6 c. 74. as having been created by such settlement; and, where any 3 & 4 W. 4, such settlement is or shall be made by will, the time of the death of the testator shall be considered the time when such settlement was made: Provided always, that those words and expressions occurring in this clause, to which more than one meaning is to be attached, shall not have the different meanings given to them by this clause in those cases in which there is anything in the subject or context repugnant to such construction.. recovery to after the II. And be it further enacted, That, after the thirty-first No fine or day of December, one thousand eight hundred and thirty- be levied or three, no fine shall be levied, or common recovery suffered suffered of lands of any tenure, except where parties intending to 31st of Dec. levy a fine or suffer a common recovery shall, on or before 1833. the thirty-first day of December, one thousand eight hundred and thirty-three, have sued out a writ of dedimus, or any other writ, in the regular proceedings of such fine or recovery; and any fine or common recovery which shall be levied or suffered contrary to this provision shall be absolutely void. 1 31st Dec. der cove pur poses in means of III. And be it further enacted, That, in case any person Persons liashall, after the thirty-first day of December, one thousand ble after eight hundred and thirty-three, be liable to levy a fine or 1833 to levy fines suffer a common recovery of lands of any tenure, or to pro- or suffer recure some other person to levy a fine or suffer a common coveries unrecovery of lands of any tenure, under a covenant or agree- nants to efment already entered into, or hereafter to be entered into, fect the p before the first day of January, one thousand eight hundred tended by and thirty-four, then and in such case, if all the purposes this act; intended to be effected by such fine or recovery can be ef- but, in any fected by a disposition under this act, the person liable to the purpose levy such fine or suffer such recovery, or to procure some of a fine or other person to levy such fine or suffer such recovery, shall, cannot be after the thirty-first day of December, one thousand eight se hundred and thirty-three, be subject and liable under such liable to levy fines covenant or agreement, to make, or to procure to be made, or suffer resuch a disposition under this act, as will effect all the pur- cov poses intended to be effected by such fine or recovery; but, cute a deed if some only of the purposes intended to be effected by such which shall fine or recovery can be effected by a disposition under this same opera case where recovery so effected, the persons coveries shall exe have the 3 & 4 W. 4, act, then the person so liable to levy such fine or suffer such c. 74. tion as the fine or recovery. Fines and recoveries of lands in recovery, or to procure some other person to levy such fine. or suffer such recovery as aforesaid, shall, after the thirtyfirst day of December, one thousand eight hundred and thirty-three, be subject and liable under such covenant or agreement, to make, or procure to be made, such a disposition under this act as will effect such of the purposes intended to be effected by such fine or recovery as can be effected by a disposition under this act; and, in those cases where the purposes intended to be effected by such fine or recovery, or any of them, cannot be effected by any disposition under this act, then the person so liable to levy such fine or suffer such recovery, or to procure some other person to levy such fine or suffer such recovery as aforesaid, shall, after the thirty-first day of December, one thousand eight hundred and thirty-three, be liable, under such covenant or agreement, to execute, or to procure to be executed, some deed whereby the person intended to levy such fine or suffer such recovery, shall declare his desire that such deed shall have the same operation and effect as such fine or recovery would have had if the same had been actually levied or suffered; and the deed by which such declaration shall be made shall, if none of the purposes intended to be effected by such fine or recovery can be effected by a disposition under this act, have the same operation and effect in every respect as such fine or recovery would have had if the same had been actually levied or suffered; but, if some only of the purposes intended to be effected by such fine or recovery can be effected by a disposition under this act, then the deed by which such declaration shall be made shall, so far as the purposes intended to be effected by such fine or recovery cannot be effected by a disposition under this act, have the same operation and effect in every respect as such fine or recovery would have had if the same had been actually levied or suffered. IV. And be it further enacted, That no fine already levied in a superior court of lands of the tenure of ancient ancient de- demesne which hath not been reversed, and no fine hereafter to be levied of lands of that tenure, shall, upon a writ or suffered of deceit already brought by the lord of the manor of which mesne, when levied c. 74. in a supe versed as in which are now by writs of as valid against the the lands were parcel, the proceedings in which are now 3 & 4 W. 4, pending, or upon a writ of deceit which at any time after the passing of this act may be brought by the lord of the rior court, said manor, be reversed as to any person except the lord of may be rethe same manor; and the court shall order such fine to be to the lord vacated only as to the lord of the said manor; and every deceit the by writs of such fine which may be reversed as to the lord of the said proceedings manor upon such writ of deceit as aforesaid, shall still remain as good and valid against and as binding upon the pending, or conusors thereof, and all persons claiming under them, as deceit heresuch fine would have been if the same had not been reversed after to be brought, by such writ of deceit as aforesaid; and no common reco- but shall be very already suffered in a superior court of lands of the as tenure of ancient demesne which hath not been reversed, parties and no common recovery hereafter to be suffered of lands persons of that tenure, shall, upon a writ of