Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.

13. E. 1. Cap. 1.

In gifts in tail the donors Will shall be observed.

FIrst concerning Lands, that ma∣ny times are given upon condi∣tion, that is to wit, where any giveth his Land to any Man and his Wife, and to the Heirs begotten of the bo∣dies of the same Man and his Wife, with such condition expressed, that if the same Man and his wife die without Heirs of their bodies be∣tween them begotten, the Land so given should revert to the giver or his Heir. In case also where one gi∣veth Lands in free marriage, which gift hath a condition annexed,

though it be not expressed in the deed of gift, which is this, That if the Husband and Wife die without Heir of their bodies begotten, the Land so given shall revert to the gi∣ver or his Heir. In case also where one giveth Land to another, and the Heirs of his body issuing, it seemed very hard, and yet seemeth to the givers and their Heirs, that their Will being expressed in the gift, was not heretofore, nor yet is observed.

In all the cases aforesaid, after is∣sue begotten and born between them (to whom the Lands were given un∣der such condition) heretofore such Feoffees had power to alien the Land so given, and to disherit their issue of the Land, contrary to the minds of the givers, and contrary to the form expressed in the gift. And further, when the issue of such Feo∣ffee is failing, the Land so given,

ought to return to the giver, or his Heir, by force of the gift expressed in the deed, though the issue (if any were) had died: yet by the deed and Feoffement of them (to whom Land was so given upon condition) the donors have heretofore been barred of their reversion, which was directly repugnant to the form of the gift.

Wherefore our Lord the King, perceiving how necessary and expe∣dient it should be to provide reme∣dy in the foresaid cases, hath or∣dained, That the will of the giver, according to the form in the deed of gift manifestly expressed, shall be from henceforth observed: So that they, to whom the land was given under such condition, shall have no power to alien the land so given, but that it shall remain unto the is∣sue of them to whom it was given

after their death, or shall revert un∣to the giver, or his Heirs, if issue fail (whereas there is no issue at all) or if any issue be, and fail by death, or Heir of the body of such issue failing, &c.

And if a Fine be levied hereafter upon such Lands, it shall be void in the Law, and no claim needs, &c.

Here I have faithfully cited you the Stat. word for word; and what the common Law was before the making of this Stat. is apparent. Estates now by force of that Stat. called intails were at the common Law Fee-simple conditional. So that a man having such an Estate be∣fore this Stat. had power after issue had, to alien, and by that to barre the issue, and likewise him in reversion, and this is said by the Stat. expres∣ly to be contrarie to the minds of the

givers, and contrary to the form ex∣pressed in the gift, and this was the great mischief at the common Law.

Then comes this Stat. and pro∣vides against the said mischief, that the Will of the donor shall be ob∣served, and that such donees in tail shall have no power to alien to barre their issues, or him in reversion.

Now certainly the best way of Argument is upon the Law it self, and that is pregnant and plain, that the donee after this Stat. had no power to alien to barre his issue, or him in reversion.

Now I beseech you to what end was this Stat. if notwithstanding a donee in tail might by a Recovery barre his issue and him in reversion; certainly had any such thing been known then, as a Recovery, it would have been provided against as well as a fine, or otherwise a man

might well question the wisdom of the makers of the Law, notwith∣standing they have received so great an applause by our Sages of the Law.

The Law hates vain and unprofi∣table things; and had Recoveries been known then, and not provided against, certainly no Law could be more vain and unprofitable.

But now to come to Marie Por∣tingtons case in Cooks tenth Book, where this case is largely debated; there you shall find the Original of these common Recoveries. There by those that argued against them, 'tis said that 't was not invented till 12. E. 4. Taltarum's case, that such Recoveries should bind the Estate tail upon a pretence of a fained re∣compence.

To which it was said by the Court upon judgement given, that

judgement given against Tenant in tail, with voucher and recompence in value, shall bind the Estate tail, notwithstanding the said Act of 13. E. 1. be the Recovery upon good Title, or not; and that the judgement given in such case for the Tenant in tail to have in value binds the Estate tail, though that no recompence be had.

