Bankruptcies superseded.-Bankrupts.

CHANGES MADE IN THE LAW IN,
THE LAST SESSION OF PARLIA-
MENT, 1833.

No. VIII.

THE FINE AND RECOVERY ACT.
3 & 4 W. 4. c. 74.

ONE of the most important acts passed in the
last session of parliament, is the Act for the
abolition of Fines and Recoveries. The ex-
istence of these fictitious assurances has long
been considered a considerable hardship, and
some simpler plan for effecting the objects for
which they were employed, has long been
called for. This is now given by the present
act; and we shall briefly state its provisions.

lands therein comprised (s. 5). And it further enacts, that the tenure of ancient demesne, where suspended or destroyed by fine or recovery in a Superior Court, shall be restored in cases in which the rights of the lord of the manor shall have been recognized within twenty years (s. 6).

By the present law, if any error is made in the description of the names of the parties to a fine or recovery, or of the parcels thereby conveyed, application must be made to the Court of Common Pleas, for the purpose of having the fine or recovery amended. ̄Under the present act this will be no longer necessary, as fines and recoveries are made valid without amendment in these particulars (s. 7 and 8).

Provision is next made for the records of fines and recoveries in the Courts of Common Pleas at Westminster and Lancaster, and the Court of Pleas at Durham, after the 31st of December, 1833 (s. 13).

Estates tail could also be barred by the doctrine of warranty. By the present act, they will no longer be so (s. 14).

Recoveries are also made valid in certain cases where bargain and sale is not duly inIts first enacts, that no fine or recovery shall rolled (s. 10). And recoveries invalid in conbe levied or suffered after the 31st of Decem-sequence of there not being proper tenants to ber, 1833 (s. 2). And that persons liable after the writs of entry, are also made valid in certhe 31st December, 1833, to levy fines or suffer tain cases (s. 11). recoveries under covenants may effect the purposes intended by means of this act; but in any case where the purpose of a fine or recovery cannot be so effected, the persons liable to levy fines or suffer recoveries, shall execute a deed, which shall have the same operation as the fine or recovery (s. 3). It then provides for fines and recoveries of lands in ancient demesne, and enacts that fines and recoveries of lands in ancient demesne, when levied or suffered in a Superior Court, may be reversed as to the lord by writs of deceit, the proceedings in which are now pending, or by writs of deceit hereafter to be brought, but shall be as valid against the parties thereto, and persons claiming under them, as if not reversed as to the lord (s. 4). And that fines and recoveries of lands in ancient demesne, levied or suffered in the Manor Court, after other fines and recoveries in a Superior Court, shall be as valid as if the tenure had not been changed (s. 5). And provides, generally, that fines and recoveries shall not be invalid in other cases, though levied or suffered in Courts whose jurisdictions may not extend to the

NO. CLXVI,

Having thus disposed of fines and recoveries, the act proceeds to enable tenants in fee simple, or for a less estate, to dispose of their estates (s. 15). But the power of disposition is not to be exercised by women tenants in tail ex provisione viri, under 11 H. 7. c. 20, except with assent (s. 16). And except as to lands in settlement before this act, the act 11 H. 7. c. 20, repealed (s. 17).

The power of disposition is not to extend to tenants in tail, where the reversion is in the crown (s. 18).

After the 31st December, 1833, persons holding base fees may enlarge them (s. 19). The issue inheritable are not enabled to bar expectancies (s. 20).

2 F

Changes in the Law during the last Session of Parliament.

And as a check against improvident alien- | without his consent (s. 48); and the order of ation, a "protector of the settlement" is created the Lord Chancellor is to be evidence of conby the act; and it is enacted, that the owner of sent (s. 49). the first existing estate under a settlement, prior to an estate tail under the same settlement, is to be the protector of the settlement. (s. 22.)

Changes in the Law.-Legal Biography, No. III.

and where money is subject to be invested in like manner (s. 71).

