 
 ledgment of a deed, is but an avowal by the party, 
 that the deed to be inrolled is his own aift and deed, 
 and that it is his wiih and defire, that it be rendered 
 notorious and perpetuated j I flatter m.yfelf, that it 
 will be the conclufion of all my readers, that the 
 ioventions and devifes of introducing nominal par- 
 
 {a) 3 Lev. 84. 
 
 ties
 
 [ "O ] 
 
 ties to acknowledge deeds, and figning fiats for 
 their inrolmenr, are but evafions or perverfions of 
 the real intent and purpofe of inrolling deeds j and 
 that conft^quently therefore, one fixt, confiftent and 
 cfFeftual mode of inrolling deeds by the acknow- 
 ledgment of the granting or operating party to the 
 deed, ought to be eftabiifned, as it is provided 
 for in the draft of the bill annexed hereunto. 
 
 Nothing can fo folidly confirm the do6trine I 
 have attempted to eftablifh, as to confider the 
 effefts produced by the inrolment. For it hath 
 been holden, {a) that until the deed be inroUed, 
 the efbate and freehold is in the bargainor, and no- 
 thing pafies from him. So in Billinghams cafe ; 
 " bargainee before inrolment, bargains and felJs to 
 '• another, and afterwards the firft deed is inrolled, 
 " and after that the fccond : yet held, that nothing 
 " palled, for he had not any eftate in him at the 
 *' time of the bargain and fale to give to a ftran- 
 " ger." As therefore the transfer of the land is the 
 a6l of the bargainor, and the acknowledgment and 
 inrolment of the indenture is but the continuation 
 and completion of that a6l of transfer, it certainly 
 ought ro be done by the bar'gainor. And for this 
 obvious reafon was it faid by Dyer, that a bargainor 
 is eftopped by the inrolment from pleading either 
 nonage or durefs, or any matter, which difproves 
 the deed and defiroys it. 
 
 Of the Inrohnent of Wills. 
 
 Whatever objcftions might be raifed againfl in- 
 rolling every deed aftefting land ; yet confident I 
 am, that the reafons, which I am about to adduce, 
 will prove the indifpenfible ncccfTity of inrolling all 
 wills and devifes of land, in order to render them 
 
 {a) Pvloore 42. 
 
 ■j- notorious.
 
 [ "I ] 
 
 notorious, public, perpetual and authentic. It 
 is no fmall fatisfaction to find \vy opinion fiipport- 
 ed by To great a man as Sir Matthew Hal., (^a) 
 'Mt were well, if fome greater foiemnity were re- 
 " quired by law in wills, whereby lands are de- 
 " vifed : for ever fince the ftatute of 34 Hen. 8. 
 " more queftions, not only of law, touching the 
 " conftru61:ions of wills, but alfo of fafts, arife, 
 " than in any five general titles or concerns of lands 
 " befides." To fee and perfeftly comprehend the 
 law, nothing is fo efFeftual, as to trace it to its 
 origin : to acquire an intuitive knowledge of an 
 effe(5l:, we fliould not be ignorant of the caufe. 
 
 The power, which individuals in this country 
 have been permitted to enjoy, of difpofmg of their 
 pofieffions even after death, feems a l-ways' to have 
 extended without interruption to perlbnal property : 
 fuch as is money, goods, chattels, &c. but as to 
 land, although the like power exifted, and was cxer- 
 cifed by our Saxon anceftors, yet from the Norman 
 conquell, to the days of Henry VIII. this power 
 had ceafed or run into defuetude, and exifted no 
 longer, but by private cuftom in fome manors, 
 boroughs and corporations. 
 
 The inconveniency of lands not being devifeable 
 was at lengrh felt in a cornmercial country; and by 
 the 3 2d Hen. VIII. c. i. every one was enabled to 
 devife all his lands holden in foccage, and two third 
 parts of his lands holden by knighrs fervice : and 
 by 1 2 Car. 11. c. 3c. lee. i. all tenures are turned 
 into free and common ioccage ; lb that at prefent 
 all lands whatfocver are devifeable by llatute. 
 
 Notwithftandingr this a6l of Henrv VII i. enablino; 
 individuals to devife their lands in the manner be- 
 fore mentioned ; we find that in the days of Car. II. 
 
 (a) The before-mentioned pamphlet upon a general regiflry. 
 
 when
 
 when after the then late revolution and trouble's, the 
 nation began to enjoy peace and quiet, and com- 
 manded fome cool leifure to look forwards towards 
 quieting and fettling their titles to their pofleflionSi 
 (for at that time almoft every man flood in abfolute 
 need of it) ; they palfed, an a^ for the -prevention of 
 frauds and perjuriesy commonly called the ftatute 
 of frauds : (^) and amongft other remedies admi-' 
 niftered by that a6l, was that of adding " greater 
 " foiemnity and notoriety to the publication of all 
 " devifes and bequefts of any lands or tenements, 
 *' devifeable either by force of the ilatute of wills, 
 *^ or by this ftatute, or by force of the cuftom of 
 *^ Kent or the cuftom of any borough or any other 
 " particular cuftom, which (from the 24th June 
 *^ 1676) it was enabled, fhould be in writing, 
 *' and figned by the party fo devifing the fame, or 
 *' by fome other perfon in hir, prefence, or by his 
 *' exprefs direflions, and ftiould be attefted and 
 " fubfcribed in the prefence of, and by his exprefs 
 " diredlion, and fhould be attefted and fubfcribed 
 " in the prefence of the faid devifor by three or 
 *^ four credible witnefles, or elfe they fhould be 
 " utterly void and of none effe6l." And the aft 
 provided alfo for the fame degree of notoriety and 
 publicity in cancelling, altering and revoking fuch 
 devifes and bequefts; and {ot ^^ amendment of the 
 law in that particular ^ enafted ; that from thence-' 
 forth, " any eftate pour auter vie fhould be devife- 
 *^ able by a will in writing, figned by the party fo 
 " devifing the fame, or by fome other perfon in his 
 *' prefence, and by his exprefs directions attefted 
 " and fubfcribed in the- prefence of the devifor, by 
 *' three or nu^re witnefles," &c. 
 
 Vv' hoevtr rcfleds one moment upon thefe par- 
 
 («) 29 Car. 2. c. 3. 
 
 liamentary
 
 [ "3 ] 
 
 llamentary provifions for the additional folemnity 
 and publicity of landed devifes, more than in w'ills 
 of perfonal property, cannot hefitate to conclude, 
 that there is more reafon alfo for fuch wills being 
 perpetuated and preferved open to infpeftion, than 
 the wills of perfonal property. A will moreover, 
 by which land is devifed, forms the moft material 
 part of the title to the land deviled ; and in every 
 alienation or charge or fettlement of it, it will ever 
 be proper to trace and prove the title, at leaft for 
 fixty years back. Nothing of this, is applicable to 
 the bequeft of perfonal goods and chattels. 
 
 Gf the Spiritual or Ecclejiaftical Courts. 
 
 It is foreign from my purpofe to trace and ac- 
 count for the introduftion of any legal jurifditftioa 
 or tribunal into this country, which is not govern- 
 ed and regulated by the municipal law of the land. 
 For in fidt, the civil law (by which is meant the 
 Roman or Jullinian code) is as foreign and diftindt 
 from the municipal law of this country, as the Tal- 
 mud or the Coran. 
 
 At a time, when the clergy had monopolized all 
 literature and knowledge, it was an eafy matter for 
 them to extend that fuperiority, together with what 
 their fpiritual character and fundlions gave them, 
 over generations more docile in faith and pliant 
 to credulity, than the prefent, to a dominion, fway 
 or influence over the temporalties of their flocks. 
 From the right, which the ordinaries acquired to 
 diftribute and apply the perfonal goods of intellates 
 pro Jalute animarum defunEiorum according to the 
 doftrine of thofe days, that the perfons, who had 
 the charge and care of men's fouls in their life- 
 time, were the moft proper to fee to the applica- 
 tion of their property after death, many abufes 
 gradually crept into this authority and power. 
 
 I Such
 
 [ IH ] 
 
 Such ever has been, and fuch ever will be the 
 cafe, where the fpiritual povv^er alTumes, or even 
 receives any temporal iurirdi6lion. For if any 
 fpiritual authority does exift, it is in its nature ef- 
 fentially diftin6l from and independant of all hu- 
 man inflitution : and from the inftant, that it raifes 
 itfelf upon any other bafis, than that of the divine 
 gift or mifTion, it perverts its origin and inflitu- 
 tion, and becomes of courfe much more liable, 
 from an heterogeneous principle, to all forts of 
 abufes, than if it were a mere temporal power or 
 jurifdiftion. 
 
 How the Right of Adm'inijiratton -probably came to 
 the Ordinary. 
 
 It is no uncommon thing at the clofe of life, 
 that a perfon repenting of his fins, may from a jud 
 principle of reilitution or reparatiota, wifli to have 
 a certain fum of money applied in a fecret manner, 
 in order to avoid fcandal or difgrace ; and in thoftf. 
 countries, where auricular confefTion is in ufe (as 
 it then was in England) fuch applications are ufu- 
 ally left to be made by the fpiritual diredor of the 
 penitent, wlio may probably have fuggcfted the 
 propriety, or infilled upon the nccefilty of them. It 
 is alfo frequent (amongfl thofe, who hold, that there 
 is in the next life a place of temporary punifliment, 
 where we are purified from our flighter failings, 
 which have not deferved the eternal torments of 
 hell, and that the prayers and intercefTions of the 
 living are an inducement to the mercy of Almighty 
 God, to alleviate and abbreviate their pains and 
 punilliments) to make donations to particular 
 churches and particular perfons, in order that cer- 
 tain facrifices and prayers may be offered up to Al- 
 mighty God with this view, for the repofe of their 
 
 fouls :
 
 t "5 ] 
 
 fouls t as we read in the books of the Macca- 
 bees (a). " He making a gathering fent 1 2000 
 " drachms of filver to Jerufalem, to have facrifice 
 *' offered for the fins of the dead, well and right- 
 " eoufly thinking of the refurreftion : for unlefs 
 " he hoped, that they who were flain, fhould rife 
 *^ again, it would feem fuperfluous and vain to 
 " pray for the dead. It is therefore a holy and 
 " healthful cogitation to pray for the dead, that 
 " they may be loofcd from their fins." Thus as in 
 thofe days, (viz. 200 years before the coming of 
 ChrJfl) the money, which was thought proper to 
 be applied to this purpofe, was fent to the priefts 
 of the temple, fo probably was it, in latter times, 
 depofited in like manner with the prieits of the new 
 law : and fo by degrees, not only that part of the 
 property of the dcceafed, which was devoted to 
 thefe purpofes, was often veiled in the ordinary, 
 but the whole perional eftate became veiled in him, 
 with an expreffed or implied injun<5lion and obliga- 
 tion of applying the refidue or remainder (if anv) 
 unto or amongft lae relations of the deceafed. 
 This appears to me to have been the original fpirit 
 and intention of the ordinary's power in this re- 
 fpe(fl. But a mixture of fpiritual and temporal 
 power will never blend properly together. 
 
 It is very evident, that abufes of this right and 
 power crept in at a very early period : for in the 
 year 1285 (^) the legiflature takes notice, that 
 " whereas after the death^of a perfon dying in- 
 " teftate and in debt to feveral, the goods come to 
 " the ordinary to be difpojed (behold here the ufage, 
 
 {ci) 2 Mac. XII. 43. Although thefe books are holden to 
 
 be apocrypha, yet they are read in the church of England 
 
 for example of Ife and ivfruSlioti of manners (Art. IV.) which 
 
 would not be, if they did not contain true and authentic 
 
 hillory. 
 
 [b) ii Ed. I. c. 19. 
 
 I 2 into
 
 [ "6 ] 
 
 into which the abufe had crept, and then follows 
 the remedy) " the ordinary from henceforth fhall 
 " be bound to anfvver the debts, as far forth as the 
 " goods of the dead will extend, in the fame man- 
 " ner as his executors would have been bounden, 
 " if he had made a will." 
 
 '^he Spiritual Courts had not the original Cognizance 
 
 of mils. 
 
 By the ancient Britifh laws, the probate and iu- 
 rifdiclion of wills did originally (as it always ought) 
 belong to the temporal courts : for we find in 
 Glanvill, the earlieft writer and moft authentic 
 quoter of the common law (^), that there is a ix)rit, 
 which lies at common law, to recover a legacy. 
 And in the regifter there appears to be a writ de 
 rationahili parte. It was about the time of Richard 
 the 2>^y that wills were proved in the fpiritual 
 courts {b). In all other nations they are proved in 
 the temporal courts. And in many places in Eng- 
 land, even at this day, the lords of manors have 
 the probate of wills (f) : and Tremayle, who was 
 then king's ferjeant, told the Court, that he was 
 fleward of feveral manors in his county, where 
 both freehold and copyhold tenants proved their 
 wills before him in the courts baron ; which par- 
 ticular cufloms were (as before obferved) a reten- 
 tion or rclid of the ancient general law or ufage. 
 I^inwood, who was dean of the Arches, and wrote 
 about the time of Hen. VI. doth confefs, that the 
 probate of wills did belong to the ordinaries, non. 
 de commitni jure, but by cuftom. And archbifliop 
 Parker pubiiflied a book in 1573, in which he fays 
 
 («) Lib. 6. c. 6, 7. 
 {b) Fitz. Tcibm. 4. 
 
 Ic) NcHou lux TclUmentaria, p. 462. Henfloe^s cafe, 
 i^, Kcp. 3i>. 
 
 mc
 
 [ "7 ] 
 
 ner. ullam hahehant epi/copi authoritate^n, pvcfter earn 
 quam a rege acceptam refcrehant ; tejlamenla pro- 
 bandi authoritatem non hahebanty nee adminifirationis 
 poteflatem cuique delegare non pot er ant (^a). 
 
 Anciently (/-), upon the death of an inteftate, 
 the Ton was intitled to have the heriots due to him, 
 which were appointed by law, that by the lord's 
 advice or judgment the intejlate' s goods be divided 
 amongjl his wife and children and the next of kin^ 
 according as to every one of them cf right belongs. 
 And it appears clearly conclufive from the words 
 of the laws of Edw, the Confellor, that the ordi- 
 nary in thofe days, had nothing to do with the ad- 
 miniftration or diilribution of goods of the in- 
 tefbate (<:). Ilabeant h^rede^ ejus pecuniam et ter- 
 ra'm ejus fine aliqud diminutione^ et re£le dividant 
 inter Je \ for if this right of the heir to the goods 
 and land had not been under the ufual temporal 
 jurifdidlion of the common law, it would certainly 
 have been mentioned to be under fome other jurif- 
 di6lion. And Mr. Selden fays exprefsly, " that 
 *' until King John's time, it feems the jurifdic- 
 ** tion over the inteftate*s goods, was as of other 
 " inheritances alfo, in the temporal courts \ yet no 
 **^ fufficient teftimony is found to prove it exprefsly : 
 *' only when the common laws of thofe times fpeak 
 " of inteftates, they determined the fuccefTion by 
 " like divilion, as thofe of the Saxon times. In 
 " certain laws attributed to Will, the Firft (^), 
 " we read, Si home mouriifi fans devije^ ft departent 
 *' les infants^ lerite inter Je per ovell. And after, in 
 " Henry I. laws {e\ Si quis baronum vel hominum 
 
 {n) Lambert, fol. 167. Selden, ftol. 1S4. 
 {b) Canut. leg. c. 68, & Selden of the difpofition or ad- 
 miniltration of inteftates goods, p. 15. 
 
 {c) Leg. Ed. Conf. cap. de Heretoch. of Croland. 
 (^) MS. in the Cotton lib. attributed to Ingulph. 
 (f) Matthew Paris. 
 
 I 3 " nmrum
 
 [ n« ] 
 
 *^' meorum pneventuSy vel armis vel infirmitatei pecu' 
 *^ niam Juam 7:ec aederit^ nee dare dijpcfuerit^ uxor 
 *' Jua five liberi aut prrentes et legitimi homines Jut 
 *' pro animd ejus earn dividanf, ftcut eis melius vtfum 
 *' fuerit. Here is the firft mention, as I remem- 
 *^ ber, of any thing occurring in our laws, or hif- 
 " tories of the difpofitions of the inteftate's goods, 
 " pro animd ejus : which indeed might have been 
 *' fitly fubjedled to the view at leaft of the church. 
 " But no mention as yet of any ccclefiaftical power, 
 " that tends that way ; I rather think, that there- 
 *' fore no ufe or practice v/as of adminiftration 
 *' committed, direction given, or meddling with 
 *' the goods by the ordinaries : but all was by 
 *' friends or kindred, jiixta con/ilium dijcretonim vi~ 
 " rormuy &c. 
 
 " Neither doth that of Glanvill, which was writ- 
 " ten under Henry II, tell us of any thing of the 
 *' ordinaries power in this cafe, although it hath 
 *^ exprefs mention of teftaments, and the churches 
 " jurifdiftion of them : indeed we there find (a) that 
 *' if no executor be named, then pojfunt propinqui 
 ** et conjanguinei tejintoris take upon them the 
 " executorlhip, and fue in the king's court againll 
 *^ fuch, as hinder the due payment of legacies, 
 *' which alfo agrees well enough with that before 
 *^ cited out of the laws of Henry 1." 
 
 The firfl interference of the church, in the ap- 
 plication of the goods of inteftates, that I can 
 trace, is in the charter granted or m^ade by King 
 John in the 17th year of his reign, at Runny- 
 mead {b) : Si quis liber homo inteftatus decejj'erity 
 (alalia Jua per maims propin quorum parentum et ami- 
 coru'rn Juorum per vijum ecclefice dijlribuantur^ Jalvis 
 
 {a) Glanv. lib. 7. cap. 6. 
 