And this they say was Law in E. 3. time, for which they cite these Books (but here observe by the way, that those Recoveries were not invented before that time, as themselves do agree, and of what validity such new invention can be against a Stat. ex∣presly against any alienation in such case, let any rational man judge.) but for the cases they have cited, 15. E. 3. Tit. brief. 324. by Recovery in value by Tenant in tail, the Estate tail is barred, and he shall have a Form∣don

of the Land so recovered in value, with which agrees 42. E. 3. 53. and 44. E. 3. 21, 22. Octavian Lumbards case, Tenant in tail grants a rent charge to one who hath right to the Land in tail for a release, it shall bind the issue, 48. E. 3. 11. b. Jeffrey Benchers case recovery in va∣lue by Tenant in tail, shall bind the tail, and a Formdon lies of the Land recovered in value, with which agrees. 1. E. 4. fol. 5. 5. E. 4. 2. 6.

For these Books thus cited, that such recovery shall bind the issue in tail; they are to be understood of a recovery upon good Title, and of a real, not a fained recompence, for they all agree, that a Form-don will lie of the Land recovered in value; So that it cannot be intended of a fained and pretensed recompence. I would fain know of any man, whe∣ther ever he heard of any Action

brought upon such recovery in va∣lue, as recoveries are now used? are they not become the common course, and common way of con∣veyance for to barre Estates in tail, and to cut off all remainders, without any possibility or expectance of recompence in value? and do not the Judges say before that it shall bind be it upon good Title, or not, and though that no recompence be had? so that a pretensed recompence by them must carry away a clear Title, and defeat the Stat. and the intention of the donor? So that I do conceive, notwithstanding those Books, that such recoveries should bind the Estate tail upon a pretence of a fained recompence, was not till 12. E. 4. Taltarums case.

And the case of Octavian Lum∣bard, before cited agrees with this difference, between a real, and a

fained recompence; for I do agree, that a recovery upon good Title, and a real recompence will barre the Estate tail. The case of Lumbard, that a grant of a Rent by Tenant in tail to one that claims a right to the Land intailed, shall barre the issue, is, without question, good Law, for this is to preserve the Estate tail, and this is no fained but a real re∣compence; not so in our case.

Besides, suppose those Books should be intended (as I conceive they cannot) of a fained recompēce; can any man say that any use or cu∣stom is good against a Stat. had such fained recoveries been in use at the time of the making of the Stat. of 13. E. 1. which no man doth, or can say, somewhat more might have been said for them; but being in∣vented after, it cannot be with rea∣son that they should be of force to

frustrate, yea, and nul, upon the mat∣ter, the Stat. made before: and cer∣tainly (as I have said before) the makers of that Law would have provided against this mischief as well as Fines, had such recoveries been then in being, for otherwise vain and fruitless was that Law, as indeed it is at this day.

Again, by those that argued against common recoveries in Marie Por∣tingtons case; it is said, that such re∣coveries are by divers Acts of Par∣liament marked and branded with the blemish of fiction and falsity; as in the Stat. of 34. H. 8. cap. 20. they are stiled fained and untrue recove∣ries; and so in the Stat. of 11. H. 7. cap. 20. 32. H. 8. cap. 31. and 14. El. cap. 8. they are named covenous, and had by collusion; and therefore it stands with Law and reason to provide for the preservation of re∣versions

and remainders, against such fained and false and covenous reco∣veries.

To this objection, and these Stat. this answer is given; and first it is said, that common recoveries is one of the main pillars, which supports the Estates and inheritances in the State; That is, Reader: they must unjustly, (because contrarie to the Stat. and the Form of the gift) take away one mans inheritance, and esta∣blish or settle it in another, and this is called one of the main pillars of inheritances.

But to the Statutes; for that of 34. H. 8. it is of gifts in tail by the King to his Servants and Subjects, for to incourage others and their is∣sues, and therefore recoveries suf∣fered by such Tenants in tail, are well taxed by Parliament to be fained and untrue, because they

did take away the intention of the King.

To which I answer, that they are so termed by that Stat. not in rela∣tion onely to the defeating of the Kings intention, but because they are so in themselves fained and untrue. Besides are they so termed, because the intention of the King was there∣by defeated; why? where there is the same reason, there ought to be the same Law; and in this case, is not the apparent intention of the donor in his gift defeated by such recovery contrary to the Stat. which saith, that the will of the donor shall be observed.

But it is further said in that case, that confirmat usum qui tollit abusum; and that it was a barre in that case before that Act of 34. H. 8. made to the contrarie; certainly if it were an abuse in the Kings case, it is no other

in a common persons, and it were very happy if an Act were likewise made against them in our case; that we might not have them known for the future.