Lands of any tenure in Ireland, to be sold, where the purchase money is subject to be invested in the purchase of lands to be entailed, and money under the control of a court of equity in Ireland, subject to be invested in like manner, to be subject to this act in cases of bankruptcy (s. 72); and the former acts relating to money directed to be entailed, 39 & 40 G. 3. c. 56, and 7 G. 4. c. 45, are repealed (s. 70). Every deed to be inrolled by which lands or money shall be disposed of under this act, is to take effect as if inrolment not required (s. 74). The Court of Chancery is to regulate the fees to be paid for the inrolment of deeds, &c. (s. 75).

The Court of Common Pleas is to regulate the fees for entries on court rolls and indorsements on deeds, and for taking consents (s. 76). The other great object of fines and recoveries, and more particularly of the former assurance, was to enable married women to dispose of their lands. It was therefore necessary to provide for them by the present act; and it is therefore enacted, that a married woman, with her husband's concurrence, is to dispose of lands and money, subject to be invested in the purchase of lands, and of any estate therein, and to release and extinguish powers, as a feme sole (s. 77). But the powers of disposition given to a married woman by this act, not to interfere with any other powers (s. 78).

435

The Chief Justice of Common Pleas is to appoint the officer with whom the certificates shall be lodged, and the Court to make orders touching the examination, memorandums, certificates, affidavits, &c. (s. 89).

A married woman is to be separately examined on the surrender of an equitable estate in copyholds, as if such estate were legal (s. 90).

The Court of Common Pleas in the case of a husband being lunatic, may dispense with his concurrence, except where the Lord Chancellor, or other persons intrusted with lunatics, or the Court of Chancery, shall be the protector of a settlement in lieu of the husband (s. 91).

LEGAL BIOGRAPHY.
No. III.

CHIEF JUSTICE COKE.

[Concluded from page 394.]

WE proceed now to give an account of the writings of Sir Edward Coke, and to sum up his character as an Author and a Judge.

'His learned and laborious works on the

Laws," says Fuller (in his "Worthies "), "will be admired by judicious posterity, while Fame has a trumpet left her, and any breath to blow therein." We shall enumerate his works in the order of their The Judge, before receiving such acknow-publication, and offer a few examples of his ledgments, to examine her apart from her hus-style and composition. band (s. 80).

Every deed by a married woman, not executed by her as protector, to be acknowledged by her before a Judge, &c. (s. 79).

Perpetual commissioners for taking such acknowledgments, are to be appointed for each county or place, and the making out and keeping of the lists of the commissioners, and the delivery of copies (s. 81).

Power of perpetual commissioners not confined to any particular place (s. 82).

If, from being beyond seas, &c., a married woman be prevented from making the acknowledgment, special commissioners to be appoint

ed (8.83).

When a married woman shall acknowledge a deed, the person taking the acknowledgment to sign a memorandum to the effect here mentioned (s. 84).

And also sign a certificate of the taking of such acknowledgment, to the effect here mentioned (s. 84). And certificates with affidavit, verifying the same, are to be lodged with some officer of the Court of Common Pleas, who shall cause the same to be filed of record in the Court (s. 85).

On filing certificate, the deed by relation to take effect from time of acknowledgment (s. 86).

The officer with whom the certificates are

lodged, is to make an index of the same (s. 87); and deliver a copy of certificate, filed, which shall be evidence (s. 88).

With this view, we have first to notice "The Reports," as by way of eminence they are styled, the first part of which was published in 1600. It is called (though he was not then knighted) "Reports of Sir Edward Coke, Knight, Her Majesty's Attorney General, of divers Resolutions and Judgments given with great deliberation by the reverend Judges and Sages of the Law which were never resolved or adjudged before: and the reasons and causes of the said Resolutions and Judgments, during the most happy reign of the most illustrious and renowned Queen Elizabeth, the Fountain of all Justice and the Life of the Law."

Ten more parts were afterwards published, during the lifetime of Coke; the last in the year 1615, while he was Chief Justice of the King's Bench. Two Supplementary Books were added after his death.