 {b) 111 a MS. prelerved by Matt. Par. Roger of Wendover, 
 and Tho. Rudman. 
 
 mi 
 
 J
 
 [ "9 ] 
 
 uni cuique dehitisy qua defunulus eis dchehat. Thefe 
 words -per vijum ecclefict cannot in any manner im- 
 port a judicial or any other power in the church : 
 they feem to import a fort of teftiinony, or noto- 
 riety only of its being done in the face of the 
 church, or before the ordinary, as it is fiid in writs 
 of fummons fer vifum proboru?n legalitim hominuniy 
 tr as Mr. Selden underftands it, by the dire^ion 
 and advice of the ordinary. 
 
 We are to obferve, that by this charter the ad- 
 minifcration and diftribution of the goods of the 
 inteftate were diredled to be made only by the next 
 of kin and the friends of the deceafed, per maniis 
 propinquorum parent urn et amicorum Jiiorum : and yet 
 very foon afterwards we may trace the interference 
 of the ordinaries gaining gradual ground towards 
 that abfolute dominion, pov/cr and authority, which 
 they afterwards exercifed without controul. For 
 we read in Bra6lon, who was a judge in the reign 
 of Henry 3d (^), " Si liber homo intejlatus et fubit'o 
 ^^ decejferit, dominus Juus nil intromit tat de bonis de- 
 " fiin^ij nifi de hoc tantum quod ad ipjum pertiniierit 
 '* (Jcilicet quod habeatjiium heriott) Jed ad ecclefiam 
 " et amicos pertinebit executio bonorum,'' 
 
 The ordinaries, foon after they had acquired this 
 joint power with the next of kin, foon found means 
 to exclude the latter from any participation, what- 
 Ibever in the adminillration and diilriburion of the 
 goods of inteftates : for in the 42d year of the reign 
 of the faid King Henry the 3d, we read of an ar- 
 ticle granted in the fynod of London {})) : " Idem 
 "^ quod mortuo laico fine teflamentOy non capiantur 
 *' bona ipfius in 7nanus dominorum, Sed inde Jolvan' 
 " tur debit a ipfius ^ et reftdua in ufils fdiorum, fervo* 
 
 {d) Bradlon, lib. 2. de acq. rer. clom. c. 26, feft. 2. 
 (^) In annal. Bartomenfis con. pernes. V. cl. Thorm. Allen 
 Oxon. MS. A, 1257. 
 
 I 4 *' rum
 
 [ 120 ] 
 
 " rum et proximorum indigentium, pro Jalute anima; 
 . '^ defiin^i^ in pios ujus per or dinar ios committantur, 
 *' mft quateniis fiierit domino Juo obligatus.'' It is 
 curious to obferve the gradation of this ufurped or 
 acquired power of the ordinaries ; firft, as we have 
 feen, they were called in as witnefles or confulted 
 as advifers ; then they became joint executors or 
 adminiftrators ; then lole adminiftrators and diftri- 
 butors of the goods of the inteilates : but ftill the 
 pious ujes^ to which they pretended to apply them, 
 were the payment of debts and the fuccour and re- 
 lief of the children and needy relations of the de- 
 ceafed. Nor did the abufes of this ufurped power 
 cenfe, till the ordinaries had acquired an arbitrary 
 and difcretionary right or authority of diftributing 
 and difpofing of all the goods of the inteftates. The 
 different gradations of this ufurped power are the 
 ^learefl proofs of its introdu6lion and eftablifhment, 
 upon the decline and abolition of the ancient laws 
 and cuftoms of the realm. 
 
 Lands were formerly devijeable. 
 
 It appears both from records and hiftory, that 
 in the days of our Saxon anceftors, goods (or per- 
 ional eflate) as well as lands paffed by defcent ; 
 and the lord of the fee was in the place of a judge, 
 to fee upon the death of any of his tenants, that 
 there Ihould be an equality in the diftribution, as 
 well of the goods, as of the lands amongft the chil- 
 dren and next of kin : for if there were children, 
 they excluded all the kindred of a more remote de- 
 gree, and therefore the rule was, Si liberi nonjunty 
 proximus gradus in pojfejfione fratrcs^ patruiy avun- 
 culiy Sec. 
 
 The cuftom of Gavel Kind, which was retained 
 all through Kent, and fubfifts even to this day in 
 fome parts of tliat county, is nothing more, than a 
 
 relid:
 
 [ •" ] 
 
 relift of the ancient common law, according to 
 that, Si qias intejiatus ohierity liber i ejus h credit at em 
 ^equaliter dividant (a). 
 
 This alfo clearly proves the ancient law of de- 
 vifing land ; for inteftacy is not fpoken of, where 
 there is not a cuftom or ufage of willing. 
 
 ^be Norman Feudal Syjtem incompatible with the 
 Power of devifing Landsy <k:c. 
 
 When William the Norman found it political to 
 change the landed tenures of the kingdom, and in- 
 troduce a more ris-orous form or mode of the feu- 
 dal fyftem, it annihilated at once the power of de- 
 vifing lands ; for a feud was at firft no more, than 
 a right, which the valTal had to take the profits of 
 jiis lord's lands, rendering unco him fuch feudal 
 duties and fervices, as belong to military tenure ; 
 fo that the tenant had only the ufe of the land, 
 and the property ftill continued in the lord. Thefe 
 feuds were originally holden only at the will of the 
 lord, but afterwards were continued to the tenant 
 during his life; in either of which cafes, they could, 
 not be difpofed of by will, for a will is the a6lual 
 difpofition of a right or intereft, which furvives the 
 teftator. Feuds, in procefs of time, became here- 
 ditary and perpetual, and even then the perfonal 
 fervices and duties, which the feudal tenant was 
 bound to pay to his lord, were of fuch a nature, 
 as elTentially precluded the power of difpofing 
 of the feud by will ; for there were certain profits 
 of ward and jnarriage, which became due to the 
 lord, if the heir was under age, at the death of the 
 tenant; and if of full age, the land fell into the 
 lord, who became entitled to relief ; tlie payment 
 of which relief was in the nature of a new purchafe, 
 
 («) Lambert fo. 167, & Selden fo. 184. 
 
 > or
 
 give him their advice and 
 three weeks in his 
 
 [ 122 ] 
 
 or a price paid to the lord for the land. The feu- 
 dal tenants were bound moreover to the defence of 
 their lord's perfon in the field, and to attend and 
 
 connfel once at lead in 
 in nis courts. Strength of body and 
 ability of mind v/ere therefore requifite, to render 
 thefe fervices properly and duly to the lord. And 
 in this fyftem, it certainly was reafonable, that the 
 lord ihould have the education of the heir, that he 
 might inftrutft, educate and form him fo, as to be 
 capable of rendering the due fervices of the feud 
 to the lord. It was therefore incompatible with 
 the feudal principle, that any man fhould be em- 
 powered by will to difinherit the heir, and fo pre- 
 clude the lord from his beneficial chances o( ward, 
 marriage and reliefy and deprive him by an impo- 
 tent fubititute of the civil and military fervices, to 
 ■which by tenure he was entitled. Befides, (fays 
 Baron Gilbert), (^) '' this vv'ay of conveyance 
 *^ wanted tha: folemnity, which the feudifts thought 
 " neceflary to eflabliili in transferring lands 3 and 
 " if at any time a difpute iliould arife, it might 
 *^ be the eafier determined by the pares comitatuiy 
 " who were witneiTes to that notorious and public 
 " manner of conveying by livery ; and, for that 
 " reafon, I believe copyhold land was taken to be 
 " out of the flatute of 3 2d Henry VIII. For their 
 ** furrendtr which is required, as well in devifes as 
 " in other alienations, anfvvers the notoriety of li- 
 *' very and feifin, and confequently out of the rea- 
 " fons of the prohibition of the feudal law. , Thus 
 " tlie law continued till the invention of ufes, 
 " which were firit found out by the clergy, to 
 ** evade the ftatutes of mortmain." We have al- 
 ready faid fo much of the yA of Henry VIII. that 
 it will be unneceffary to fiy more of it at preknt. 
 
 («) Gilbert's Law of Devifes, p. 9. 
 
 0/
 
 [ 123 ] 
 
 Of the different Modes cf inrolUng Deeds in the dif- 
 ferent Courts. 
 
 Although I have made cxtcnfive fearches amongfb 
 the records of the difFcrent courts, yet I do not 
 claim the pretenfion of having fearched fo minute- 
 ly, as to give a ftri6l and accurate account of every 
 deed there recorded ; the refult of my fearches has 
 however more and more convinced me of the ne- 
 cefTity of a regular and uniform mode of ilTuing 
 warrants for inrolling deeds and wills. By confi- 
 dering minutely the different forts of vvarrants, by 
 virtue of which, deeds and wills are now ufually 
 entered upon the rolls, and thereby become record- 
 ed in court, we fliall be enabled to judge and de- 
 termine, what fort of warrants ought only to bsif- 
 fued for that purpofe. 
 
 We have before confidered the original intent 
 and m.eaning of a party acknowledging a deed, and 
 the effffts produced by that acknowledgment ; and 
 I appeal to the judgment of thofe, who have really 
 confidered them, whether any other method be- 
 Tides that of acknowledgment, can by poiTibility 
 anfwer the ends, for which deeds are inrolled. The 
 inrolling a6b of Henry VIII. is compulfive upon 
 all perfons, who grant land by bargain and fale for 
 a pecuniary confideration. The inrolling a<5l of 
 Geo. I. is compulfive upon all Catholics, who af- 
 fed: their lands by deed or will. The time limited 
 by both a6ls for inrolling fuch deeds, is fix lunar 
 months from their date or delivery. Upon their 
 inrolment or non-inrolment within that fpace of 
 time, abfolutely depends their validity or nullity. 
 And according to every idea of common fenfe and 
 plain reafon, the acl, by v/hich the deed acquires 
 Its validity, and the omiffion, by which it becomes 
 a nullity, ought to reft with that party to the deed, 
 4 whoff
 
 [ 124 1 
 
 whofe execution of it gives it effeft; and upon 
 this principle, it is generally faid, that the grantor 
 fliould always acknowledge the deed. Nothing 
 can more plainly fpeak this general prefumption 
 or opinion, than the provifions in the aforefaid re- 
 giftering atfts, for the inrolment of bargains and 
 fales in the regiftry of the refpedlive riding of the 
 county of York, where the lands connprifed in the 
 deed lie. Thefe a6ls require, as a previous requi- 
 fite to the inrolment of any fuch deed, that the 
 grantor fhall acknowledge it before two iuftices of 
 the peace of that riding; prefuming, that if the 
 deed had been inroUed in a court of record, it 
 would have been acknowledged before one of the 
 judges of the court by the grantor, as, in my 
 humble opinion, it ought to be. For I again re- 
 peat my opinion, that no deed whatfoever ought 
 to be inrolledj till it has been acknowledged by 
 the party, whofe execution of it gives its effeft, 
 before fuch authority, as can thereupon ilTue a war- 
 rant to the offiters of the court to inrol it. 
 
 I have before faid much of the nature o^ fiats y 
 under which many of the Roman catholic deeds 
 are inroUed. But then this fort of warrant feems 
 to have been generally confined to fuch deeds, 
 unlefs in fome few inftances they have been iffued 
 for inrolling deeds pro Jalvd cufiodid. It Ihould 
 appear ex vi terminty that deeds fo inrolled were 
 kept or depofited in fome cuftody, which is not 
 the cafe. And yet it is faid in Salkeld, (^) that 
 ** at common law,'' there was " an inrolment pro 
 " Jalva cujiodid" and it appears from what I have 
 faid before, viz. that, as the court would not ad- 
 mit of a voluntary inrolment, without the acknow- 
 ledgment of the party, much Icfs would they inrol 
 a deed under a coercive llatute without its and 
 
 {a) Salk. 348. 
 
 therefore
 
 t '^5 3 
 
 therefore, when fiich voluntary inrohiients v/ere 
 made, the deeds were uiually acknowledged pre- 
 vioiiHy by the party. It often happens, that 
 perlbns wifhing to feciire and perpetuate the me- 
 mory of deeds, after the parties to them are dead, 
 have applied to the judges of the court for a war- 
 rant to the officer to inrol them ; and after the 
 deaths of the parties, (as in wills) what other war- 
 rant can be ifTued than z.fiat ? And it may be fairly 
 prefumed, that wherever a fiat has been iffued for 
 inrolling fuch a deed, when the granting or operat- 
 ing party to it was living, it has been the prefump- 
 tion and fuppofition of the judge, who figned the 
 fiat, that the party was dead, or otherwife, that he 
 would have come to acknov/ledge his own a6l and 
 deed, if he wifhed it to be inrolled and recorded. 
 
 From the eftedbs produced by the inrolment of 
 a At^^i, it muft be allowed, that there is a very 
 material difference between a deed inrolled, and a 
 deed not inrolled; and it would be highly unrea- 
 fonable, that this difference fhould be made to de- 
 pend upon the acft of an utter ftrangr'r to the deed : 
 for either the fiat is figned by the judge, without 
 any queftion or examination into the reafon, mo- 
 tive or pretenfions of the perfon, who prefents the 
 warrant for figning ; or it is figned upon the affi- 
 davit of an attefting vvitncfs to the fealing and de- 
 livery of the deed, by one of the parties to it. In 
 both thefe cafes, the deed may come to be recorded 
 in court, without the intention, and even againft 
 the wifli of the grantor j and if we refledb, that the 
 inrolment is but the completion of the a(5t of tranf- 
 fer, as was before obferved, the abfurdity of its 
 being completed without the privity or againft the 
 wifh of the grantor, will appear in its true colours. 
 
 The court of Chancery very frequently, and the 
 court of King's Bench in lome inftances, has adopted 
 gnother method of inrolling bargains and fales, viz, 
 
 by
 
 [ 126 ] 
 
 hy the affidavit of an attefting witnefs to the exe- 
 cution of the deed ; and although I cannot even 
 invent a folid and fubftantial reafon for their fo 
 doing, yet muft it be allowed, that they have the 
 fandlion of authority for it ; and fo much cannot 
 be faid in favour o^ fiats. It is faid («) '■'■ that a 
 *' deed may be inroUed ^without the examination of the 
 " -party -t upon proof by witnejfes, that the party de- 
 " liveredit." And {b) "party died before acknow- 
 " ledgment^yet the deed was inr oiled'' 
 
 To reduce this fubjeLt to fome confiftent degree 
 of reafon and regularity, we muft allow, that no 
 deed whatfoever fhould be inrolled, v/ithout the 
 acknowledgment of the granting or efficient party 
 to the deed, if he be living ,• and as it may often 
 happen, that not only by death, but even by fick- 
 nefs, bufinefs and inconveniency, a perfon may be 
 prevented or hindred from appearing perfonally 
 before a judge or magiflrates, to acknowledge a 
 deed j yet may he always at the fame time execute 
 a fpecial warrant of attorney, Vv^hich fliould be an- 
 nexed unto or indorfed upon, or even included in 
 the deed, tp empower fome proper perfon to ac- 
 knowledge the execution of it on -his or her be- 
 half, before a judge or magiflrates, and to defire 
 that it may be inrolled in a proper court. Such a 
 pradlice is not only warrantable upon the general 
 principle of all powers of attorney, qui facit per 
 aliuMy facit per Je -y but alfo more efpecially upon 
 another axiom, that qui potefl majusypotefl & minus. 
 For if a perfon can legally depute another to feal 
 and deliver a deed for him, he certainly may em* 
 power him to acknowledge his own execution. 
 But this is a matter fo plain and fimple, that I 
 fhall neither quote authorities, nor fay any thing 
 more upon the fubjedb. 
 
 («) Codb. 270. (/') 3 Leon 84. 
 
 Points
 
 t 127 ] 
 
 Points of pra6lice are often the ftrongeft evi- 
 dence of points of law ; and nothing more forcibly 
 proves, that the law intended, and in fa6t prefumes, 
 th:.t all deeds inrolled are or ought to be acknow- 
 ledged, than the titles, which are prefixed to the 
 inrolments of each term, in every one of the four 
 different courts of record ; which invariably run, 
 £Ognita et irrotulata-^ that is acknowledged and in- 
 rolled, &c. whence it is a juft inference, that none, 
 but fuch as are acknowledged, are fuppofed to be 
 inrolled. 
 
 ^he Ohj colons againjl the Notoriety of Deeds and 
 IV ills affecting Lands. 
 
 The grand, and indeed the only objection, 
 which ever hath been raifed againft the notoriety 
 of deeds and wills affcfting lands is, that thereby 
 family lecrets and tranfli6lions may be laid open 
 and divulged ; but this will foon vanifh, when we 
 refle6t, that every will of pcrfonal property mufh 
 be proved in the fpiritual court i under the feal of 
 which, letters teftamentary are granted, by which 
 the executor is enabled to maintain an action j and 
 that a will oiice proved, is depoficed as a public 
 and notorious a6t of the party, to which all per- 
 fons, but more efpecially the next of kin (who in 
 cale of an inteftacy would have been intitled to 
 the perfonal eftate of the deceafed) may have re- 
 courfe, and know without being driven to the ex- 
 pence and trouble of a fuit or aftion, upon what 
 ground, and in what manner they are deprived of 
 thofe rights, v.'hich the law would have cafl upon 
 them, if the deceafed had not counterafted its 
 effedts by a will. I have never known any incon- 
 veniency arife from fuch publication and notoriety 
 pf wills: on the contrary, I believe there are few 
 perfons, who have ever been concerned in the wills 
 
 of
 
 [ 128 ] 
 
 of their relations or friends, who have not reafon 
 to rejoice and approve of their being thus regularly 
 depofited, and open to public infpeflion. 
 
 If then in the bequeft of perfonal goods and 
 chattels, the title to which is ever more fimple and 
 obvious than to land, this notoriety is required by 
 law, how much more requifite is it, when an heir 
 at law is either wJiolly or partially difinherited, 
 or made liable and fubjecled to a temporary or 
 permanent incumbrance, or is crampt and limited 
 in his inheritance, that the inftrument fhouid be 
 publiflied and recorded, fo as to be open to public 
 infpedion and confideration, without aftion at law 
 or fuit in equity! For it is undeniable, that all 
 muniments and titles to land, and emphatically 
 fuch as go to interrupt the legal courfe of inheri- 
 tance, fhouid be matters of publicity, notoriety and 
 perpetuity. 
 