For the Stat. of 11. H. 7. when a Woman advanced by the Husband with a competent joyncture in tail suffers a recovery to barre the is∣sues, this may well be said to be by covin.

Now I beseech you weigh the cases in the ballance of reason, and then judge whether they differ or no. Is it not as much covenous for any Te∣nant in tail who takes such Estate to him and his issues to disherit his issues by such recovery, contrarie to the said Stat.

For the Stat. of 32. H. 8. and 34. El. of a common recovery against Tenant for life; it may well be term∣ed covenous and by collusion. To

this I shall say no more but this, that certainly in our case there is as much of injustice, covin and collusion by suffering such common recoveries, as in any of the former.

Further it was said by those that argued against these recoveries; That that opinion, that a common reco∣very could not be restrained by con∣dition or limitation, was new and of late invention, and never heard be∣fore Sir Anthony Mildmayes case 6. Rep. fol. 40. for it was admitted to be restrained in the case of the Earl of Arundell 17. El. Dyer, fol. 342. 343. and in the argument of Scho∣lasticas case, 12. E. Com. 403. the said point of restraint of a common recovery was never moved: here ob∣serve, Reader, another new inventi∣on, that these recoveries cannot be restrained by any condition or limi∣tation; so that there must be such a

power given to support these reco∣veries, though against the Letter of the Stat. and the Will of the do∣nor, that no humane invention can prevent.

As to the Earl of Arundels case, it is said that nothing is spoken to it by those who argued the case, and so no Authority. To this I say, that certainly had the Law been con∣ceived to be such, that such recove∣ry could not be restrained by condi∣tion, it would have been then urged, which rather concludes on this part.

As to Scholasticas case, all that my Lord Cook sayeth, is this, he much respects the reporter, and attributes due honour and reverence to the Judges, but amicus Plato, amicus Socrates, sed magis amica veri∣tas. Though that it was not then thought on by the learned men of

that time, yet my Lord Cook will have it to be Law, and prefers his opinion, which he calls truth, which truth so called appears to be onely a new invention, before the contrarie supposed Law of that time.

And it is further said in Porting∣tons case, that none ought to be heard to dispute against the legal pillars of common assurances of Lands, and in∣heritances of the Subjects. And it is likewise said, that at a Parliament holden in the raign of Q. E. in Vernon and Herberts case debated before the Lords of Parliament, Hoord Coun∣sel with Vernon invaied against these recoveries; who was then reproved by Dyer, Ch. Just. of the common pleas, who said, that he was not wor∣thy to be of the profession of the Law, who durst speak against com∣mon recoveries, which were the si∣newes of the assurances of inheri∣tances,

and founded upon great rea∣son and Authority; sed non omnis ca∣pit hoc verbum▪

By this you may easily judge what most supported this assurance: for if Lawyers must be silenced, it is no wonder if common recoveries pass for Law. I know I shall not pass uncensured, as I have said be∣fore, Hoords case will be mine, with advantage: but it shall not at all di∣sturb my rest; for having truth of my side, I care not who is against me: and certainly that Councellor that is a Councellor of the Law de∣serves the sharpest reproof; and since non omnis capit hoc verbum, as is said before, let me not be rebuked without reason; and if any one can convince me in that, I shall with all humility submit to his judgement.

Lastly, it is said that D. 8. lib. 1. cap. 26. approves common recove∣ries,

to bind as well in conscience, as in Law.

For my part I conceive that the better opinion there is against them; and so I believe any man will judge that shall read the Chapter, I shall faithfully recite the disputes and leave it to judgement, and therein first the manner and practise of suf∣fering such recoveries; The Deman∣dant shall suppose in his Writ and Declaration, that the Tenant in tail hath no Entry but by such a stran∣ger, where neither the Demandant nor the said stranger never had pos∣session of the Land, whereupon the Tenant in tail shall appear, and by assent of the parties shall vouch the common Vouchee, whom he know∣eth to have nothing to yield in value (now Reader judge whether this be not a meer fiction of a recompence in value,) and the Vouchee shall ap∣pear,

and the Demandant shall de∣clare against him, whereupon he shall take day to imparle in the same Term, and at the day by the as∣sent of the parties he shall make de∣fault, upon which because it is a de∣fault in despite of the Court, the Demandant shall have judgement to recover against the Tenant in tail, & he over in value against the Vou∣chee: And this judgement and reco∣very in value is taken for a barre of the tail for ever by reason of the re∣compence; for by presumption the Vouchee may purchase Lands. Thus you have the practise of a common recovery, which is nothing else but an invention to cut off intails, which hath been the ruin of many a fa∣mily.