We have already mentioned (p. 393) that on the dismissal of Coke from his office of Chief Justice, he was enjoined to revise his Reports. After three months, he gave a list of such errors as he had detected; but they were generally of a verbal kind, and

of little importance. Five of the special
cases, however, were selected as the ground
of charge against him. These were all an-
swered by Coke to the satisfaction of all
who understood the matter in dispute; and
it appears, indeed, that his adversaries were
ashamed of the task imposed on them. The
subject was afterwards renewed when Bacon
was Lord Chancellor, and Coke demanded
that the matter should be openly inves-
tigated before the twelve Judges, and that
they might at the same time certify what
cases he had published, for the main-
tenance of the royal perogative and benefit,
for the safety and increase of the revenues
of the church, and for the quieting of men's
inheritances, and the general good of the
commonwealth." This was requiring the
whole truth to be found; and his enemies
thought it prudent to abandon the inves-
tigation. Bacon did him the justice to say,
that had it not been for Sir Edward
Coke's Reports (which, as he said, though
they may have errors and some peremptory |
and extra-judicial decisions, more than are
warranted, yet they contain infinite good
decisions and rulings of cases,) the law by
this time had been almost like a ship with-
out ballast; for that the cases of modern
experience are fled from those that are ad-
judged and ruled in former time."

In 1614 he published his Book of Entries.

In 1628 his first Institute, or Commentary on Littleton, appeared. He was then in his seventy-eighth year. This, as our readers are generally aware, is a Commentary on Judge Littleton's Treatise of Tenures, written in the reign of Edward 4, and which Coke calls "the ornament of the common law, the most perfect and absolute work that ever was written in any human science." Sir William Jones described it as "the English Lawyer's great master," and in its composition, remarkable for "luminous method, apposite examples, and a clear, manly style, in which nothing is redundant, nothing deficient."

"

him in a ready way to the knowledge of the National Laws of England." "This work we have called the First Part of the Institute, for two causes: first, for that our author is the first book that our student taketh in hand: secondly, for that there are some other parts of Institutes not yet published, viz. the Second Part, being a Commentary upon the Statute of Magna Charta, Westminster 1st, and other old Statutes. The Third Part treateth of Criminal Causes and Pleas of the Crown: which three parts we have, by the goodness of Almighty God, already finished. The Fourth part we purposed to be of the Jurisdiction of Courts; but hereof we have only collected some materials towards the raising of so great and honorable a building. We have, by the goodness and assistance of Almighty God, brought this twelfth work to an end: in the eleven books of our Reports, we have related the opinions and judgments of others; but herein we have set down our own."

Several of his works were not published until after his death. They appeared in the following order: A Treatise of Bail and Mainprise, in 1637; the Complete Copyholder, in 1640; the Second, Third, and Fourth Parts of his Institutes, between 1642 and 1644, inclusive; and the Reading on the Statute of Fines, 27 Edw. 1, in 1662.

His descendant, Mr. Coke of Norfolk, is in possession of the following unpublished manuscripts of Coke :

A curious Statistical Account of England; and

A Treatise concerning the Nobility of England, according to the Law of England.

The original Manuscripts of the Book of Entrics, and of the Reports in Law French, are also in the collection, as well as the Report of Shelly's and Calvin's Cases, in the handwriting of Coke.

We proceed now to make some extracts from the works before us, which will afford a specimen of the authorship of Coke, and the style and manner of composition of the age in which he lived.

It is observed by Blackstone, that Coke's Institutes have little of the Institutional method to warrant such a title, and that The same spirit which characterized the the Commentary, though a rich mine of divines and metaphysicians of the time, exvaluable common law learning, is particu-tended itself to law writers. The most larly remarkable for deficiency of method. The best answer that can be given to this criticism is by Coke himself, who thus describes the object of his work:

formal and minute subdivision of every subject was adopted, and quaint and fanciful reasons were attempted to be assigned on every occasion. Thus, in the Commentary "I have termed them Institutes," he on Littleton, after going through various says, "because my desire is they should other kinds of tenures and services, he proinstitute and instruct the studious, and guide | ceeds to " socage," which he classes under