deceit already brought claiming by the lord of the manor of which the lands were parcel, the as if not reproceedings in which are now pending, or upon a writ of deceit which at any time after the passing of this act may be brought by the lord of the said manor, be reversed as to any person except the lord of the said manor; and the court shall order such recovery to be vacated only as to the lord of the said manor; and every such recovery which may be reversed as to the lord of the said manor upon such writ of deceit as aforesaid, shall still remain as good and valid against and as binding upon the vouchees therein, and all persons claiming under them, as such recovery would have been if the same had not been reversed by such writ of deceit as aforesaid. (a) (b) Sections 5, 6. The object of these sections will be sufficiently apparent, by attending to the following observations. Titles to lands of the tenure of ancient demesne are frequently involved in considerable difficulties, in consequence of fines or recoveries having, by mistake, been levied or suffered in the court of Com mon Pleas. A fine or recovery of lands of this tenure, ought to be levied or suffered in the court of the manor of which the lands are held. As, however, the lands are within the thereto, and under them, versed as to the lord. c. 74. Fines and recoveries ancient de mesne levied or suf fered in the manor 3 & 4 W. 4, V. And be it further enacted, That if, at any time before or after the passing of this act, a fine or common recovery shall have been levied or suffered, or shall be levied or sufof lands in fered in a superior court, of lands of the tenure of ancient demesne, and, subsequently to the levying or suffering thereof, a fine or common recovery shall have been or shall be levied or suffered of the same lands in the court of the court, after lord of the manor of which the lands had been previously and recove- parcel, and the fine or common recovery levied or suffered in such superior court shall not have been reversed previshall be as ously to the levying of the fine or the suffering of the common recovery in the lord's court, then, and in every such other fines ries in a su perior court, valid as if the tenure der them. Till the reversal, the par- suffering a recovery in the superior court is, that the owner, not being aware of the effect produced by such fine or recovery, afterwards, and before the same is reversed, levies a fine or suffers a recovery in the lord's court, which, according to the better opinion, is void on the ground of its having been coram non judice. Fines and recoveries are not unfrequently levied and suffered in the superior court, not from any wish to defraud the lord of his tenure, but from the circumstance of the legal advisers of parties not knowing that the lands are of the tenure of ancient demesne; for, it often happens, that, previously to a fine or recovery, the title to the lands is not investigated, or there may be nothing appearing on the abstract to shew that the lands were of that tenure. The law in this case is therefore harsh and inconvenient. A fine or recovery levied or suffered in the court of Common Pleas, of lands in Wales, or any county palatine, is absolutely void, and therefore works no mischief. This principle may be a good one as to lands in those jurisdictions, because the boundaries are well known and defined; but, for the reasons above given, it could not be made to apply to lands held in ancient demesne.-1st. Rep. p. 28. c. 74. recoveries invalid in other cases, of though le vied or suffered in whose ju case, the fine or common recovery levied or suffered in the 3 & 4 W. 4, lord's court shall, notwithstanding the alteration or change had not been of the tenure by the fine or common recovery previously le- changed. vied or suffered in the superior court, be as good, valid, and binding as the same would have been if the tenure had not been altered or changed; and that, in every other case Fines and where any fine or common recovery shall at any time before shall not be the passing of this act have been levied or suffered in a court whose jurisdiction does not extend to the lands which such fine or recovery shall have been levied or suffered, such fine or recovery shall not be invalid in conse- courts quence of its having been levied or suffered in such court, risdictions and such court shall be deemed a court of sufficient juris- may not diction for all the purposes of such fine or recovery; and, in the lands every other case where persons shall have assumed to hold therein courts in which fines or common recoveries have been levied or suffered, and such courts shall be unlawful or held without due authority, the fines or common recoveries which at any time before the passing of this act may have been levied or suffered in such unlawful or unauthorized courts shall not be invalid in consequence of their having been levied or suffered therein, and such courts shall be deemed courts of sufficient jurisdiction for all the purposes of such fines or recoveries. extend to comprised. ancient de by fine or recovery in stored in which the VI. And be it further enacted, That, in every case in Tenure of which at any time, either before or after the passing of this mesne, act, the tenure or* ancient demesne has been or shall be sus- where suspended or pended or destroyed by the levying of a fine, or the suffer- destroyed ing of a common recovery of lands of that tenure in a superior court, and the lord of the manor of which the a superior lands at the time of levying such fine or suffering such re- court, recovery were parcel, shall not reverse the same before the cases in first day of January, one thousand eight hundred and thirty- rights of the four, and shall not, by any law in force on the first day of lord of the this session of parliament, be barred of his right to reverse have been the same, such lands, provided, within the last twenty years within 20 immediately preceding the first day of January, one thousand years. eight hundred and thirty-four, the rights of the lord of the manor of which they shall have been parcel, shall in any manner have been acknowledged or recognized as to the same lands, shall, from the said first day of January, one thousand manor shall recognized *Sic. |