 As the power of dcvifing lands, guard ianfhips, 
 &c. was either given or received by ftatute, the 
 wills, by which they are devifed, are not fubje6ted 
 to the Ipiritual court, in which alone a public en- 
 try of wills is made, {a) Where "a guardianfhip 
 *• of a child is devifed by will, it fliall not be 
 *' proved in the fpiritual court, becaufe it being 
 •* a power given by the ftatute, it properly belongs 
 " to the courts at Weftminfter to determine, whe- 
 " ther the devife was made purfuant to the ftatute, 
 *' and therefore like wills, by which lands are de- 
 " vifed, it is ufually proved by witnefles in Chan- 
 " eery." But fuch probate in Chancery is not 
 compulfory ; it is no copy, and therefore no record 
 of the will J nor does it operate any other efFeft, 
 than the perpetuation of the teftimony of the wit- 
 nefles to the execution of the will by the devifor. 
 It rarely happens, that devifcs of land are made by 
 
 («) 1 Vent. 207. 
 
 wills.
 
 [ 1^9 ] 
 
 wills, which do not difpofe of fome perfonal eftate : 
 the quere then arifes, when the land devifed is the 
 principal obje6t of the tefbament, fhall it, or fhall 
 it not be adjudged by the fpiritual court ? Now 
 what can be more abfurd and inconfiftent, than, 
 that an inftrunnent, by which property is difpofed 
 of in this country, (hall be liable to a decifion by 
 two feparate, diftinft and contrary laws ? For fuch 
 in fa6t are the Roman law, by which the eccle- 
 fiaftical courts judge ; and the Knglifli law, which 
 determines the decifions of our courts of law and 
 equity, {a) Libel in the fpiritual court, " to prove 
 " a will, the defendant fuggefted for a prohibi- 
 " tion, that in the will there were lands and lega- 
 " cies devifed, and that the teftator was non com- 
 ** pos mentis ; but the prohibition was denied, be- 
 *' caufe the ftatute of Hen. VIII. never intended 
 " to diminiih the jurifdi6tion of the fpiritual court, 
 '^ as to probates ; and it might be very inconve- 
 " nient to flay the probate in this cafe, becaufe 
 " whilfb it is flayed, the executor cannot fue for 
 *^ debts j and by that means they may be lofl, and 
 ** the will not performed ; and it would be to no 
 *' purpofe to grant a prohibition as to the lands, 
 *^ becaufe as to them the probate is coram non ju- 
 " dice^ and cannot be given in evidence in any 
 " court of law." 
 
 Who does not fee the extremity of folly, in 
 obliging devifees in general to enter and prove 
 wills pafling lands in a court, which hath not, nor 
 x:an have any cognizance or jurifdidlion over them. 
 Independant of the ufelefs expcnce, it is highly 
 derogatory from the dignity and refpeft due to 
 our national jurifprudence. (^) " Where a will 
 *' is made of lands and goods, the temporal courts 
 
 {a) Partridge V. Cave, 2 Salk. 553. 
 
 {b) Netter v. Brett, W. Jones 355. Cr. Car. 391. 395. 
 
 K ^ wiU
 
 [ ^3^ ] 
 
 " will PxOt prohibit it to be proved in the fpiritual 
 " court. 'Tis true, this was againli the opinion of 
 " Juftice Croke, becaufe the land being the prin- 
 " cipal, the fpiritual court had no authority in fuch 
 " cafe. And that it would be inconvenient if they 
 " fhould; for the fentence given in that court 
 " might have fome influence upon any fuit, which 
 " might happen in the temporal courts concerning 
 " the land, (a) And it is faid elfewhere, that a 
 " will of lands ought not to be pioved in the fpi- 
 " ritual court." From thence and the like cafes, 
 we fee the inconveniency and incongruity of the 
 prefent law of devifes of lands, and the urgent nc- 
 ceffity of publifhing and perpetuating all wills and 
 codicils in any manner affefting them; for by 
 ■ them, titles are weakened or confirmed, heirs at law 
 difmherited, purchafers and mortgagees flrength- 
 ened or Ihaken in their purchafes or fecurities, and 
 all perfons claiming right under the devifor, moft 
 materially affefted. Every end of notoriety and 
 perpetuity will be anfv/ered by inroUing wills affeft- 
 jng lands, in the like manner, as wills of perfonalty 
 are now entered for weaker reafons, in the fpiritual 
 court. As the law ever favours the heir, it will 
 prefume him to have the right, until it be proved 
 that he is difmherited : he ought not therefore upon 
 any principle of law or equity to be driven to 
 expence and litigation, in order to prove his own 
 dilherifon ; efpecially as fuch diflierifon is effefted 
 by a legal ad or inftrument, which is warranted by 
 an exprefs ftatute. But yet the title, which is ac- 
 quired under fuch will, is in its nature inferior to 
 the title acquired by the dcfccnt, which is caft at 
 law. (^) "So ifadevife be m.ade to John Stiles 
 " and his heirs, who is heir at law to the devifor. 
 
 {a) Hill V. Thornton ii3. 
 
 {6) 3 Co. 31. a. Plowdcn's Com. 344. p. 
 
 <c 
 
 this
 
 L 131 J 
 
 "^' this Is a void devife j and the heir fhall take by* 
 " defcent as his better title, for the defceni- 
 ** ftrengthens his tide, by taking away the entry 
 *^ of fuch, as may pofllbly have right to the eflatej 
 " whereas if he claims by devife, he is in by pur- 
 « chafe." 
 
 It is a decided point (a), " that where a man 
 " makes a general devife of all liis lands, and af- 
 *' tcrwards piirchafes other lands without aijy new 
 " publication of his will, and dies, the after-pur- 
 '' chafed lands fiiall not pafs by the will, but fnall 
 " go to the heir at law ; for the ftatute impowers 
 *^ only perfons having lands to devife, and he had 
 " not thefe after purchafcd lands at the time of 
 " making his will, and therefore not within the 
 " ftatute. Befides fince the intent of the devifor 
 " is the beft rule for conilruing wills, it will be 
 '^ very reafonable, that he never defigned to con- 
 " vey thefe particular lands, fmce he had them not 
 " in his power nor poflelTion, when he fettled 
 ^^ the difpofition of his other pofTefTions." The 
 ftatute of Char. II. requires the attcftation of three 
 credible perfons to every will palling land : now is 
 it not highly unreafonable, that the heir at law, 
 who is fo materially intercft^^d in the date of the 
 will, or any codicil that may amount to a re-* 
 publication of the will, and in the validity or nul- 
 lity of a will, by reafon of the requifitions of the 
 ilatuce of Char. II. fliould be driven to his a6lion 
 to learn their fimple points, upon which his own 
 right hinges ? So far from the devifee's not being 
 compelled to publifh and manifcft his title under 
 the will, which is the cafe at prefent, I rather think 
 he ought moreover to be obliged, within a n:iorc 
 limited time after the death of the teftator, to ftrv^ 
 the heir at law v/ith an autefted copy of the will. 
 
 {a) Gilbert. Law of Devifcs, p. jg. 
 
 K 2 I havs
 
 [ 132 ] 
 
 1 have faid thus much of the legal, equitable 
 and political efFeds, that an univerfal inrolment of 
 all deeds and wills afredting lands muft neceflarily 
 produce : it remains incumbent upon me to ac- 
 count to the public in a fatisfaftory manner, for 
 the innovations, changes and alterations, intro- 
 duced into the draught of the bill, which I have 
 planned for the intended purpofe, and fubjoined 
 to thtie flieets for the fatisfadlion of the public. I 
 have chofen to be minute and particular in the 
 draught, rather than propofe the heads of a bill ; 
 judging, I hope rightly, that a more juft and fatisi* 
 factory judgment will be formed upon a plan exe- 
 cuted, than executory. 
 
 It is a matter well known, that the ereftion and 
 eftablifhment of county regifters have been at dif- 
 ferent times fuggefted, propofed and attempted in 
 parliament, and always upon the principles, upon 
 v/hich I have endeavoured to fhew the propriety 
 and exigency of all deeds and wills afFeeling land 
 being inrolled. It feems beyond queftion, that the 
 record of a deed fhould not depend upon the ex- 
 perience, attention or judgment of the attorney or 
 agent who records it, nor (hould it be otherwife 
 recorded for this reafon, than verbatim from the 
 original. We have before {litn how extremely mif- 
 chievous the prefent method of entering the me- 
 morials of deeds is in the counties of York and 
 Middlefex. I know not who E. B. Efquire was, 
 who publifhed the beforementioncd pamphlet in 
 1696: it is however fatisfaftory to find perfons 
 coalefce in opinion at the diftance of a century, 
 efpecially when every reafon for that opinion, hath 
 been acquiring ground and ftrength in a moft rapid 
 and accumulated decree during: the whole interme- 
 diatc time. For the truth of this obfervation I 
 only appeal to the refledlion of each of my readers. 
 *' It would make the title of freehold eftates as 
 
 " certain
 
 [ ^33 ] 
 
 " certain as that of copyholds : of which there is 
 ** no certainty now, by reafon of latent dteds. 
 " 2dly. It would prevent frauds in bti -ing and lel- 
 " ling, borrowing and lending, iiie borrower 
 " could not impofe upon rlie lender, becaufe his 
 " eftate would appear in the regifter, as it was ; 
 ** nor could the lender impofe any hard terms up- 
 *' on the borrower, becaufe he would be able in a 
 *' Ihort time to pay him off and transfer the debt 
 " to another man. 3dly. This would certainly 
 " lower the intereft of m.oney, increafe trade and 
 " hufbandry." And in fetting forth the inconve- 
 niency and difficulties that he apprehended would 
 be raifed againft this plan, he continues: " ift. This 
 " will prevent great numbers of lawfuits, for which 
 " there will then be no occafion, frequent fines for 
 " procuration and continuation money, which will 
 " bring great lofs to the lawyers and money-fcri- 
 " veners, and to fom.e of the moft thriving ufu- 
 " rers. adly. It will difcover thofe men, that have 
 *' mortgaged their lands two, three or more times 
 " over, and perhaps for more than they are worth. 
 " 3dly. It will reduce the greatell ufurer to 
 " moderation and fair dealings. I do therefore ex- 
 " pe6l that all thefe men will oppofe it to the ut- 
 *' moft, as it is their intereft to do ; for though they 
 " cannot take away the integrity of an honeft man, 
 " yet great care is to be taken, it may not be 
 " known which are fuch. For when knaves are 
 " once detedied, they are undone j and by them 
 " the lawyer, monev-fcrivener, &c, get all their 
 '' wealth." 
 
 K 3 DRAUGHT
 
 [ ^34 ] 
 
 DRAUGHT of a Bill for requiring the In- 
 roliT^ent of all Deeds, Wills, and Codicils 
 relating to, touching or afFe(5ling any 
 Freehold and Leafehold Lands, Tene- 
 jnents or Hereditaments within the 
 kingdom of England and dominion of 
 Wales, and for other piirpofes therein 
 - mentioned. 
 
 Pre-^mbie. "1^ THERE AS it is of the mofl: important 
 V V confequence to purchafers and lenders 
 of money upon land fecurity, that the titles 
 of the vendors and borrowers of fiich money, 
 fhould be lo clearly known and afcertained, 
 that no pofTible fraud nor deceit can be prac- 
 tifed againft hond fide purchafers, mortgagees 
 or other incumbrancers, by reafon of any pre- 
 conveyance or fecret prior debt, charge or 
 ^ncum.brance : 
 
 And whereas it is confiftent with the prin- 
 ciple of the ancient laws of this realm, that 
 the moil folemn notoriety and publication 
 fhould attend every change and afFedtion of 
 lands, tenements and hereditaments : 
 
 And whereas parliament hath at different 
 times found it expedient to enad:, that all 
 deeds and wills atfcdring lands in certain coun- 
 ties fhould be regiftered, and that certain 
 other deeds and wills fliould be inrolled of 
 regiftered throughout the nation : 
 
 And whers'.s the provifions contained in 
 fuch fcveral ach of parliament made for the 
 inrolmenc or regifterin/^ of deeds and wills,^ 
 
 have
 
 [ 13? ] 
 
 have by experience been found in many in- 
 ftances infufficient andlnadequate to the ends 
 and purpofes intended to be efFecSted by the 
 faid afls : 
 
 And whereas upon full confideration of the 
 matter, it hath appeared real en able and expe- 
 dient to repeal all the aforeiaid afts, and to 
 make one general act for the inrolment of all 
 deeds, wills and codicils, by which any free- 
 hold or leafehold lands, tenements or heredi- 
 taments throughout England and Wales, Ihall 
 be in any manner affedled : 
 
 Be it therefore declared and enafled by the 
 King's m oft excellent Majefty, by and with the 
 advice andconfenc ofthelords fpiritual and tem- 
 poral and commons in parliament affembled, 
 and by the authority of the fame, that the 
 ftatute m,ade in the 27th year of the reign of 2-h. g. 
 his late majefty King Henry VIII. ''^ for in- 
 *' rolling of bargains and Jales ;" and alfo 5 ziiz. 
 an aft made in the 5th year of the reign of 
 her late majefty Queen Elizabeth, intituled, 
 " An a5t for the inrolment of indentures cf 
 '^ bargains and J.les in the queen's majefly's 
 '^ courts of the counties of Lancafier, CheJ- 
 " ter, and biftjcprick of Durham -y' and alfo 
 fo m.uch of an ail made in the 21ft year of 21 jac. r. 
 his late majefty King James the firft, inti- 
 tuled, " An a5f againfl fuch, as fhall levy any 
 *^ fine J fiiffer any recovery^ acknowledge any fia~ 
 '* tute^ bail or judgment y in the name of any other 
 " ferfon orpcrfons not being privy and conjenting 
 '^ thereto," as relates to tne acknowledgment 
 of deeds inrolled ; and alfo an act made 4 & 5 vv. & M. 
 in the 4th and 5 th years of their late ma- 
 jefties King William and Queen Mary, inti- 
 tuled, " An a£l to prevent fraud by clandef^ 
 ^^ fine mortgages i" and alfo lb much of an a6t ? & s wu. 3d. 
 K. 4. palTed
 
 [ 136 ] 
 
 pafiTed in the yth and 8th years of his faid late 
 majefty King Williann III. intituled, " An a£f 
 '^ for the continuing Jeveral a5fs of parliament 
 *' therein mentioned" as perpetuates two fe- 
 veral ads, one made in the 4th & 5th years 
 of the reign of their faid late majefties King 
 William and Queen Mary, and the other in 
 the 6th & yth years of the reign of their 
 faid late majefties, for the better dijcovery of 
 
 ad & 34 Ann. judgments in the court of King's Bench ; and 
 alfo an afb made in the 2d & 3d years of the 
 reign of her late majefty Queen Ann, inti- 
 tuled, "yf« a^ for the public regijiering of all 
 '' deeds, conveyances and wills, that fhall be 
 " made of any honors, manors, lands, tene- 
 " ments or hereditaments within the wejl- 
 " riding of the county of Tork, after the nine 
 
 5th Ann- " and twentieth of September 1704^" and 
 alfo one other a<5l made in the 5 th year of the 
 reign of her faid late majefty Queen Ann, in- 
 tituled, ** An a^ for the inrolment of bargains 
 *' and f ales within the wefl -riding of the county 
 *' of York, in the regifler-office there lately 
 ** provided, and for making the faid regifler 
 
 CthAnn. <« yyiQyg effcSlual ;" and alfo one other aft 
 made in the 6th year of the reign of her 
 faid late majefty Queen Ann, intituled, 
 *^ An aEl for the public regiflering of all deeds, 
 *' conveyances, wills and other incumbrances, 
 " which fhall be made of, or that may affeSf any 
 ** honors, manors, lands, tenements or here- 
 " ditaments within the eafi -riding of the county 
 " -of Tork, or the town and county ofKingflon- 
 *' upon-Hull, after the nine and twentieth day 
 *' of September 1708, and for rendering the 
 *' regifler in the wefl-riding more complete j" 
 
 •2\h Ann. snd alfo one other aft made in the 7th year 
 of the reign of her faid late majefty Queen 
 
 Ann,
 
 [ 137 1 
 
 Ann, intituled, " An a5i for the pihl'tc regif- 
 
 ** tering of deeds ^ conveyances and willsy and 
 
 *' other incumbrances y which fhall he made of., 
 
 " or that may affeEl any honors^ manors ^ lands y 
 
 " tenements or hereditaments within the county 
 
 ** of Middle/ex y after the i^th day of September 
 
 *' 1709 j" and alfo one other a6l made in the i Geo. 1. 
 
 ift year of the reign of his late majcfty 
 
 King George I. intituled, *' An a5i to oblige 
 
 " Papijis to regifter their na?nes and real ej- 
 
 " tates ;" and alfo one other a6l made in the 3d 3 Geo. i. 
 
 year of the reign of his faid late majefty King 
 
 George I. intituled, '■^ An atl for explaining an 
 
 " aB pajfcd the lajifejfion of parliament -, intituled^ 
 
 '^ An a£l to oblige PapiJls to regifter their names 
 
 •* and real eftates^ and for enlarging the time 
 
 '' of fuch regiftry, and for Jc curing pur chajcs 
 
 " made by Proteftants \' and alfo one others Geo. 2. 
 
 aft made in the 8th year of the reign of his 
 
 iate majefty King George II. intituled, ''Win aoi 
 
 " for the public regifiering of deedsy convey- 
 
 " ances, wills and other incumbrances, that Jh a II 
 
 " be made of, or that 7nay affe5t any honors^ 
 
 " manors^ lands, tenements or hereditaments 
 
 " within the north-riding of the county of ' 
 
 " Torky after the i^th day of September 1736 ;" 
 
 and all the matters and things therein feverally Repealed. 
 
 and refpeftively contained, ftiall be, and are 
 
 hereby repealed, annulled and made void to 
 
 all intents and purpofes whatfoever. 
 
