HA

SECTION 1.

Matter of
Record.

VING explained the nature and operation of Alienation by deeds entered into by private persons, which derive their effect from the consent of the contracting parties, I shall now proceed to treat of those assurances which are effected by matter of record; that is, where the sanction of a court of record is called in to substantiate, preserve, and be a perpetual VOL. V.

B

Private Act.

of Lords, c. 4 & 10.

testimony of the transfer of property, from one person to another.

3

Assurances by matter of record are, 1. Private acts of parliament; 2. King's grants; 3. Fines; and, 4. Common recoveries.

2. Private acts of parliament derive their origin from the following circumstances. It was a common Hale's Juris. practice, so early as in the reign of Edw. I., for persons to present petitions to parliament for relief in private affairs. These were referred to certain prelates, earls, and barons, appointed at the meeting of every parliament to be receivers and tryers of petitions; who, upon examination of the contents of such petitions, indorsed upon them what course was to be pursued by the petitioners to obtain redress.

1d. c. 12.

Rot. Parl.

N° 78, 79.

3. In those cases where the petitioners might have relief by the ordinary course of law, in the King's courts, the answer was, that the petitioners might sue at common law; and sometimes the petition was referred to the proper court in which the case was determinable: but where the petitioner could have no relief without a new law, made by an act of parliament, either in that particular case, or which might, by a general purview, extend to it, the petition was referred to parliament, and an award was made upon it by the King and the Lords, or by the Lords alone, and sanctioned by the King, which had all the force and effect of a statute.

4. In the first year of the reign of Hen. IV. the vol. 3. 427. Commons indirectly claimed a right of concurring with the Lords in the consideration of petitions, and of joining in the awards made upon them; but the Archbishop of Canterbury told them, in the King's name, that they were only petitioners, and that all judgements appertained to the King and to the Lords,

unless it were in statutes, grants, subsidies, or such like; the which order the King would from that time be observed.

5. It became, however, fully established in the reign of Rich. III. that no award could be made on a private petition, without a formal and complete act of the whole legislature; and therefore, from that period, such awards have been called private acts of parliament; and have been distinguished in the statute book from public ones.

vate.

Dig. Tit.

Parliam.R.7.

4 Rep. 76.

6. A private act is described by Lord Ch. B. Co- What makes myns, to be a statute which concerns only a parti- an Act pricular species, or thing, or person. And in 39 Eliz. it was resolved by the Court of King's Bench, that the statute 21 Hen. VIII. c. 13., by which spiritual persons were abridged from having pluralities of liv- Holland's ings, was a general act; because it concerned the Case, whole spiritualty in general. But it was admitted that the statute 18 Eliz. c. 6. concerning colleges in the two universities, and the colleges of Eton and Winchester, was a private act. It was also observed, that the statutes 13 Eliz. c. 10. and 18 Eliz. c. 11., concerning colleges, deans and chapters, hospitals, parson, vicar, or any other, having any spiritual or ecclesiastical living, were general acts; and that the statute 1 Eliz. concerning leases made by bishops, was 5 Rep. 2a. a private act, because it concerned the bishops only,

who are but a species of the spiritualty.

7. It is said in the same case, that if an act is 4 Rep. 76 a. special which extends ad species, a multo fortiori it is special or particular which extends ad individua. Now, although the matter be special, so that under it there are no individua, yet if it is general as to persons, it is a general act; but if it concerns aliquod singulare seu individuum, although it be general as to

4 Rep. 77 a.

Plowd. 228. 231.

Samuel v.
Evans,
2-Term R.
569.

n.

persons, it will be deemed a private act. So, although
the act, as to persons, be general, but the matter
thereof concerns individua, or singular things, as a
particular manor, house, &c., or all the manors,
houses, &c. in one or sundry particular towns, or in
one or divers particular counties, it is a private act.
8. It is also laid down by the Court in Holland's
case, that every act, although the matter thereof
concerns individua, or single things, yet if it touches
the King, it is a public act; for every subject has an
interest in the King, as the head of the common-
wealth. And it was resolved, in the case of Willion
v. Berkeley, that an act which was made in 35
Hen. VIII., by which all conveyances made by the
Lady Catherine, (Henry VIIIth's queen,) or to her, by
or to the King, should be valid, was a public act.

9. In a public act there may be a private clause, as in the statute 3 Ja. I., the clause which gives the benefices of recusants in particular counties to the universities, is a private act. The statute 23 Hen. VI. c. 9. respecting bail bonds, was for a long time considered as a private act, but in a modern case it was held to be a public one.

10. A private act is not printed or published among the laws of the sessions. It remains, however, enrolled among the public records; and, in general, must be specially set forth and pleaded;

1 Inst. 98 b. otherwise no judge or jury are bound to take notice of it. But it has lately been a practice to insert a clause in acts of a private nature, declaring that they shall be deemed public acts..

11. In modern times, a private act of parliament respecting real property, which is usually called an estate act, is a conveyance or settlement of lands or hereditaments, made under the immediate sanction

of parliament, in cases where the parties are not capable of substantiating their agreements without the aid of the legislature, and where the carrying such agreements into effect is evidently beneficial to the parties.

in which Pri

12. It would be utterly impossible to enumerate Some Cases the variety of cases in which private acts of par- vate Acts may liament may be obtained. A few of them shall, be obtained." however, be mentioned.

13. Where a person is tenant for life, with remainder to his first and other sons in tail, under a will or settlement, and he has either no children, or has children who are under age, if an opportunity offers of selling the estate to great advantage, a private act may be obtained for vesting such settled estate in trustees in fee, discharged from the uses of such will or settlement, upon trust to sell the same, and to lay out the money in the purchase of other lands, to be settled to the same uses.

14. Where a person, having an estate in strict settlement, has an opportunity of making an advantageous exchange with another person, or is desirous of exchanging his settled estate for another estate, whereof he is seised in fee, a private act may be obtained for vesting the settled estate in the person with whom such exchange is agreed to be made, or in the tenant for life himself, in fee simple, and limiting the estate taken in exchange to the same uses to which the settled estate stood limited.

15. Where an estate limited in strict settlement is charged with the payment of a sum of money, a private act may be obtained for vesting the whole, or a competent part thereof, in trustees, in fee simple, upon trust to sell the same, and out of the money to pay off the debts, and to lay out the surplus