But it is reasoned, that although such recoveries, in respect of the multitude of them, be spared, that

they stand not with conscience: fo•• by the Stat. of 13. E. 1. when th•• Ancestor is dead, intailed Lands o•• right belong to the Heir, for that he is Heir according to the gift. If the•• thou be commanded not to covet, 〈◊〉〈◊〉 Fortiori, that thou do not withhold thy neighbours house, &c. And al∣though it may be objected, that tha•• which is ordained by the Law, may be adnulled by the Law, there is not here like Authority for the one, as for the other, for the tail is created by Authority of Parliament the most High Court in the Realm, and the disanulling thereof is by a cove∣nous recovery upon false supposals, (here you have trueth clothed in plain Language.)

Then as to another objection, viz. Communis error facit jus, that is to be understood that a custom used a∣gainst the Law of Man in some

Countrey shall be taken for a Law, if the inhabitants be suffered so to continue it; but these recoveries, al∣though they have been long used, have alwayes been spoken against (Reader, observe that, who ever thou art; and then I am sure I cannot just∣ly be blamed: nor need I care to write against that, which hath been always spoken against.) Also this custom could have no Lawfull be∣ginning, and an evil custom is to be abolished: Also a prescription against a Stat. is void: And it is also moved, that in as much as there is no exe∣cuted recompence that the Law hath been taken, that the Heir in tail is not barred of his Formdon, and although the Vouchee may pur∣chase after the issue hath recontinued his own Land, that herein is no in∣convenience; for that the issue shall be barred of the recompence in va∣lue,

in that he hath recontinued his own land again, and so shall not have both.

I dare not go so far as to allow a Formdon for the issue in such case (though enough hath been said to make that good too) by reason of the many inconveniences that must of necessity fall thereupon, but it were happy (as I have said before) if such covenous and fained recove∣ries were taken away by Act of Par∣liament.

But it may be objected; that you would have Tenant in Fee-simple to have power to dispose two parts, for the reasons and intents aforesaid; and why may not Tenant in tail have the same power?

To which I give this short an∣swer, that it is agreeable with the nature of a Fee-simple to be aliena∣ble;

not so in case of an Estate tail, for that is contrarie to the Form of the gift, as the Stat. is expresly; and there is no power given by that Stat. to the Donee in tail to dispose of the Estate in any case whatsoever; and therefore he may not for the ad∣vancement of his relations, or satis∣faction of his debts, defeat his issue, or in default of issue, those in the remainder, by alienation, contrarie to the Form of the gift, and the in∣tention of the donor.

And now I shall conclude this di∣spute with a rule or two in Law, and first the Stat. said that the Will of the donor must be observed in his gift, which stands with the reason and rule of the Law, for Cujus est dare ejus est disponere; a man must take the gift with those qualifications, conditions, or limitations, that the donor is pleased to annex to it, and

cannot alter it, if so, what becomes of common recoveries? or how in Law or reason can the donee in tail disherit his issues; Note, much less strangers in remainder: as if land be given to A. in tail, the remainder to B. in tail, &c. if A. suffers a recove∣ry, this not onely binds his issue, but him in remainder likewise, which is extream hard and unreasonable, that the Law contrary to the rules of Law it self, should allow a stranger to do an Act to my prejudice, for the rule is, that Res inter alios actae alteri nocere non debent, other mens actions ought not to prejudiee a third per∣son, how then can that stand with this rule of Law, that Tenant in tail should have powr to barre him in re∣mainder by a recovery. Another rule is, Quod nostrum est sine facto vel de∣fectu nostro amitti, seu ad alium trans∣ferri non potest, we cannot lose what

is ours, nor can it be given from us without our own Act or default, how then can it stand with this rule, that he in remainder should be barred by such recoverie as aforesaid? I shall say no more, but wait the Parlia∣ments leasure▪ and I doubt not, but this will in due time be altered.

The next thing I am to treate of, is concerning the imprisonment of mens persons for debt, and in that I shall propose this short question.