 And be it further declared and ena6ted by No deed, wiu, 
 the authority aforefaid. That from a.nd after '?°'i.^"'^,"'''/^- 
 
 , 1 r -1 fading land to 
 
 the day or in the year of be valid, uniefs 
 
 our I^rd 1789, no deed, will nor codicil, i;'™;|;;ij;;;'"'* 
 by which any lands, tenements or heredita- 
 ments (except copyhold or cuftomary lands) 
 be the iame freehold or leafehold, fituate, 
 lying and being within the kingdom of Eng- 
 land
 
 [ 138 ] 
 
 land or dominion of Wales, fhall or may be 
 exchanged, altered, pafT-d, charged, incum- 
 bered or afTe£led in any manner whatfoever, 
 fhall be effeftual, good or valid in law or 
 equity, unlefs fuch deed, will or codicil within 
 fix calendar months to be computed refpeiStive- 
 ly from the day of the date of fuch deed, or 
 fromi the death of fuch teftator or teftatrix, 
 dying within the kingdom of Great Britain or 
 or 5 years, if dominion of Walcs, or within the fpace ofthrcc 
 be*^' executed ycars to be computed rcfpe£lively from the 
 without the date of the deed, in cafe fuch deed fhall 
 ^ "°"' have been executed out of the kingdom of 
 Great Britain or Ireland, or from the death of 
 every fuch refpective teftator or teftatrix, dying 
 upon or in any patts beyond thefeas,ftiall be in- 
 rolled in fome one of his Majefty's four courts 
 of record at Weftminfter, or in the court or 
 office hereby appointed and eftabliftied in 
 each county, riding or divifion, for the inrol- 
 ment of all deeds, wills and codicils, relating 
 to, touching, concerning or affe6ting lands, 
 tenem.ents or hereditaments, fituate, lying and 
 being within fuch county, riding or divifton 
 refpe<5lively, in the manner and form hereby 
 direfted, appointed and required. 
 TTie inroiment And be it further dt clared and enabled by 
 lobe n..tice to j.{^g authority aforcfaid, That the aftual inrol- 
 ptr ons. j^^.j^{. ^^ every fuch deed, will or codicil, ftiall, 
 from and after the laid day of 
 
 in the year of our Lord 1789, be, and be 
 adjudged, deemed and taken to be and to 
 have been from the time of fuch adlual in- 
 rolment, expfefs and legal notice of the ef- 
 tates, limitations, trufts, chaiges, powers, con- 
 ditions, refervations, rcftridions and provi- 
 focs created, limited, declared, made, exprel- 
 fed and contained by and in fuch deeds, wills 
 
 f Qr
 
 [ 139 ] 
 
 or codicils refpeftively, to all fubfeqiient pur- 
 chalrrs, mortgagees, and other incumbrancers, 
 and to nil other perfons whomfoeverj any thing 
 herein^ or in any oiher {latute contained, or any 
 law, ufage orciidomof thisk.ngdomto the con- 
 trary thereof in any way notwithilanding. 
 
 And be it further declared and enaAed, by 
 the authority afor^faid, That before any fuch Kvery dceJ to 
 deed fhall be inrolkd, it fh.dl be acknow- ^- '"I""'!"' '^"ii 
 ledged by the granting- parrv or parties to ed before a 
 the fame, or by fuch oarty or uarties thereto, !?u'"^'"^^^^^^*" 
 whole execution thereof gives errect to fuchjuftices of the 
 deed, before any one of his N4;' • fby's indices ^'^^'^^' 
 of any of the courts of recos-d, in which the 
 fame is intended to be inroiled, or before any 
 mailer ordinary or extraordinary of the high 
 court of Chancery, or bv_fore two juftices of 
 the peace for the county, riding or divifion, 
 in the court or office of which, fuch deed is 
 intended to be inrolled, and tne name of 
 f.ich judge, n.cifter in Chancery, or of fuch 
 juftices of the peace, fliall be fuofcribed to 
 fuch acknowledgment; and the fubfcription 
 of the name or names of fuch judge, mafter 
 in Chancery, or juftices of the peace, under 
 fuch acknowledgment, upon the face of the 
 deed fhail be the authority and warrant to the 
 clerks, officers or commiffioners of the re- 
 fpeftive courts or offices to inrol the fame, who 
 in cafe the deed, upon which fuch acknowledg- 
 ment ftidl appear to be ftibfcribed as aforefaid, 
 be properly ftampt for inrolment, fliall, and 
 are hereby required to inrol the fame accord- 
 ing to the direftions and requifitions of this 
 acl:: and the form of every fuch acknow- 
 ledgment to be written upon the face of every 
 fuch deed to be inrolled, ffiall be as follov/eth, 
 t:hat is to fay : 
 
 " The
 
 [ I40 ] 
 
 k*"^"^i i^ ri^' " '^^^ execution of this deed having been 
 " acknowledged before me [or us] by 
 *' A. B. the party [or and C. D. parties] 
 " thereto, who is [or are] bounden to ac- 
 " knowledge the fame, let it be inrolled in 
 " his Majefty's court of 
 " or in the court or office for inrolling 
 " deeds and v/ills in the county, [or 
 " riding] of this day of 
 
 " 178 A.B. [or A. B. and CD."] 
 
 Acknowiedg- Provided always, and be it further declared 
 rncnts may be ^^^ enaftcd by the authority aforefaid, That 
 
 made by attor- , \ ^ » . 
 
 Bies. in caie any luch perlon or perlons, who is or 
 
 are hereby required to acknowledge every fuch 
 deed, before icfhall beinroiied,fhall not be able 
 to appear perfonally before the judge, mafter 
 in Chancery, or juftices of the peace, in order 
 to acknowledge and defire the fame to be in- 
 rolled in the proper court or office as afore- 
 faid, it fhall and may be lawful to and for 
 him, her or them, by fome deed or deeds to 
 be fealed and dehvered by him, her or them, 
 in the prefence of, and to be attefted by two 
 or more credible witnefles, to make, authorize 
 and ordain one or more attorney or attornies 
 for him, her or them, and in his, her or their 
 name or names to acknowledge the execution 
 of fuch deed before fuch juHge, mafter in 
 Chancery, or joilicc ot the peace as aforefaid, 
 and for him, her or them to defire, that fuch 
 deed may be inrolled: and every acknow- 
 ledgment of fuch party [or parties] to a deed 
 fo made by his, her or their attorney or at- 
 tornies, for that purpofe efpecially made, au- 
 thorized, and ordained as aforefaid, fhall be 
 as eifeftual to all intents, conftrudtions, and 
 purpofcs whatfoeverj as if the party or parties 
 had- perfonally appeared, and acknowledged 
 4 hisj
 
 [ '41 ] 
 
 his, her or their deed, before fiich judge, ma- 
 fter in Chancery, or juftices of the peace as 
 aforcfaid. 
 
 Provided always, and it is further declared Affidavit of the 
 and ena(5led by the authority aforefaid. That ';'^^'"^^';^J°[^';"= 
 whenever any peribn or perlbns Ihall appear be- ney may be ac- 
 fore fuch judge, mailer in Chancery, or juf- ^""■^'^* 
 tices of the peace, to acknowledge a deed for 
 and in the name or names of the party or 
 parties to the deed, it Ihall and may be law- 
 ful to and for any fuch judge, mafter in Chan- 
 cery, or juftices of the peace, whenever he or 
 they Ihall think proper, to demand a proper 
 legal affidavit of the execution of the war- 
 rant, power or letter of attorney by the party 
 or parties hereby required to acknowledge 
 the deed as aforefaid, and to refufe or withhold 
 his or their fignature to fuch warrant or di- 
 recTtion for inrolment, until fuch affidavit as 
 aforefaid Ihall be produced : And the form 
 of every fuch acknowledgment to be written 
 upon the face of every fuch deed to be inrol- 
 led, where the party or parties cannot perfon- 
 ally appear, ihall be as follows, that is to fay. 
 
 " The execution of this deed by A. B. the Form of ac- 
 ** party, [or and C. D. parties] who JjJ^^^^'^Jj^f ™;''' 
 " is [or are] bounden to acknowledge 
 " the fame having been acknowledged 
 *^ by E. F. [or and G. H.] lawfully con- 
 " ftituted the attorney [or attornies] for 
 " the faid A. B. [or and C.D.] to acknow- 
 " ledge and defire the fame to be inrolled 
 " by virtue of a fpecial and proper power 
 *' or warrant of attorney produced before 
 " me [or us] for that purpofe, let it be in- 
 " rolled in his Majefty's court of 
 " or in the court or office for inrolling 
 " deeds and wills in tlie county [or riding] 
 
 « of
 
 rolmeDtofwills. 
 
 [ 142 ] 
 
 " of this day of 178 
 
 « A. B. [orA. B. and C. D.]"" 
 
 And it is further declared and enadled 
 by the authority aforefaid. That no executor 
 nor executrix, nor other pcrfon or perfons who- 
 foever claiming or deriving any beneficial 
 intereft, right or adva.i'.ige under any will 
 or codicil, Ihall, from and after the 
 day of in the year 1789, be 
 
 enabled to fue for, claim or demand either 
 at law or in equity, the whole or any part or 
 parts of fuch beneficial intereft, right or ad- 
 vantage, until the faid will or codicil, in cafe 
 it fhall affed any freehold or Icafehold lands, 
 tenements or hereditaments, within the king- 
 dom of England, or dominion of Wales, fhall 
 Fiats for the In- have bccn inrolled in manner aforefaid: And 
 before any fuch will or codicil fhall be inrolled, 
 a fiat, warrant or direftion for inrolment fhall 
 be written upon fuch v/ill, upon a proper and 
 legal affidavit being produced, or an oath 
 being made of the execution of fuch will or 
 codicil by the teftator or teflatrix by one or 
 more of the fub^rribing witnefTes thereto, 
 before fuch judge, mafler in Chancery or juf- 
 tices of the peace, as aforefaid ; and. then fuch 
 judge, mailer in Chancery, or juflices of the 
 peace, fliall fubfcribe his or their name or 
 names to fuch fat, warrant or diredtioni the 
 form whereof fnall be as followeth : 
 
 " Upon the aflidavitcf A.B. being produced 
 " [or upon the oaih of A. B. being made] 
 " before me [or us] of the legal execution 
 " of this will or codicil by the teflator or 
 " tcll;ntrix,]tt it be inrolled in his Maje- 
 " fly's court of or in the court 
 
 *' or office for inrolling deeds and wills ia 
 " the counrv [or iJding] of 
 
 *' this 
 
 Il^tirm of the 
 fiat.
 
 [ '43 ] 
 
 " this day of 178 ' 
 
 " A. B. [or C. D and E. F.]" 
 
 Provided always, and be it further declared provifo in caf« 
 and enaded by the authority aforefaid, That ^/Jj^^^^^^^^^ 
 in cafe all fuch attefting witnefles fhall haveneiies. "" 
 died before the expiration of the time limited 
 by this adt for the inrolment of fuch v/ill or 
 codicil, then fuch//?/, warrant or direftion to 
 inrol may be granted by any fuch judge, 
 mafter in Chancery, or juftices of the peace, 
 upon the oath or affidavit of any credible pcr- 
 fon, who fhall have fworn to the handwriting, 
 of any fuch attefting witnefs as aforefaid ; and 
 in ftjch cafe the form of every fuch fiat^ war- 
 rant or dire6tion jQiall be as folio weth : 
 
 " Upon an oath having been made [or an Form of £itia 
 " affidavit having been produced] before ^"*^^ "'^'** 
 " me [or us] by A. B. that the name of 
 *' C. D. one of the attefting witneffirs to 
 " this will or codicil, is in the handv/ri- 
 ^^ ting of the faid C. D. who, as well as 
 " the other attefting witnelies thereto, is 
 " fince dead, let this v;ili [or codicil] be 
 " inrolled in his JVIajefty's court of 
 " or in the court or office for inrolling 
 *' deeds and wills in the county [or riding] 
 "of this day of 178 
 
 " A. B. [or A. B. and C. D]." 
 
 And it is hereby further declared and en- Tiie fiat figned 
 afted by th? authority aforefaid, That the fub-'' ^T TT^"*^ 
 
 ^ . . ' - . • _ . t^J tlie clerk for 
 
 Icription of the name or names of fuch judge, inroiiins- 
 mafter in Chancery, or juftices of the peace 
 to any fuch /t?/, warrant or diredlon for in- 
 rolment, written upon any fuch Vvill or codi- 
 cil, fhall be a complete authority and warrant 
 to the clerks, officers or commiffioners of the 
 refpedive courts or offices, to inrol fuch will 
 or codicil, who, in cafe the faid wiii or codicil, 
 
 upon
 
 t 144 ] 
 
 upon which fuch jiat^ warrant or direftio?; 
 Ihall appear fubfcribed as aforefaid, be pro- 
 perly ftamped for inrohiient, fliall and are 
 hereby required to inrol the fame according 
 to the diredlions and requifitions of this aft. 
 provifo in cafe Provided always, and it is further declared 
 of the lofs or ^j^^j ^naf^etj by ^^ authority aforefaid, That 
 
 luppreuion of a . r r • 1 • i r 
 
 -wiii. in cale oi any mis-laying, conceahnent or lup- 
 
 preflion of any fuch will or codicil, the fpace 
 of fix calendar months Ihall have elapfed from 
 the death of the teftator or teftatrix, dying 
 within the kingdom, or the fpace of three 
 years from fuch death, in cafe of his or her 
 dying without the kingdom as aforefaid, it 
 fhall and may be lawful to and for any fuch 
 judge, mafter in Chancery, or juftices of the 
 peace, upon an oath or affidavit of the fact 
 being made or produced before him or them 
 to his or their fatisfaftion, to fign any fuch 
 jiat^ warrant or diredlion for inrolment, upori 
 any fuch will or codicil fo having been mif- 
 laid, concealed or fupprefTed as aforefaid, al- 
 though the time fhall have elapfed, within 
 which it ought to have been inrolled, in cafe 
 it had not been fo miflaid, concealed or fup- 
 prefTed ; and every fuch inrolment fhall be 
 as good, valid and efFe6lual, as if the will or 
 codicil fo miflaid, concealed or fupprefTed had 
 been inrolled within the time limited by this 
 aft, except as againft purchafers for a valuable 
 confideration, and all other incumbrancers 
 without notice of fuch will or codicil, where 
 the purchafe or incumbrance fhall have been 
 made after the death of the tcflator or tefta- 
 trix, and before the aftual inrolment of the 
 will or codicil fo miflaid, concealed or fup- 
 prefTed. 
 
 And be it further declared and enafted by 
 tjic authority aforefaid, That every perfon pro- 
 curing
 
 [ HJ ] 
 
 curing fuch acknowledgment of the execu- 
 tion of a deed ox fiat ^ warrant or dircdlion for 
 the inrohncnt of a will or codicil, to be 
 figned by fuch judge, mafter in Chancery, or 
 juilices of the peace as aforefaid, fnall pay or Fees for ac- 
 caufeto be paid the fum of cs. to the perfon ■^'^"^^-'^^isments 
 
 (. ^ . . - -' ^ and fiats. 
 
 or perlons hgni ng the lame. 
 
 And be it further declared and ena6led by 
 the authority aforefaid, That no fuch deed, will 
 nor codicil fliall be inrolled as alorefaid, which 
 fhall not have been properly (lamped according 
 to the intent and meaning of the 1 2th fe6lion 
 of the 19th of his prefent Majefty, c. 66. in- 
 tituled, " An aB for granting to his Majejiy 
 " fever al additional duties on ftamped vellum, 
 " parchment and paper ^ and for better Jecuring 
 *' the fiafnp duties upon indentures^ leafeSy deeds 
 " and other inflrurnents;'" (that is to fay) And Re-uintimi of 
 it is hereby exprefsly declared to be the ii^ten-[[^^^"|,'"^^^^^j^J'^ 
 tion and meaning of the faid laftmentioned uicd. 
 a(^, as well as of this prefent a6l, that the 
 number of ftamps upon each deed, will or 
 codicil, fnall be proportioned to the number 
 or quantity of words refpcftivcly contained 
 therein, (diat is to fiy) 5 one proper (lamp for 
 inrolmentfor each deed, will or codicil, which 
 fhall contain a lefs number or quantity of 
 words, than thirty common law flieets, (each 
 common law flieet containing feventy-two 
 words), and two fuch ftamps for each deed, 
 will or codicil, which fliall contain any num- 
 ber or quantity of words exceeding thirty com- 
 mon law Iheets, but lefs than forty-five fuch 
 common law fheets j and fo in proportion of 
 one ftamp for every fifteen common law fheets 
 of feventy-two words each, which fuch deed, 
 will or codicil fliall contain over and above 
 the number of fifteen common law fheets, where 
 L the
 
 C hS ] 
 
 the deed;, will or codicil contains in the whole 
 more, than thirty common law fiieets. 
 Confirm:iiionof Provided nevcrthelcfs, and it is hereby ex- 
 the pradice of prefsly declared and enafted by the aiitho- 
 
 inrolhng deeus r J r-j-r-i fri i ij 
 
 in the courts of rity aforelaiG, i hat arterluch acknowledgment 
 record. ^^ ^^ execution of a deed, or {wz\\fiaty war- 
 
 rant or dire6lion for the inrolment of a will, 
 fnali have been figned by any fuch judge, 
 mafter in Chancery, or juftices of the peace 
 as aforefaid, if the fame Tnall be inrolled in 
 any one of his Maicfly's courts of record at 
 Weflminfter, the fame {hall be inrolled there- 
 in in the manner and form, and for paying 
 fuch fees, as are now ufed and eftablifhed in 
 each refpeftive court, which ufages and efta- 
 blifhments are hereby allowed, ratified and 
 confirmed. 
 Mode of inroi- And be it further declared and enabled by 
 ;y"?oum!"''""tHe authority aforefaid, That every fuch deed, 
 will or codicil, fo to be inrolled in any court 
 or office of inrolment in the county^ riding or 
 divifion, in which the lands, tenements or he- 
 reditaments comprifed in or afteftcd by fuch 
 deed, will or codicil, are lituate, lying and 
 being, fiiall be iiril fairly and faithfully writ- 
 ten or ingroffed upon proper rolls of parch- 
 ment of one uniform fize and dimenfion ; 
 which parchment fhall be provided by the 
 clerks, officers or commiffioners of the diffe- 
 rent courts or offices, and fnall be by them 
 delivered gratis to all perfons applying for the 
 fame, for the purpofe of inrolling any deed, 
 will or codicil thereupon in their refpedlivc 
 court or offices j and when any fuch deed, 
 will or codicil ffiall have been fo written oi 
 ingroffed upon the rolls, and ffiall have 1 ec/. 
 examined with, and found to be a true SlvA 
 faithful copy of the original dced^ will or co- 
 5 dicil. 
 
 f
 
 [ 147 ] 
 
 dicil, by the perfon bringing the fame to be 
 inrolled, and one of the clerks, officers or 
 commiflloners of fuch court or office, or his 
 or their deputy or deputies, in cafe there fhall 
 be the proper number of (lamps by the afore- 
 faid ailpaiTcd in the 19th year of his faid pre- 
 fent Majefcy, and hereby required upon the 
 deed, will or codicil fo to be inrolled, then 
 fuch deed, will or codicil, fiiall be inrolled or 
 entered upon or amongft the rolls of fuch 
 court or office, there to remain a record of 
 fuch court or office ; and the clerk, officer or 
 commiffioner of the refpeftive court or office, 
 or his deputy or deputies, fliall thereupon in- 
 dorfe upon every fuch deed, will or codicil, a 
 certificate of the time of inrolling the fame, 
 and fign fuch indorfed certificate. 
 
 Provided always, and be it further declared I- 5° penalties 
 and enabled by the authority afcrefaid. That J|f,° ni,°g ^4^ 
 in cafe any fuch clerk, officer or commiffioner, ""^ ^ propei 
 or his or their deputy or deputies, fhall in- ftamps. 
 rol or fuffer to be inrolled, any deed, will or 
 codicil, which fliall not have been (lamped, 
 according to the direftions and requifitions of 
 the faid aft of the nineteenth year of the reign 
 of his faid prefent Majedy, and of this aft, 
 every fuch defaulter or defaulters fliall forfeit 
 the lum of ;^. 50 of lawful money of Great Bri- 
 tain, with treble cofts of fuit for every fifteen 
 common law ffieets, which fliall be contained 
 in any fuch deed, will or codicil, over and 
 above the quantity or number of words, there- 
 by and hereby allowed of or limited to each 
 (lamp, to any perfon or perfons who fliall To b^ recover- 
 
 • 1-,- c ^ • \ c ed upon iiifor- 
 
 within live years after the inrolment or any mation withia 
 fuch deed, will or codicil, without the requi- ^'-e years, 
 fite number of ftamps, inform or fue for the 
 fame, in any court of record within the king- 
 L. a dom
 
 [ h8 ] 
 
 dom of England or dominion of Wales, by 
 
 aftion of debt, bill, plaint or information, 
 
 wherein no elToign, protedlion, nor wager of 
 
 law fliall be allowed. 
 
 Where deeds /^^d be it further declared and ena&d by 
 
 Z i^ndstyins' the authority aforefaid. That wherever any one 
 
 in divers coun- (^ged. Will or codicil fliall concern, relate to 
 
 ties may be in- rr- o i i t j- 
 
 lolled. or affect lands, tenements or hereditaments, 
 
 fituate, lying and being in divers counties, rid- 
 ings or divifions, it fhall be at the option of 
 the perfon or perfons inroUing the fame, to 
 inrol fuch deed, will or codicil, in any of the 
 four courts of record at Wellminfter, or in 
 any court or office of a county, riding or di- 
 vifion, in which any of the faid lands, tene- 
 ments or hereditaments, comprifed in or af- 
 fefted by fuch deed, will or codicil, Ihall be 
 fituate, lying and being. 
 Where lands And be it further declared and ena6led by 
 countiisafeTf!t:he authority aforefaid. That wherever any 
 feftcd by o.e deed, will or codicil, fhall have been inrolled 
 SadiV'to 'be in any of his Majefty's four courts of record 
 entered in each ^t Weftminftcr, ot in any county court or 
 couiuyco^urc. ofHce of inrolment, where the lands, tene- 
 ments or hereditaments comprifed in or af- 
 fedted by fuch deed, will or codicil, fliall be 
 in divers counties, ridings or divifions, then 
 an abftract of fo much of fuch deed, will or 
 codicil, as relates to, concerns or affedts the 
 lands, tenements or hereditaments, fituate, ly- 
 ing and being in any particular county, rid- 
 ing or divifion, in which fuch deed, will or 
 codicil fhall not be inrolled, iTiall within the 
 fpace of three calendar months, to be com- 
 puted from the time, at which fuch deed, 
 will or codicil ought to be inrolled, be entered 
 or inrolled iji the county court or office, in 
 which fuch lands, tenements or hereditaments, 
 
 comprifed
 
 [ 149 ] 
 
 comprlfed in or affefted by fuch deed, will or 
 codicil, are fitiiate, lying and being refpec- 
 tively : and every fuch abftrail fo to be en- 
 tered or inrolled, fhall be written or ingroffed 
 upon vellum or parchment (to be provided 
 and delivered by the clerks, officers or com- 
 miflioners, in manner aforcfaid) in a fair, le- 
 gible hand ; and fhall contain the date of 
 the deed, will or codicil, the names of the oraaihaiicoa'. 
 parties to fuch deed, or the name and de- ^^^"• 
 fcription of the tcftator or teftatrix of any 
 fuch will or codicil, and a fufficient defcrip- 
 tion of the parcels to afcertain the lands, te- 
 nements or hereditaments, fituate, lying and 
 being within the refpeftive county, riding or 
 divifion, in the court or office of ^yhich, fuch. 
 abftraft ffiall be entered, and the ufes, limi- 
 tations, trufts, charges, powers, conditions, 
 provifoes and agreements, by which fuch lands, 
 tenements and hereditaments are affefted, and 
 the execution of the different parties, who 
 fhall have executed the fame, and the time 
 at which, and the court or office, in which 
 fuch deed, will or codicil fliall have been in- 
 rolled : And before any fuch abftraft fliall be 
 entered as aforefaid, the original deed fo in- 
 rolled, or the original will or codicil, or a pro- 
 bate thereof fliall be produced to the com- 
 miflloners, officers or clerks, or their fufficient 
 deputy or deputies, who after having exa- "Certificates of 
 mined fuch abftrad with the original deed, be indorfed 
 will or codicil, or probate, and found the SorcodtcTi*^* 
 Hime to be a faithful and true abftraft thereof or prgb.itc 
 refpeflively, fhall indorfe upon fuch deed, 
 will, codicil or probate, a certificate under 
 his or their hand or hands, that a true ab- 
 ftraft of fo much thereof hath been entered 
 in their refpedtive court or office, as relateth 
 L 3 to
 
 of the inrol- 
 ment. 
 
 [ '5° 3 
 
 to or concerneth any lands, tenements or he- 
 reditaments, over which their rerpe6tive court 
 or office extendeth. 
 Fees for enter- ^nd be it further declared and ena6i:ed by 
 "^^'^ ' * the authority aforefaid. That the commiffion- 
 ers, officers or clerks, fhall be allowed for the 
 entry of every fuch abflraft, as is by this a6l 
 dircdled and required to be entered, the Turn 
 of twopence and no more, for every com- 
 mon law fheet of feventy-two words each 
 fheetj and fo in proportion for a greater or 
 lefs quantity or number of words, which fuch 
 abftraft fnall contain. 
 The certificate And bc It futther declared and enafted by 
 Snroitd d?eds the authoHty aforefaid, That all deeds, wills 
 to he evidence and codicils, fo inrolled either in any of the 
 faid courts of record at Weftminfter, or in 
 any of the faid courts or offices for inroUing 
 the fame in the different counties, ridings or 
 divifions as aforefaid, which Ihall appear to be 
 fo inrolled by certificate of fuch inrolment, 
 indorfed upon any fuch deed, will or codicil, 
 and figned by the proper clerk, officer or com- 
 miffioner refpedively, fliall be taken and al- 
 lowed as evidence of fuch inrolment, in all 
 courts of record and elfewhere. 
 Office copies of And It is further declared and enafted bv 
 irJvTdalcer ^^^ authority aforefaid, That in all cafes, in 
 where the ori- which any pctfon or perfons claiming under 
 coming? ^"'''^' ^"y deed, will or codicil inrolled, fliall not 
 have the poffeffion, cuftody, nor power of the 
 original deed, nor of the will, codicil, or pro- 
 bate thereof, then where in any declaration, 
 avowry, bar, replication or other pleading 
 whatfoever, any fuch deed, will or codicil in- 
 rolled, (hall be pleaded with a frofert in cu- 
 ria^ or offer to produce the fame, the perfon 
 or perfons fo pleading, ffiall and may produce 
 
 and
 
 [ '51 ] 
 
 and fhew forth, and be fuffcrcd and allowed 
 to produce and (hew forth, by the authority 
 of this ad', to anfvver fiich prcfcrt^ as well 
 againff his Majefty, his iicirs and fucceflbrs, 
 as againli any other perfon or perfons whom- 
 foever, a copy of the inrolment of fuch deed, 
 will or codicil ; and fuch copy examined with 
 the inrolment, and figned by the proper clerk, 
 officer or commiffioner, and proved upon 
 oath to be a true copy fo examined and fign- 
 ed, fhall be of the fame force and effect, to 
 all intents and conftru6tions of law and equity, 
 as the original deed, will or codicil inrolled, 
 would or fliould be of, if the fame were in any 
 fuch cafe produced and fhewn forth in any 
 court of record or elfewhere. 
 
 And be it further declared and enafled by o^^^s ^o ^« 
 the authority aforefaid. That there fhall be ' ' 
 erefted and eftablifhed public offices for in- 
 rolling and preferving the rolls and abftradts 
 of all deeds, wills and codicils within the time, 
 in the mianner, and at the places hereinafter 
 limited, diredted and appointed ; (that is to 
 fay) before the day of ^1^9^ 
 
 there fliall be conflrufted a ftrong and dry 
 building or repofitory, fo detached from any 
 other buildings, as to render the fame fecure 
 from fire or other accidents, in which fuch 
 rolls may be fafely depohted, and fo near 
 unto the court or office for inroiling deeds^ 
 wills and codicils, that the fame may be daily 
 depofited therein at fuch hours, at which they 
 fhall not be kept open for public infpe6lion, 
 examination or ufe, at each of the following 
 places, in which all deeds, wills and codicils, 
 or abftratls thereof relating to, touching or 
 affecting lands, tenements and hereditaments, 
 fituate, lying and being vv'ithin the counties, 
 L 4 divifions
 
 [ »5i 3 
 
 dlvifions or ridings, hereinafter mentioned, * 
 fhall be inroUed or entered refpe^tivelVj (that 
 is to fay) : 
 
 At Bedford for the county of Bedford. 
 
 At Reading for the county of Berks. 
 
 At Aylefbury for the county of Bucks. 
 
 At Cambridge for the county of Cambridge. 
 
 At Chefler for the county of Chefter, with 
 the city and county of the city of Chefter. 
 
 At Launcefton for the county of Cornwall. 
 
 At Carlille for the county of Cumberland. 
 
 At Derby for the county of Derby. 
 
 At Exeter for the county of Devon, with 
 the city and county of the city of Exeter. 
 
 At Dorchefter for the county of Dorfet, with 
 the city and county of the city of Pool. 
 
 At Durham for the county palatine of 
 Durham. 
 
 At Chelmsford for the county of ElTex. 
 
 At Gloucefter for the county of Gloucefter, 
 with the city and county of the city of Glou- 
 cefter, and the city and county of the city 
 of Briftol. 
 
 At Hereford for the county of Hereford. 
 
 At Hertford for the county of Hertford. 
 
 At Huntingdon for the county of Hunt- 
 ingdon. 
 
 At Canterbury for the county of Kent, and 
 the county of the city of Canterbury. 
 
 At Prefton for the county palatine of Lan,~ 
 cafter. 
 
 At Leicefter for the county of Leicefter. 
 
 At Lincoln for the county of Lincoln. 
 
 At London for the county of Pvl iddlefex. 
 
 At Monmouth for tl:e councy of Mon- 
 mouth. 
 
 At Norwich for the county of Norfolk, with 
 tlic city and county of the city of Norwich. 
 
 At
 
 [ '53 ] 
 
 At Northampton for the county of North- 
 ampton. 
 
 At Newcaftle upon Tyne for the county of 
 Northumberland, with the town and coun- 
 ty of the town of Newcaftle upon Tyne 
 and the town of Berwick upon Tweed. 
 
 At Oxford for the county of Oxford. 
 
 At Oakham for the county of Rutland. 
 
 At Shrev/fbury for the county of Salop. 
 
 At Taunton for the county of Somerfet. 
 
 At Winchefter for the county of Southamp- 
 ton, with the town and county of the town 
 of Southampton. 
 
 At Stafford for the county of Stafford, with 
 the county and city of Litchfield. 
 
 At Ipfvvich for the county of Suffolk. 
 
 At Guilford for the county of Surry. 
 
 At Chichefter for the county of SufTcx. 
 
 At Warwick for the county of Warwick, with 
 the city and county of the city of Coventry. 
 
 At Kendal for the county of Weflmoreland. 
 
 At Worcefter for the county of Worctiler, 
 with the city and county of Worcefter. 
 
 At Salifbury for the county of Wilts. 
 
 At Wakefield for the weft-riding of the coun- 
 ty of York. 
 
 At Northarlerton for the north-riding of the 
 county of York. 
 
 At Beverley for the eaft-riding of the county 
 of York, with the town and county of the 
 town of Kingfton upon Hull. 
 
 At Beaumaris for the county of Anglefea. 
 
 At Brecon for rhe county of Brecknock. 
 
 At Cardigan for the county of Cardigan, 
 
 At Carmarthen for the county of Carmarthen, 
 and county borough of Carmarthen. 
 
 At Caernarvon for the county of Caernarvon. 
 
 At Denbigh for the county of Denbigh. 
 
 At
 
 [ 154 ] 
 
 At Flint for the county of Flint. 
 
 At Cardiff for the county of Glamorgan, 
 
 At Bala for the county of Merioneth. 
 
 At Montgomery for the county of Mont- 
 gomery. 
 
 At Pembroke for the county of Pembroke, 
 and town and county of Haverford Weft. 
 
 At Radnor for the county of Radnor. 
 
 County courts /^jj which faid buildings, repofitories, courts 
 to be built and or officcs, fhall be purchafed, built, repaired 
 repaired. ^j^^ eftablifhed at the public charge of each 
 county, divifion or diftrift refpe6lively, to be 
 raifed by the jufticcs of the peace thereof, at 
 the general quarter feflions of the peace, in 
 fuch manner, as they are empowered to raife 
 money for the repairs of public or county 
 bridges, and in fuch places, as to the majority 
 of the faid juftices of the peace, at their ge- 
 neral quarter kffions, fliall feem moft proper 
 and convenient. 
 Tfie officers or And be it further declared and enabled by 
 
 cit-rks how to, , . /- ^.,__,, , ^ . . „ 
 
 be elected. the authonty atoreiaid, i hat the laid omcers, 
 commiflioners, or clerks for managing and 
 conducing the bufinefs of fuch offices or 
 courts, fhall be appointed in manner follow- 
 ing (that is to fay) : At the firft general quar- 
 ter fcffions of the peace, which fliall be hold- 
 en for the refpeftive county, riding or divi- 
 fion, in which a court or office is to be erefted 
 or ellabliflied, after the day of 1789, 
 
 every perfon reprefenting in parliament the 
 county, or any city or borough within the 
 diftrift, over which the refpe6cive inrolmcnt- 
 court or office fliall extend, fliall cither at- 
 tend in perfon, or by fome fit perfon autho- 
 rifed and empowered under a proper power 
 ' of attorney, fealcd, figned and delivered by 
 
 fuch
 
 [ 155 ] 
 
 fuch abfcntee, in the prefence of two credible 
 perfons, and fliall there deliver in to the faid 
 court of quarter fcffion, a paper in the hand- 
 writing of fuch abfent elector, containing the 
 name, quality and defcription of the perfon, 
 whom he chufes and elects for the clerk, of- 
 ficer or commifiioner of the inrolment-court 
 or office of that refpe6tive diftriil j and in. 
 cafe of fuch eleftor appearing by deputy, 
 proxy or attorney, the oath of fuch deputy, 
 proxy or attorney fliall be taken in open court, 
 that the paper delivered into court was figned 
 and fealed by the abfent eledlor in his pre- 
 fence : And the perfon, who fhall have a ma- 
 jority of fuch votes, fliall be declared by the 
 faid court to be duly elefted the commilTioner, 
 officer or clerk of the faid inrolment-court or 
 office ; and ffiall from thenceforth be duly 
 appointed, and fhall continue in fuch com- 
 miffion, charge or office, for fo long a time, 
 as he ffiall well and faithfully demean himfelf 
 therein ; and in cafe any two or more perfons 
 fhall have an equal number of votes, then the 
 majority ffiall be decided by the votes of the 
 major part of the juftices of the peace, (not 
 being any of them members of parliament) 
 who ffiall be then upon the bench; and in 
 cafe they ffii^^ll be divided into equal numbers, 
 then the fenior Juftice ffiall have the calling 
 vote. 
 
 Provided neverthelefs, and it is hereby fur- Theregiftersof 
 ther declared and enacted by the authority [J^tile'covKuy S 
 aforefaid. That no fuch ele6tion as aforefaid Vork to remain 
 ffiall be had or made for any officer, clerk ort^^^^!'^'''''''^ 
 commiffioner, for any of the inrolment-of- 
 fices within the three ridings of the county of 
 York, until the death, refignation, furrender 
 or vacation of the prefent regilters, or any of 
 
 them^
 
 [ 156 ] 
 
 them, but they lliall continue from thence- 
 forth fo long as they fliall well demean them- 
 felves in their faid refpeftive offices, commif- 
 fions or charges, but fhall from the day 
 of 1789 regulate, perform and execute 
 
 the bufinefs of their refpedive courts or of- 
 fices, according to the tenor, requifitions and 
 intentions of this a6l ; and all future officers, 
 clerks or commiffioners for the faid ridings 
 fhall be eleded and chofen in the manner 
 hereby diredled and required. 
 Who to be the Providcd alfo, and it is further declared 
 Sct'fSMid-andenaaed by die authority aforefaid. That 
 «efex. from and after the day of ^7^9* 
 
 the regifter-office for the county of Middlefex 
 (hall be converted into the court or office for 
 inrolling all deeds, wills and codicils affefling 
 lands, tenements and hereditaments, lying 
 within the faid county, and die fworn clerk to 
 execute the office of inrolment in the high 
 court of Chancery, who is appointed to inrol 
 for the county of Middlefex, the chief clerk 
 to inrol pleas in the King's Bench, the clerk 
 of the warrants in the, court of Common- 
 Pleas, and the King's remembrancer or his 
 deputy in the court of Exchequer, fliall be 
 the clerks, officers or commiffioners of the 
 faid inrolment- court or office for the county 
 of Middlefex ; and they fliall and may from 
 tim.e to time nominate and appoint one or 
 more able and fufficient perfon or perfons, for 
 whom they ffiall be accountable and refpon- 
 fible, to be their deputy or deputies ; and 
 they ffiall continue to be nominated and ap- 
 pointed in the manner, in which they have 
 heretofore ufually been nominated and ap- 
 pointed; and they ffiall regulate, perform and 
 execute tiie bu Gnefs of fuch inrolmcnt-court 
 
 or
 
 [ 157 ] 
 
 or office, for the fiid county of Mlddlefex, 
 according to the tenor, requificions and inten- 
 tions of this aS:. 
 
 And be it further declared and enacted by Penaity on om. 
 the authority aforefaid, That if any fuch offi- ^ers wsieaios 
 cers, commifTioners or clerks, cither by them- " ^* 
 lelves or by their deputies, lliall negleft to per- 
 form his or their duty in the execution of their 
 faid offices, charges or conimiffions, accord- 
 ing to the regulations and forms by this ac^t 
 directed and required, or commit or exercife, 
 or fuffer or procure to be committed or exer* 
 cifcd, any undue or fraudulent praclice in the 
 execution of their laid offices, charges or 
 commiffions, and be thereof lawfully convict- 
 ed, then fuch clerk, officer or commiffioner 
 Hiall forfeit his faid office, charge or commif- 
 fion, and pay treble damages with full cods 
 of fuit, to every fuch perfon or perfons, as ffiall 
 be injured thereby, to be recovered by a6lion 
 of debt, bill, plaint or information, in anv of 
 his Majefty's courts of record at Wciiminller, 
 wherein no effoign, protection, privilege, nor 
 wager of law fliall be allowed, nor any more 
 than one imparlance. 
 
 And it is further declared and enaCled by q^^,, ^^ ^^ ^^_ 
 the authority aforefaid. That all and every fuch ken hy thcofn- 
 perfon and perfons fo to be eleCted, nominated ^^'^''^''^^'^^'^ 
 or appointed as aforefaid, before they or he 
 iliall enter upon the execution of the faid of- 
 fice, employment or charge as aforefaid, fliall 
 be fworn before one or more of the juftices 
 of any of his Majefty's courts ^of record at 
 Weftminfter, or before three or more of the 
 juftices of the peace for the county, riding, 
 divifion or diftrid, for which they or he Hiall 
 be fo elected, nominated or appointed com- 
 miffioners, officers or clerks as aforefaid, who 
 
 are
 
 L 158 ] 
 
 are hereby aiithorilcd, empowered and required 
 to adminifter fuch oadi in the following words, 
 (that is to fay). 
 
 " I yf. B. having been eleded, nominated 
 *' or appointed a commilTioner, officer 
 '' or clerk for executing and managing 
 *' the court or office of inrolling deeds, 
 " wills and codicils, within the county 
 " [or riding] of do hereby 
 
 " folemnly fwear, that I will duly, juft- 
 " ly and faithfully perform and execute 
 " the faid office, charge or commiffion, 
 *' according to the tenor, directions and 
 *' requifitions of an a6l of parliament 
 " made in the 29th year of his Majefty 
 " King George the Third, intituled, 
 " *' An a^ for requiring the inrolment of, 
 *' all deedsy wills and codicils relating tOy 
 " touching or affcEiing any freehold and 
 " Jeafehold lands, tenements or heredita- 
 *' mentSj within the kingdom of Englandy 
 *^ dofninion of Wales, and for other -pur- 
 '* 'pcjes therein mentioned^'' according to 
 " the bell of my judgment and the dic- 
 " rates of my confcience. 
 
 " So help me GOD." 
 And to find two And be it further declared and enafted by 
 ?"'■"'" ^°^"^'"" the authority aforefaid. That every fuch com- 
 
 into rcco'^niz- * ^ 
 
 ancesof;C-6ooomiffioner, officer or clerk fo to be elected, 
 •^'^'•' nominated or appointed as aforefaid, before 
 
 his admiffion to fuch office, employment or 
 charge, fhall find two fufficient fureties, who 
 ffiall enter into feparate recognizances, before 
 the lord high chancellor of England, or the 
 chief juftice of his Majefty's court of King's 
 Bench or of the Common Pleas, or of the 
 chief baron of his Majefty's court of Exche- 
 quer at Wcltminfter, wherein they ffiall be- 
 come
 
 [ ^59 ] 
 
 come fevcrally and refpecStively bounden to his 
 Majefty, his heirs and fuccefTors, in the Turn 
 o( £. 6coo each, for the punctual and faithful 
 execution of the faid office, employment or 
 charge, by the perfon fo to be elefled, nomi- 
 nated or appointed, for whom they ihall have 
 entered into fuch fecurity as aforefaid. 
 
 Provided neverthelefs, and be it further Recosniznnces 
 declared and enafted by the authority afore- [° diTeT'^yVars 
 faid, That when any fuch commiffioner, officer ^f^er death or 
 or clerk fhall die, or furrender or vacate his 
 office, charge or commiffion, and if within 
 the fpace of three years from and after fuch 
 death, furrender or vacation, no mifbeha- 
 viour appear to have been committed by fuch 
 officer, clerk or commiffioner, in the execu- 
 tion of his faid office, charge or commiffion, 
 then and in fuch cafe, at the end of the faid 
 three years after fuch death, furrender or va- 
 cation, the faid recognizance fo entered into 
 fhall become void and of none effedl, to all 
 intents and purpofcs whatfoever. 
 
 i\nd be it further declared and enabled by ^ees for inroi- 
 the authority aforefaid, That from and after "^^' 
 the day of in the year of our Lord 
 
 1789, it ffiall and may be lawful to and for 
 fuch commiffioners, officers or clerks for the 
 time being, to aflv and demand from every 
 perfon inrolling any fuch deed, will or codicil 
 as aforefaid, the fum of threepence for every 
 common law fheet or folio, and fo in propor- 
 tion for a greater or lefs number contained in 
 the deed, will or codicil fo to be inrolled ; 
 and alfoone ffiilling for every certificate, which 
 they fhall indorfe upon any fuch deed, will or 
 codicil, as hereinbefore they were diredled 
 to do. 
 
 ' And
 
 [ i6o ] 
 
 foffea°che°^'" And be it further declared and enafted by 
 the authority aforefaid. That the faid feveral 
 entries and inrohnents fhall be kept in fuch 
 courts or offices open for the infpetlion of all 
 perfons, upon all days (except Sundays and 
 holydays) throughout the^year, froni the hour 
 of ten o'clock in the forenoon till three 
 
 Tees for o'clock in the afternoon of the fame day ; and 
 
 ' the faid commifTioners, officers or clerks for the 
 time being, and their deputies, are hereby 
 authorifed and empov/ered to demand the fum 
 of one fliilling from every perfon, for each 
 fearch, which he or ffie ffiall chufe to make ; 
 
 and for copies, and alfo to demand the fum of five ffiillings 
 for every fifteen common law Ineets, which 
 they ffiall be required to make an extract 
 or copy ofj and fo in proportion for a greviter 
 or lefs number of words. 
 
 Office copies to Provided neverthelefs, and it is hereby fur- 
 
 UiJnc'erv.'' ''''"' '^^"'^^ declared and enafted by the authority 
 aforefaid, That no fuch offiCe-copy of the 
 whole or any part of any fuch deed, will or 
 codicil fnall be made, but upon fuch ftamps, 
 as are dire6led and required to be put upon 
 all office copies of deeds, wills or proceedings 
 made in any of the cfliccs connected with or 
 dependant upon the high court of Chancery, 
 
 Books to he And be it further declared and enafted by 
 
 kept regularly j.|-,g authoritv aforcfaid. That in every fuch 
 
 and orderly. •' . . , ,■' 
 
 court or office for inrolling deeds, wills and 
 codicils as aforefaid, the clerk, officer or com- 
 miffioner of fuch refpeftive court or office 
 fliall, as he is liereby boundcn fo the faithful 
 difcharge of his office, charge or commiffion, 
 to keep and preferve pioper books, in which 
 entries ffiall be made of all deeds, wills and 
 codicils, and of all abftracfts, that have beea 
 inrolkd or entered in that particular court or 
 o office f
 
 [ '6> ] 
 
 office : And every fiich entry (hall fct forth 
 the date of the deed, will or codicil, or ab- 
 ftraftj and the name and names of the grant- 
 ing or covenanting party or parties to the 
 deed, or of the teliator or tellatrix, and the 
 time, at which the iame was inrolled or en- 
 tered. 
 
 And be it further declared and enacted by The fees, how 
 the authority aforc!:iid, That all fuch payments ^°''''' api'ii'-^J* 
 hereby dire<5ted to be made into the faid courts 
 or offices, ffiall be paid unto and received by 
 the commiffioners, officers or clerks for the 
 time being, for their care, management and 
 cuftody of fuch inrolments and entries, and 
 for attending by themfelves or deputies, at 
 fuch hours during which the faid courts or of- 
 fires are hereby direded to be kept open as 
 aforefaid, and for computing and examining 
 all fuch deeds, wills, codicils and abftra6ls, 
 and for making extrafts and copies thereof^ 
 and alfo for making and keeping fuch books 
 of entries and references, and alfo for colleft- 
 ing and making out fuch entries of all deeds, 
 ■wills, codicils and abftrads, and tranfmitting 
 the fame every half-year to the clerk, officer 
 or commiffioner of the reference office in 
 London, as is hereinafter mentioned, and alfo 
 for paying and di ("charging all the cofts, 
 charges and expences of all the parchment and 
 paper ufed in their refpeflive courts or offices, 
 and alfo for paying and difcharging whatever 
 yearly or other payments, rents, taxes, impo- 
 fitions or afreifments ffiall from time to time 
 become due and payable, for and in refpedt 
 of the houfesj buildings and premises, in which 
 fuch courts or offices, and repofitories ffiall 
 be, and alfo whatever monies ffiall from time 
 to time be required to keep the fam.e in con- 
 M ftant.
 
 [ i62 ] 
 
 flant, good and fubftantial repairs, and alfo 
 for defraying all the expences, cofts and 
 charges, which fhall be incurred by the poft- 
 age and carriage of letters, packets and par- 
 cels, and generally by all other matters rela- 
 tive to the bufinefs of the faid courts or of- 
 fices. 
 A reference And In Order, that perfons having occafion 
 
 bShed?'''''^"'t:o fearch the different courts or offices for the 
 inrolment of fuch deeds, wills and codicils, 
 may do the fame with the greater eafe, cer- 
 tainty and fatisfaction ; be it further declared 
 and ena6led by the authority aforefaid, That 
 from and after the day of in the year 
 
 1789, there fhall be erefted or purchafed and 
 eftabliflied a reference office in or near 
 in the faid county of Middlefex, at the joint 
 expences and ' by equal contribution of each 
 county, riding and divifion throughout Eng- 
 land and Wales, in which any fuch court or 
 office is or fhall be efi:ablifhed as aforefaid. 
 xin^to appoint And it is further declared and enafted by 
 clerks of the the authority aforefaid. That it fhall and may 
 «ffice. be lawful to and for the King's Majefly, his 
 
 heirs and fucceflbrs to nominate and appoint 
 by commilTion, to be iflued under the great 
 feal of Great Britain, fuch two perfons, as his 
 Majefty fhall think fit to be the officers, clerks 
 or commiffioners, for managing, conducing 
 and executino; the bufinefs of fuch reference 
 office by themfclves, or their fufficient deputy 
 or deputies, and who fliall continue in fuch 
 office, charge or commiffion fo long, as they 
 fhall well and faithfully demean themfelves 
 The clerks to therein; and they fliall before their admiffion 
 ties 'to^enter' ^^ f^^ch office, charge or com.miflion, find two 
 iatorecogni- fufficient furctics, who fliall enter into feparate 
 each."" ^°'' recognizances, before the lord high Chan- 
 cellor
 
 [ i63 ] 
 
 cellor of England, or the lord chief Juftice 
 of his Majefty's court of King's Bench, or of 
 the Common Pleas at Weitminfter, or the 
 lord chief Baron of his Majefty's court of 
 Exchequer, wherein they fhall become refpec- 
 tively bounden to his Majefty, his heirs and 
 fuccefTors, in the fum of ^. 3000 each, for 
 the punctual and faithful execution of the 
 faid office, charge or commiffion, by the per- 
 fons fo to be nominated, appointed and com- 
 miflioned as aforefaid : And fuch officers, And take the 
 cleik or commiffioners, ffiall alfo before their °''^°^"^"' 
 admiffion to the faid office, charge or com- 
 miffion, before the lord high Chancellor of 
 England, or the chief Juftice of his Majefty's 
 court of King's Bench, or of the Common 
 Pleas, at Weftminfter, or of the chief Baron 
 of his Mnjefty's court of Exchequer, take and 
 fubfcribe an oath in the form following; that 
 is to fay — 
 
 " I A. B. having been appointed by his Ma- 
 " jefty's commiffion, under the great feal 
 " of Great Britain, an officer, clerk or com- 
 " miffioner of the reference office, do 
 *^ hereby folemnly fwear, that 1 will duly, 
 " juftly and faithfully execute the faid of- 
 " fice, charge or commiffiion, according 
 " to the tenor, condition, andrequifitions 
 " of the aft of the 29th year of the reign 
 " of his Majefty King George III. inti- 
 " tuled, " An a6i for requiring the inrolment 
 " of all deeds y wills and codicils ^ relating to,, 
 *' touching or affe^ing any freehold or leafe- 
 " hold landsy tenements or hereditaments 
 " within the kingdom of England and do- 
 *' minion of Wales ^ and for other purpofes 
 " therein mentioned." So help me God." 
 And it is further declared and enaded by The books, 
 the authority aforefaid. That feparate and °''^" '^ ^^' 
 M 2 ' diftind
 
 [ 164 ] 
 
 di{l:in6l books for each county, riding or di- 
 vifion, in which a court or office is or fhall 
 be erefted or efbablifhed, fhall be kept and 
 preferved in the rtference office, in which 
 entries fhall be made of all deeds, wills and 
 codicils, and of all abftrads, that have been 
 inroUed or entered in any of the courts of re- 
 cord, or county courts or offices refpcftively as 
 aforefiid ; and every fuch entry fhall fet forth 
 the date of the deed, will or codicil or abftraft, 
 and the name or names of the grantor or 
 grantors, grantee or grantees, or of the tefta- 
 tor or teftatrix, and the county or counties, 
 in which the lands, tenements or heredita- 
 ments afFefted by fuch deed, will or codicil 
 lie, and the court in which, and the time, at 
 which the fame was inrolled or entered. 
 One (hiiiins to And it is further declared and enafted, by 
 Iiec'"tov-nr J'*'^ ^'^^ authority aforefaid. That every perfon in- 
 the reference rolling or caufiug to bc inroiled or entered 
 °*"* any deed, will or codicil or abftradl as afore- 
 
 faid, in any of the faid courts of record, or 
 in any of the faid county courts or offices, is 
 hereby required to pay one ffiilling over and 
 above all other payments hereby direfted and 
 required to be m.ade as aforefaid, for every 
 fuch dt'td, will or codicil or abftraft, fo in- 
 rolled or entered as aforefaid, unto the clerk, 
 officer or commiffioncr of the court, in which 
 fuch deed, will or codicil or abftraft, is re- 
 fpeftively ini'olled or entered. 
 Knt.ic. toiic And it is furdier enaifted and declared by 
 trnnimtu donee tl^e authority aforcfiid, I'hat the officers, com- 
 K.ihc refer- miilioners or ckrks or the dim-rent county 
 entcoiiice. courts, are hereby directed and required, in 
 confideration of the aforefaid emoluments and 
 perquifites hereby allowed unto them, to 
 tranfmit once in every month, fuch entries of 
 the diflercnt deeds, wills, codicils and ab- 
 
 ilrads,
 
 [ i65 ] 
 
 Hrafts, as have been inrolled and entered in 
 
 their refpeftivc court or office, to the officers 
 
 clerks or commiffioners ot the faid reference 
 
 office, who are alio hereby required to enter 
 
 thii fame forrhwith in the levcral and refpec- 
 
 tive books, in the manner and form aforefaid ; 
 
 and to pay or tranfmit, or caufe to be paid or 
 
 tranfmitted, at the fame time, the fum of one 
 
 fniliing unto the clerks, commiffioners or 
 
 officers of the faid reference office, which 
 
 they ffiall have received in manner aforefaici : 
 
 And the faid officers, clerks or commiffioners The clerks of 
 
 of the faid reference office, fhall once in '']^ leference 
 
 , -" orhce to extract 
 
 every month, make or cauie to be made, an monthly all 
 extradl or entry of every deed, will or codicil, InroiieTfnThe^ 
 inrolled in any of the faid courts of record courts of re- 
 at Weftminfter ; and they fhall receive from '^"' 
 the clerks, officers or commiffioners of the 
 refpeftive courts, in which fuch deed, will or 
 codicil fhall be inrolled, the fum of one ffiil- 
 ling for each deed, will, codicil or abftrad:, 
 which ffiall have been received by them, at 
 the time of their original inrolment or en- 
 try refpectivelv ; all which extra6ls or entries The entries to 
 
 ntiir-i'* J 11 J be made in the 
 
 Ihall be fairly written and regularly entered books of ihc 
 in the books for the different counties for 'eference 
 that purpofe kept in the faid reference 
 office. 
 
 And it is further declared and enabled by Notice to be 
 the authority aforefaid. That from and after s'^'^"''"y'"'''"s 
 the laid day or in the year 1789, ence office of 
 
 whenever a iudgment, ilatute or recognizance, i^^'s"'^"/^' ft^- 
 
 J CD ' _ n II tutes and recog- 
 
 (other than and except iuch, as mail be en- nizances. 
 tered in the name and upon the proper ac- 
 count of his Majefty, his heirs or fucceflbrs) 
 fhall be obtained or entered into, of or con- 
 cerning, or whereby any freehold or leafehold 
 lands, tenements or hereditaments, within the 
 M 3 kingdom
 
 [ '66 ] 
 
 kingdom of England, or dominion of Wales, 
 can, (hall or may be in any manner affedled, 
 in law or equity, the plaintiff or plaintiffs, 
 conufee or conufees, Ihall within the fpace 
 of three days after the entering up of any fuch 
 judgment or acknowledgment of any fwch 
 ftatute or recognizance, is and are hereby 
 required to give notice thereof in writing to 
 the clerks, officers or commiffioners of the 
 faid reference office ; and every fuch no- 
 tice, which Ihall be figned by the clerk or 
 clerks of the court, in which fuch judgment, 
 ftatute or recoo-nizance fhall be recorded re- 
 fpeftivelvj (hall contain the name or names of 
 the plaintiff or plaintiffs, and defendant or de- 
 fendants, conufor or conufors, and conufee 
 or conufees, in fuch judgment, ftatute or re- 
 cognizance refpecflively ; the day, on which 
 fuch judgment ffiall have been entered up, or 
 fuch ftatute or recognizance fhall have been 
 acknowledged, and the amount of the fum or 
 fums of money, for which fuch judgment fliall 
 have been obtained, or fuch ftatute or recog- 
 nizance ffiall have been acknowledged re- 
 fpedlively ; and the county, riding or divifion, 
 in which any lands, tenements or heredita- 
 ments are fituate, lying and being, which are 
 Entries thereof affedled thereby in law or equity: And the 
 tobenade. clerks, officers or comm.iffioners of the faid 
 office, ffiall and are hereby required to make 
 entries thereof, in the refpedlive books of the 
 faid reference office ; and ffiall and are alfo 
 hereby required within the fpace of three days, 
 to be computed from the time of their receiv- 
 ing fuch notice or notices, to tranfmit a copy 
 f^x copies of the entry of every fuch judgment, 
 ftatute or recognizance, to the clerk, officer 
 or commiffioner of the court or office, v/ithin 
 
 the
 
 [ i67 ] 
 
 the diftri6l of which, any of the lands, tene- 
 ments or hereditaments, Jb affefted by the 
 judgment, ftatute or recognizance as aforefaid, 
 are fituate, lying and being, in order that a 
 proper entry may be made of fuch judgment, 
 ftatute or recognizance, in the books of each 
 court or office, by the refpeftive clerk, officer 
 or commiffioner thereof, who in confideration 
 of the allowances hereby made to him and 
 them, is and are hereby required to enter fuch 
 copies fo tranfmittcd to them in their refpeftive 
 books. 
 
 Provided always, and it is further declared No land to bs 
 and enafted by the authority aforefaid, That?'^f'^^'^ ''y/ 
 
 . . . , ^ - J '. judgment, &c. 
 
 no luch judgment, itatute nor recognizance, unieis notice 
 ffiall in any manner affeft any lands, tene- [-^reace'office'. 
 ments or hereditaments, of or concerning 
 which, fuch notice fhall not have been given 
 to or left with the clerks, officers or com- 
 miffioners of the faid reference office as 
 aforefaid. 
 
 And it is further declared and enaded by Fee of one 
 the authority aforefaid, That the clerks, offi- 'V'",'"^ ^"'' r'*'' 
 cers or commiffioners of the faid reference mitting the no- 
 office, are hereby authorized and empowered '"■"'^ '° ^'^^^^ 
 
 1 ^ r 1 r r \ • • rr^ ^ ■ county court. 
 
 to demand or and from fuch plaintiff or plain- 
 tiffs, conufee or conufees, the fum of one 
 fhilling for each county, riding or divifion, to 
 the court or office of which, they are hereby 
 required to fend or tranfmit fuch notice of 
 any judgment, ftatute or recognizance as 
 aforefaid. 
 
 And it is further declared and enacfted by satisfnaions 
 the authority aforefaid. That from and after ''""'.'" ^.'^ ^"■ 
 
 , . ■' - . , _ tcred and cer- 
 
 the day ot in the year of our tified. 
 
 Lord 1789, in cafe the whole or any part of 
 the money fecured under or by virtue of any 
 deed, will, codicil, judgment, ftatute or recog- 
 M 4 nizance,
 
 [ i68 ] 
 
 nizance, which Ihall have been fo inrolled or 
 entered as aforefaid, fhall be paid off, fatis- 
 fied or difcharged, if at any time or times af- 
 terwards a certificate fhall be brought to the 
 clerk, officer or commifTioner of the court or 
 office, in which fuch inrolment or entry fliall 
 have been made, figncd by the perfon or per- 
 fons entitled to receive fuch monies, and at- 
 tefted by two credible witnefTes fpecifying the 
 amount of the monies paid off, fatisfied and 
 difcharged, (which witneffes fhall upon their 
 oath before any one of the Judges of his Ma^ 
 jelly's court of King's B'.^nch or Common 
 pleas, or any one of the Barons of the court of 
 Exchequer, or before any one of the mafters 
 of the court of Chancery, or before any two 
 or more juftices of the peace, or before the 
 clerk, officer or commjffioner of the court or 
 office, in which fuch deed, will, codicil, judg- 
 ment, ftatute or recognizance fhall have been 
 inrolled or entered refpeftively, who are hereby 
 refpe6tively impowered to adminifler fuch 
 oath, prove fuch monies to have been paid 
 off, fatisfied or difcharged accordingly, and 
 that they faw fuch certificate figned by the 
 perfon or perfons intitlcd to receive the fame) 
 and then in every fuch cafe, the clerk, officer 
 or commiffioncr, or his or their deputy or de- 
 puties, fhall make an entry in the margin, or 
 at the foot of every fuch roll of a deed, will or 
 codicil, and in the margin of every book op- 
 pofite to the entry of every judgment, ftatute 
 or recognizance, under or by virtue of which, 
 the monies fo paid off, fatisfied or difcharged, 
 fliall have been fecured or made payable, that 
 the fame have been paid off, fatisfied and 
 difcharged according to fuch certificate, to 
 which the faijie roll or entry fhall refer j and 
 
 fhall
 
 [ -69 ] 
 
 fhall after file fuch certificate to remain upon 
 record in the faid court or office : and all 
 fuch clerks, officers or commilTioners are 
 hereby authorized and impowered to demand 
 the fum of one fiiilling from every perfon or 
 perfons bringing fuch certificate, to be entered 
 and filed as aforefaid. 
 
 And it is further declared and enacted by Theiv.okstobe 
 the authority aforefaid, That the faid feveral "J^^'^ 
 books of entries or extracts lliall be kept in 
 the faid reference office open for the in- 
 fpeftion of all perfons, upon all days (ex- 
 cept Sundays and holydays) throughout the 
 year, from tlie hour of ten of the clock in 
 the forenoon, 'till three of the clock in the 
 afternoon of the fame day: And the officers, Fees for fearch- 
 clerks or commiffioners for the time being, " ^'^"^ '■"P"'^" 
 of the faid reference office, and their depu- 
 ties, are hereby authorized and impowered to 
 demand the fum of one fhilling from every 
 perfon, for each fearch, which he or they 
 Ihall make ; and alio to demand the like fum 
 of one fhilling, for every entry or extra6l, 
 which they fiiall be required to make a copy of. 
 
 And it is further declared and enabled, by Application of 
 the authority aforelaid. That as well the mo- ^^''^' 
 nies paid or remitted to the clerks, officers 
 or commiffioners of the faid reference office, 
 at the time of their taking or receiving fuch 
 entries or extrafts as aforefaid, as the monies 
 received for all fearches and copies as afore- 
 faid, fiiall be allowed unto the faid clerks, 
 officers or commiffioners, for attending and 
 collefting fuch entries or extrafts from the 
 faid courts of record in manner aforefaid ; and 
 for purchafing, digefting and keeping the 
 aforefaid books, and m.aking fuch entries and 
 cxtrafts therein, and for attending the faid 
 
 office
 
 [ lyo ] 
 
 ojSice at the hours before mentioned, and 
 for defraying the expences and charges of 
 keeping; one or more deputy or deputies, 
 and alio for paying and difcharging what- 
 ever yearly or other payments, rents, taxes 
 or afiefTments, fhall from time to time be- 
 come due and payable, for and in refpeft of 
 the houfe, buildings, and premifTes, in which 
 the faid reference office fhall be, and alfo 
 whatever monies fhall from time to time be 
 required to keep the fame in conftant, good 
 and fubflantial repair, and alfo for defraying 
 all the expences, cofls and charges, which 
 fhall be incurred by the poftage or carriage 
 of letters, packets and parcels, and generally 
 by all other matters neceffarily relating to, 
 touching or concerning the faid reference 
 olEce. 
 Membersofpar- And bc it further declared and enabled by 
 liameni not eii- ^\^q authority afotcfaid. That no member of 
 parliament for the time being, of any county, 
 city or borough, fliall be capable of being 
 chofen clerk, ofHcer or commifTioner of any 
 fuch court or office of a county, riding or 
 divifion, or of the reference ofEce, or of exe- 
 cuting by him.felf or any other perfon, fuch 
 office, or have, take or receive any fee. or 
 other profit whatever, for or in refpeft there- 
 of; nor fhall any fuch clerk, officer or com- 
 miffioner, or his 'or their deputy or deputies 
 for the time being, be capable of being chofen 
 to ferve in parliament. 
 Recital. And whereas it fometlmes happeneth, that 
 
 wills and codicils are deftroyed, miflaid, loll 
 or fupprefTed, by accident, negleft or defign, 
 whereby the rights of your Majefty's liege 
 fubjefts, who might have claimed under 
 fuch wills and codicils, are defeated j and 
 
 whereas
 
 [ 171 ] 
 
 whereas it may be fatisfaclory for many 
 perfons having made wills or codicils to 
 wills, or other teflamentary difpofitions or 
 inftru6lions, that the fame may be depofitcd 
 during their lives, in fome fecure repofitory, 
 and that no perfon, but the teftator or tefla- 
 trix can have accefs during his or her life 
 to fuch wills or codicils, and no other but the 
 proper perfon or perfons can have accefs to or 
 acquire the poffeflion thereof after their deaths ; 
 be it therefore declared and enafted, by the ^[^^ ^^^^^^ ^^ 
 authority aforcfaid, That from and after the provide an s- 
 
 j r • . 1 partmei'it in the 
 
 day of in theyear|:ef,,,„eeoffice, 
 
 of our Lord 1789, the faid clerks, officers for Jepofitin^ 
 or commiflioners of the faid reference office ^^' 
 fliall prepare and diftribute into alphabetical 
 and chronological order, an apartment in the 
 faid reference office, in which all wills or 
 codicils, or teftamentary difpofitions or inftruc- 
 tions which fhall be brought to the faid office, 
 ffiall be depofited, and fafely and orderly kept, 
 until the fame fhall be required to be delivered 
 out in manner hereinafter mentioned. 
 
 And be it further declared and ena6led, by Themnnncrof 
 the authority aforcfaid. That if any perfon tiepofitingwiUs, 
 
 I r 1 J r 1- L -11 fct. feestobe 
 
 chuiing to leave or depoiit his or her will or paid. 
 codicil, or teitamentary difpofition or inftruc- 
 tions in the faid office, ffiall bring the fame 
 to the faid clerks, officers or commiffioners, 
 and pay the furn of 2s. 6d. to fuch clerks, 
 officers or commiffioners, then fuch clerks, 
 officers or commiffioners ffiall annex or affix 
 unto fuch will or codicil, or teftamentary dif- 
 pofition or inftruftions, or unto the cover, 
 packet or parcel, which ffiall contain the fair.e, 
 a label or flip of parchment, upon which ffiall 
 be written the name and defcription of the 
 
 teftator
 
 [ 172 ] 
 
 teftator or tcflatrix, with foaie numerical figure 
 or figures, and the name of the clerks, of- 
 ficers or commifTioners, and the fame fhall be 
 ftampt with the ftamp of the office, and that 
 part of the label or flip of parchment, which 
 fhall contain the name of the clerks, officers 
 or commiffioners, and the numerical figure or 
 figures, fhall be cut off by an indented fec- 
 tion, and delivered to the teftator or teftatrix, 
 which being produced to the clerks, officers 
 or commiffioners of the faid reference office, 
 or to their deputy or deputies, ffiall be to him 
 or her a certificactd authority to demand the 
 delivery of the will, codicil, teftamentary dif- 
 pofition or inftrutlions, or the packet or par- 
 cel, to which the fame ffiall belong j and an 
 entry ffiall be immediately forthwith made in 
 the liooks, which the clerks, officers or com- 
 miffioners for the time being, are hereby re- 
 quired to keep for that purpofe in alphabetical 
 and chronological order, of the day, on which 
 the fame was left or depofited, and of the name 
 and defcription of the teftator or teftatrix, and 
 of the numerical figure or figures exprefled 
 upon the label or flip of parchment as afore- 
 faid ; and every fuch entry fVall be figned by 
 the teftator or teftatrix, or his or her attorney 
 or attornies for that particular purpofe efpe- 
 cially authorized and deputed. 
 Manner of drii- And it is further declared and enacted by 
 ^♦^'y'''*'^;;'''^'' the authority atorefaid, That whenever any 
 
 ict. to teftator •' ^ n n i i r -j 
 
 or teftatrix. perfon or perlons inali produce to the laid 
 clerks, officers or commiffioners, or their de- 
 puty or deputies, any fuch label or flip of 
 parchment fo indented, ftamped and figned as 
 aforefaid, every fuch will, codicil, teftament- 
 ary difpofitioEi or inftrudions, or the packet 
 or parcel, to which tlie fame ffiall have been 
 
 annexed
 
 [ 173 J 
 
 annexed cr afFixed, or il'iall belong, fhall be 
 dtlivcrcd to the perfon or perfons protlucing 
 fuch label or flip of parclmient as aforelaid ; 
 and the entry thereof made in fuch book or 
 books as aforefaid, fliall be croffed or marked, 
 and the teflator or tcflatrix fo receiving back 
 his or her will or codicil, teftamenrary difpo- 
 fition or inftrudlions, fhall fign in the margin 
 of fuch book or books oppofue to the entry 
 thereof, his or her name by w.iv of acknow- 
 ledging the receipt thereof;- and every per- "»e ihiiiing to 
 Ion to whom fuch delivery fliall be made, ij^^.^i-y oTeactr 
 fliall pay unto the laid clerks, officers ^'■■'^^• 
 or commifTioners, the fum of one fhil- 
 ling. 
 
 Provided always, and it is further declared Manner of de- 
 and enafted by the authority aforefaid, That no teJ^.^|"r'rattQr- 
 ■will, codicil, teftamentary difpofition, nor in- "')'• 
 ftrudlions fo depofited as aforefaid, fhall be 
 delivered to any other perfon or perfons, than 
 the teflator or teflatrix, unlefs a power of at-, 
 torney from the teflator or tcflatrix fliall be 
 produced, together wiih fuch certificated au- 
 thority as aforefaid properly executed, and au- 
 thorizing the perfon or perfons producing fuch 
 certificated authority, label, or flip of parch- 
 ment fo indented, ftampt, and figned as afore- 
 faid, to demand the delivirry of the will or 
 codicil, or packet cr parcel, to which the 
 fame had b':en annexed or aflixed, or did 
 belong. 
 
 Provided always, and it is further declared The powers of 
 and enafted by the aurliority aforefaid, Thatf"7f>V"V 
 
 ^ J J . ' ilcpofued and 
 
 cverv fuch power of attorney, by virtue of delivered out 
 which, any will, codicil, tL-fl:amentary difpo- '"'^^ '^" ''■''••• 
 fltion or inftruftions fhall have been left or 
 depofincd in luch ofFice as aforefaid, fliall be 
 depoflted, kept and delivered our, together 
 
 with
 
 [ '74 ] 
 
 I 
 
 with the will or codicil, packet or parcel, to' 
 which the fame fhall refer or belong. 
 Provifo for de- And it is further declared and enacfled by 
 iii'SL"hriabei ^^^ authority aforefaid, That in cafe any fuch 
 or nip of parch- label or flip of parchment fo indented, ftampt, 
 ^ent be loft, ^^j ^^^^^^ ^^ aforcfaid, lliall be loft, miflaid, 
 
 deftroyed, or fraudulently obtained or fup- 
 prefTed from the teftator or teftatrix, or from 
 his or her lawful attorney or attornies, then 
 upon an affidavit having been made before a 
 proper magiftrate or magiftrates of all the cir- 
 cumftances of the cafe, as it fhall have hap- 
 pened, and fuch affidavit being produced to 
 the faid clerks, officers or commiffioners, or 
 their deputy or deputies, they ffiall, and are 
 hereby required to deliver out the will, codicil, 
 teftamentary difpofition or inftruilions, and 
 the cover, packet or parcel, to which fuch 
 label or flip of parchment fo indented, ftampt 
 and figned as aforefaid ffiall have belonged, in 
 the fame manner, as if it had been aftually 
 produced, and the perfon or perfons receiving 
 the fame, by virtue of and under fuch af- 
 fidavit, ffiall fign his, her or their name or 
 ■ names in the margin of the faid book or books 
 
 as aforefaid, oppofite to the refpe6live entry fo 
 to be crofled or marked as aforefaid, and add 
 thereto the words, ly affidavit; and the pro- 
 dudion of fuch affidavit properly fvvorn to 
 anil figned, fliall be, and is hereby declared 
 to be a full and fufficient authority, warrant 
 and indemnity to the clerks, officers or com- 
 miffioners for delivering in confequence there- 
 of, fuch will, codicil, packet or parcel as afore- 
 faid, againft all perfons vvhomfoever. 
 Manner of lie- Provided always, and it is further declared 
 iivcnnKout ^^■^^\ cnadcd by the authority aforefaid, That 
 dVaihutuftaior. aftcr thc death of any j^erfon, who ffiall liave 
 
 io
 
 [ '75 ] 
 
 lb depofited his or her will, codicil, teftament- 
 ary difpofition or inftru6lions as aforcfaid, no 
 luch will, codicil, teftamentary difpofition nor 
 inftru6lions fliali be delivered unto any perfon or 
 perfons bringing fiich label or flip of parchment 
 fo indented, ftamped, and figned as aforefaid, 
 until a certificate of the burial of fuch perfon fo 
 having died, fliall have been produced, figned 
 by the minifter or pried of the parifh or place 
 where he fhall have been buried; or in cafe 
 of accidental death or no burial, until an af- 
 fidavit of the death fworn before a proper ma- 
 giftrate or magiftrates of the place or country, 
 where fuch perfon fhall have fo died without 
 having been buried, fhall have been produced s 
 and upon the produ6lion of any fuch certifi- 
 cate or affidavit, the clerks, officers or conn- 
 milTioners, and their deputy or deputies, are 
 hereby i^equired to open fuch will, codicil, 
 teftamentary difpofition or inftru6tions as afore- 
 faid, in the prefence of the perfon or perfons 
 producing fuch label or flip of parchm.ent fo 
 indented, ftamped, and figned as aforefaid, 
 together with fuch certificate or affidavit -, 
 and in cafe it fhall appear, that fuch perlbnFeeofas. 6d.t« 
 or perfons is or are intitled under fjch will p^.^-J^jf ^^/^J^*__ 
 or codicil, either as executor or executrix, or i"s the wui. 
 • executors or otherwife, to the pofTefTion of 
 fuch will, codicil, teftamentary difpofition or 
 inftruftions, in order to prove or inrol the 
 fame, then the fame ftiall be delivered to 
 fuch perfon or perfons accordingly, upon pay- 
 ment of the fum of is. 6d. unto the faid 
 officers, clerks or commiflloners. 
 
 Provided neverthelefs, and it is further de- to whom wiiis 
 Glared and enafted by the authority aforefaid, ["J.'^f^^of'no^''' 
 That any perfon or perfons producing fuch certificated au- 
 certificace or affidavit of the burial or death of ''''^'"''y ^°^"'^- 
 
 any
 
 t >76 ] 
 
 any perfon to the faid clerks, officers or com- 
 miflioners, although no fiich label or flip of 
 parchment, indented, ftampt and figned as 
 aforelaid fhall have been found in the pofTef-*, 
 fion of the perfon fo deceafed, fhall be intitled. 
 Ami for what ipon paying the fum of one fhilling to the 
 faid clerks, officers or commifljoners, to fearch 
 all the books, in which any fuch entries have 
 been made as aforelaid ; and in cafe any fuch 
 will, codicil, teftamentary difpofition or in- 
 llruftions fhall be found to have been there 
 left and depofited by the perfon lb deceafed, 
 the fame fhall immediately be opened and de- 
 livered upon payment of the additional funi 
 of IS. 6d. to the faid clerks, officers or com- 
 miffioners in manner aforefaid. 
 To whom wills Provided neverthelefs, and it is further de- 
 ivbeV'nreS clared and enafted by the authority aforelaid, 
 ^utor. That in cafe the perfon or perfons fo producing 
 
 fuch label or flip of parchment, and fuch cer- 
 tificate or affidavit as aforefaid, fhall not ap- 
 pear to be intitled to the pofTelfion of fuch will, 
 codicil, teftamentary difpofuion or inftruftions, 
 then the clerks, officers or commiffioners, fhall 
 immediately give notice in writing to the exe- 
 cutor or executrix, or executors in fuch will 
 or codicil named ; or in cafe of none fuch, to 
 the perfon or perfons who fhall appear to be 
 intitled to the greateft beneficial interefl under 
 the fame, and fliall deliver the fime to fuch 
 perfon or perfons fo rcfpcdcively intitled as 
 aforefaid, or to his, her or their attorney or 
 attornies for that purpofe to be efpecially ap- 
 Ujn.M Pnyncnt pointed in manner aforefaid, upon payment of 
 vt z'..cd. ^^y^ flfillings -and fixpence to the clerks, of- 
 ficers or C(jmmi{fioners, in order that the lame 
 may be forthwitii proved or inroUcd as the law 
 may recjuirc. 
 
 Provided
 
 [ i"7 ] 
 
 Provided always, and it is further declared Entries to i.i 
 
 and enafted by the authority aforeGiid, That,";iVoft 
 whenever after the death of any fuch teflator delivery, and to 
 or tellatrix, any fuch will or codicil, tefta- ^^^"'^* 
 mentary difpofition or inflrii6tions, fhall be 
 delivered out of fuch office or repofitory, 
 the perfon or perfons, to whom the fame fliall 
 be delivered, fhall write his, her or their 
 name or names in the margin of fuch book, 
 oppofite to the entry thereof as aforefaid, with 
 fuch addition, as intitles him, her or them to 
 the pofleffion of fuch will, codicil, teftament- 
 ary difpofition or inlfruclions. 
 
 Provided neverthelefs, and it is further de- wiiistobefeai- 
 clared and enaeled by the authority aforefaid, ^;^f"/^]y''^" "^^'^ 
 That all fuch wills, codicils, tcftamentary dif- 
 pofitions or inftruftions, fhall, before they are 
 ib depofited and entered as aforefaid, be co- 
 vered with paper or parchment, anci fealed by 
 the perfon or perfons depofiting the fame. 
 
 And it is further declared and enafted by The oath to be 
 the authority aforefaid, That the faid clerks, '"''•'" X \''., 
 
 J _ ' . ^ o[)cii wills, till 
 
 officers or commiffioners appointed as afore- the jdiequiics 
 faid, and all deputies, whom they may em-"* 
 ploy in the execution of the faid charge, of- 
 fice or coip.miirion, fliall, before he or they 
 fhall refpe^lively ad therein, take and fub- 
 fcribe an oath before any one of the Judges of 
 his Majefly's courts of record at Weftminlter, 
 who are hereby authcu"ized and impowered to 
 adminifter the fame in the form following, 
 that is to fiy : 
 
 *' I A. B. do folemnly fwear, that I will 
 " not open, nor permit nor procure to 
 ** be opened, any packet or parcel, con- 
 " taining, or fuppofed to contain, any 
 " will, codicil, tcftamentary difpofition 
 " or inftruclionSj depofited or to be de- 
 N " pofited
 
 [ '78 1 
 
 " pofited in the reference office, by vir- 
 " tue of or under an a6l of parliament 
 " made and pafled in the twenty-ninth 
 " year of the reign of his prefen: Majefty, 
 " intituled, " y^n a5i for requiring the. 
 *^ inrolment of all deeds ^ wills and codi- 
 " cils relating tOy touching or affecting 
 *' any freehold and leajehold lands, te- 
 *' nements or hereditaments within the 
 " kingdom of England and dominion of 
 " IValeSy and for other purpofes therein 
 " mentioned/' vvhilft 1 Ihall continue to 
 " aft as clerk, officer or commiffioner 
 " thereof, (or as deputy to fuch clerk, 
 " officer or commifTioner) but only in 
 " fuch cafes in which the faid aft direfts 
 " the fame to be opened. 
 
 " So help me God." 
 
 Counterfeiting And it is hereby further declared and enaft- 
 hand^'ntings' ^^1 by the authority aforefiid. That if any perfon 
 of the clerks, or perfons fhall forge or counterfeit the name 
 *°'^^' or handwriting of any fuch officer, commif- 
 
 fioner or clerk, or his deputy or deputies, or the 
 ftamp or fealof the faid office, which fliall have 
 been made on fuch label or flip of parchment in 
 manner aforefaid, according to the requifitions 
 of and by virtue of this aft, in order to procure 
 the delivery or pofTeffion of any fuch will or 
 codicil, teftamentary difpofition or inftruc- 
 tions fo depofited in the faid office or repo- 
 fitory as aforefaid, then every fuch perfon or 
 perfons fo offi^^nding, being thereof lawfully 
 convifted, fhall be adjudged a felon or felons, 
 and ffiall fuller death as in cafes of felony 
 ■without benefit of clergy. 
 
 O^/er- 
 
 li
 
 [ '79 ] 
 
 Ohjervations upon the Draught of the Bill, 
 
 T Beg leave generally to premife, that as my pri- 
 mary view in this publication, was to fupply my 
 readers with fufficient matter, to enable them to 
 form a fatisfaclory judgment upon the fubjedj fo 
 mud I entreat them to confider the draught of the 
 bill as framed purpofely for the fuggeftion of 
 amendments by thofe, who will take it under their 
 confideration ; for facile eft inventis addere. The 
 leading principles of the bill, and the moft material 
 provifions in it, are the immediate confequences of 
 the do6lrine, which I have attempted to eftablifh. 
 I cannot therefore be called upon to repeat, what 
 may already appear to fome to have been too dif- 
 fufely treated \ though in didactic explanations 
 and arguments upon profefTional matters, written 
 for nonprofeffional readers, I conceive it to be 
 the duty of the writer to omit nothing, which can 
 tend to throw light upon the fubje6t. 
 
 Although it be not very ufual, I hope it will be 
 thought very proper, in altering and amending 
 a law, to repeal all afts, which afFe6t the law re- 
 quiring fuch alteration and amendment. There 
 will then arife a general afllirance and fecurity, 
 that nothing can affc6l the law in queftion, which 
 does not appear upon the face of that ad, which 
 undertakes openly to improve and afcertain it. 
 
 It is to be obferved, that the bill extends 
 the inrolment to deeds and wills affeding all lands, 
 (except copyhold and cuftomary lands); for as 
 they are always paffed or affeded with notoriety in 
 the manor court, which generally is attended with 
 
 N 2 fomc
 
 [ i8o ] 
 
 fome benefit or advantage to the lord of the 
 manor, it will not be found juft nor reafonable to 
 infringe the private rights of individuals by fuper- 
 inducing a public neceffity over the private requi- 
 fition, from v^'hich the benefit arofe to the indivi- 
 dual. But there cannot be a fhadov/ of pretence, 
 why the inrolment (hould not affeft leajehold, as 
 well as freehold lands ; for there certainly may be 
 more opening to fraudulent and clandeftine pre- 
 conveyances and deceit, in the paffing, altering 
 and changing of leafehold, than of freehold eftates, 
 becaufe at prtfcnt lefs notoriety attends the former 
 than the latter. 
 
 The payments direfted to be made to the per- 
 fons figning the warrants, 7?^/-f, or dire6lions for in- 
 rolment, are regulated according to the prefent 
 ufa^ies ; and in the fame proportion all the other 
 payments throughout the bill are framed. 
 
 The provifions made for fecuring the proper 
 number of ftamps to each deed and v/ill inrolled, 
 is a matter which affcds the finance, m.ore than the 
 reoulation of the law of the country. There can- 
 not be a doubt, but that the legiflature in pafling 
 the 20:h of his prtfent Majefty meant, that there 
 ihould be a ftamp for each fl<;in of fifteen common 
 law llicets ; and it is well known by experience and 
 praftice, that ftveral of the mofl reputable perfons 
 of the profclTion, make it a general pradice to in- 
 fcrt a grc ater number of words in the fliin under 
 one (lamp, than evidently the ad: of parliament in- 
 tencVd flioidd be allowed or permitted. This aifb^ 
 which undertakes to regulate and afcertain the 
 matter, docs not pofitively enacSl, that fuch a quan- 
 tity of words fliall be coiifined to one ftamp ; but 
 that, if any perf^.n having charged his client for in- 
 grolTing m.ore, than fifteen common law folios un- 
 der one ilamp, Ihall be oix'n to an information, and 
 
 ' ^ liable
 
 [ ,8i ] 
 
 liable to a penalty of twenty pounds. Novy, as 
 mod deeds at preient are fecret conveyances, and 
 not expofed to public infpeftion, this is a matter, 
 which ieldom extends beyond the knowledge and 
 privacy of the Ibllicitor and client; but how 
 impoflible is it, that the former fliould lodge an 
 information to profit of his own inattention to or 
 nonobfervance of the law ? And how improbable, 
 that the latter fhould inform againft his own folli^ 
 citor, for having favcd him a confidcrable expence 
 by evading the duty upon fhamps? The only 
 fecure method of compelling perfons to ufe a pro- 
 per number oi ftamps to a given number of 
 words, is by invalidating the deed, if it be not 
 properly ftamped : diis would give occafion to 
 much altercation and fufpicion amongft indivi- 
 duals, if it were made to depend upon their fcru- 
 tiny and judgment ; therefore the clerks of the in- 
 rolment office, are made the judges of the fa6t, 
 and their judgment is rendered liable to very heavy 
 penalties, upon information within a reafonable 
 limitation of time. The vigilance therefore of the 
 clerks will prevent the revenue from being injured, 
 and the a6tual inrohiient of deeds, wills and codi- 
 cils, will fecure individuals from any rifk or danger 
 of their becoming invalid, from a want of the pro- 
 per number of ftamps. 
 
 As die credibility and refponfibilityof the officers, 
 clerks or commiffioners of the different cou-ts or 
 offices, are objefts which ought to be well attend- 
 ed to, and as all popular elections are conftantly 
 attended with diflention, diffipation, and m.any other 
 difadvanrao;es and inconvcniencies, I have vcn- 
 tured to fuggeft a new mode of election, upon this 
 principle, that a perfon chofen by the majority of the 
 reprefentatives o: the country, will be more imparti- 
 9,lly and quietly elcded, than in any other manner: 
 
 for
 
 [ >82 J 
 
 tor it is to be prefiimedj that party influence, familr 
 and pecuniary confidcrations, or other private vievv's 
 of partiality, will not operate fo forcibly upon the 
 members of parliament, as they maybe fuppof^d to 
 do upon other individuals, more clofely conneded 
 with the perfons likely to be chofen. 
 
 It would be harfli and unjutl to deprive the pre- 
 fcnt Yorkfhire regiftcrs of their appoiriLments; and 
 if reafonable for others, it would be abfurd net to 
 have this county adopt the general mode of elec^ 
 tion in future. 
 
 If, however, this mode of election be not re- 
 lifhed, there is nothing more eafy, than to fubftitute 
 that in its lieu, which now prevails in the county of 
 York. 
 
 As to Middlefex, as the officers and clerks arc 
 now in the nomiination of the heads of the four 
 courts of records, it would be very unjuft and un- 
 warrantable to deprive fuch refpeftable charadters, 
 as fill thefe employs, of that patronage,, which has 
 iifually been annexed to th.eir ofnces ; and as in fu- 
 ture more bufinefs will certainly come through thefe 
 offices by the inrolment, than by the regiftry of 
 deeds and wills, the patronage v;ill be proportiour 
 ably greater, than it has heretofore been. 
 
 As London is the center of mioft money tranfac- 
 tlons negociated in this nation, it is needlefs to ftate 
 a reafon, why a reference office fhould be fixed 
 there, rather than in any other place j and the pro- 
 priety of its txiftence will fully appear, from the 
 many occafions, which occur in London of fearch- 
 ing for the inrolment of deeds and wills inrolled in 
 diftant counties ; and much delay, doubt, and ex- 
 pence will be avoided, by the order and regularitj' 
 of fuch reference books : there is no public office 
 or confervatory, which has not within itfelf fuch 
 books of reference i die utility and advantage of 
 
 which.
 
 [ 1^3 ] 
 
 vvhich, are fdlly known and felt by all perfons, who 
 have occafion to make fearches amongfl; public 
 archives and records. 1 fhall then lay no more 
 upon the fiibjeil, than that, if there be county 
 i'nrolment offices, or courts eftablifhed, there fliould 
 alfo be national books of reference to them, in or- 
 der, as much as poffible, to concenter into one point 
 the whole knowledge, that is intended and required 
 to be conveyed to the public, by recording all deeds 
 and wills affeding lands. 
 
 I know many inilances, in which wills have been 
 fuppreflcd after the deaths of the teftators, by the 
 perfons, into whofe poffefiion they fell ; but I need 
 not enter into a detail of the very ferious confe- 
 quences, which may thereby happen to the perfons 
 intereiled under fuch wills. Many cafes have hap- 
 pened, and poffibly many more may happen, in 
 which wills have been, and may be altered, miflaid 
 and deftroyed, wilfully and by accident. And 
 therefore, as I have endeavoured to fuggefl: a plan 
 of general pradlical utility, refped:ing deeds and 
 devifes, I have confidered it as an extenfion of that 
 plan, to provide a fafe confervatory, v/here all per- 
 fons expofed to travel, either by fea or land, having 
 no fixt refidence, or no fecure repofitory within that 
 refidence, or diffiding in thofe, who either during 
 their lives, or after their deaths, may have accefs 
 to their private papers, may depofit their wills with 
 fafety, where they will be preferved in fecrecy, and 
 from whence they will be delivered out to fuch 
 perfons only, who will be intitled to receive them. 
 As there is no eftabliHiment of the nature elfewhere 
 in the kingdom, I have from my own ideas, endea- 
 voured to chalk out a plan of fuch order, regu- 
 larity, and conveniency in it, as I think will bed 
 anfwer the intended purpofes. 
 
 2 Coa-
 
 [ i84 J 
 
 Convinced as I am, and long have been, that 
 a general Inrohnent A61 will be of very effen- 
 tial benefit to the nation, I claim that indulgence 
 from my readers, which a generous public will ever 
 allow to every krious atteinpt to ferve one's coun- 
 try ; to do which will ever be the firft ambition of 
 my life. 
 
 F I N J S.
 
 
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