i8|!iliilliii|!li!!!iii!l!i!iiiHiii:;y
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 A COLLECTIOxN 
 
 OF 
 
 LAW TRACTS, 
 
 PUBLISHED 
 
 IN THE YEARS 1825 & 1826, 
 
 THE LAW JOURNAL, 
 
 WHICH IS 
 
 A MONTHLY PUBLICATION 
 
 ANNUAL SUBSCRIBERS ONLY. 
 
 VOL. I. 
 
 LONDON: 
 
 Printed by James Holmes, 4, Took's Court, Chancery Lane. 
 PUBLISHED BY J. W. PAGET, 5, QUALITY COURT, CHANCERY LANE.
 
 T
 
 Sf 
 
 
 TABLE OF CONTENTS. 
 
 VOL. 1. 
 
 No. 1. On the Claim of Executors to the Residue of their 
 
 Testator s Personal Estate . _ _ \ — <^(^ 
 
 II. Observations on the Title to Lands derived through 
 
 Inclosure Acts - _ _ _ _ 33 — ^Q 
 
 III. ./// Inquiry into the Soundness of certain important 
 
 Points relative to Executory Limitations, lately 
 impeached ----__ j^o — 95 
 
 IV. On the Mortgage of Tolls under Turnpike Acts 97— IM 
 
 V. An Examination of the Authorities on the Ques- 
 '^^ tion, Whether Executors, having a power to sell, 
 can make a good Conveyance of the Legal Estate 
 in the Land, without the Concurrence of the Heir- 
 at-law? 115 — l;i8 
 
 VI. On the several Remedies of Executors for the 
 Recovery of Rent, and partictilarly of the Re- 
 medies given to them by the Statute 32 Hen. 8. 
 c. 37. ------ - 129—147 
 
 vn. Analysis of " Preston's Essay on Estates." - 1.51 — 27o 
 
 VIII. A Collection of Cases on the Question, Whether 
 
 Trustees take the Legal Estate, or not ? - 274 — o^S
 
 ERRATUM. 
 The last Tract of this Volume has been numbered ix. by mistake for viii.
 
 LAW TRACT8. 
 
 No. I. 
 
 OX THE CLArSI OF EXECITORS TO THE RESIDLX OF 
 THEIR TESTATORS PERSOX.AL ESTATE. 
 
 [The following Tract tcag written hy J. BiUing^ley Parry, Esq. as a 
 note to the case of Pratt v. Sladdeu, bi kin proposed abridgment 
 of Vesfy Junior's Reports; but that work having been since 
 abandoned, the Aidhor has kindh consented to the note being 
 published in the present fFork~\ 
 
 There are few points on which the cases are more numerous than on 
 that respectino; the claim of executors to the residue of their testator s 
 pergonal estate; and as they lie rery widely scattered through the re- 
 ports, and it mav prove useful to the profession, to have them collected 
 in one place, thev shall be given in the present note. Very considerable 
 pains have been taken in collecting them, and it is hoped that few hare 
 escaped observation. It being the principal use of notes of this de- 
 .-icription, to facilitate the search of those who may have occasion to 
 look for authorities mentioned in it, it has been thought advisable to 
 class and subdivide the cases iu this note, m the following manner : 
 1st CLASS. Cases where there was no disposition of the residue. 
 1st DiTisiox. Cases where the executors or some or one of them, 
 took a benefit under the will, either expressly by name^ or 
 under a general description. 
 \st Branch. Cases where there were several executors, and all 
 
 took equal legacies, or a specijic legacy ;otiif?y. 
 2d Branch. Case^ where there were several executors, and all 
 
 took le^cies, but not of the same amount. 
 Gd Branch. Cases where there were several executors, but only 
 
 stmie or one of them took legacies. 
 4th Branch. Cases where there was a sole execute, who took a 
 
 legacy. 
 5th Branch. Cases where an interest in, or part of the residue, 
 
 was given to the executors. 
 6th Branch. Cases where the executors took only s partial in- 
 terest under the will. 
 
 B
 
 LAW TRACTS. 
 
 ///< Branch. Cases where the exceutors took only a limited in- 
 terest, in the first place, but part of the principal was given 
 over to iheni on a particular event. 
 Sth Branch. Cases whore there was a bequest to another, with 
 
 lui exception of part in favour of executor. 
 9//i Branch. Cases where the executors took legacies, but it was 
 contended they were not payable out of the personal estate. 
 \{)lh Branch. Cases where the executors took legacies, but not 
 under the iustrunient by which they were appointed exe- 
 cutors. 
 Will Branch. Cases were some executors appointed by will, 
 with legacies ; and others were appointed by codicil, with- 
 out legacies. 
 2d Division. Cases where an inference of the testator's intention 
 was to l)e drawn from the will, or from some circumstances 
 connected with the disposition or bequests thereby made ; 
 or from the connection between the testator and executors ; 
 or from the situation or circumstances of tlie executors. 
 \st Branch. Cases where tlie will was left uvjinished, or there 
 were blanks left in it ; or where there was some other 
 evidence of an intent to dispose of the residue, or a par- 
 ticular part thereof. 
 2d Branch. Cases where there was some expression in the will, 
 from which the testator's intention might be inferred, either 
 in favour of, or against the executors. 
 
 '3d Branch. Cases were legacies were given to the next of kin, 
 from which circumstance an argument was made in favour 
 of the executors. 
 
 4th Branch. Cases where the executors were infants or married 
 
 icomen, or nearly connected w^ith the testator. 
 5//i Branch. Cases where the executors were appointed in 
 respect of some office or situation^ or as members of a 
 commercial house, or partnership business. 
 Qih Branch. Cases where the executors, or some of them, were 
 appointed trustees under the will^ previously to, or in- 
 dependent of their being appointed executors; or where 
 some of them were clearly intended to take an office only. 
 2d CLASS. Cases where the residue was disposed of either to the 
 executors or some other persons, and all, or some of them, died 
 before the testator ; or where the bequest was void ', or was 
 revoked as to some part by a subsequent codicil.
 
 LAW TRACTS. 3 
 
 1st Division. Cases where the residue was given to the executors 
 and some or one of them died before the testator, or the 
 bequest was revoked as to part. 
 2d Division. Cases where the residue was given to some other 
 
 persons, who, or some of whom, died before the testator. 
 3d Division. Cases where some part of the personal estate was 
 
 bequeathed to purposes within the statute of mortmain. 
 4th Division. Cases where after a bequest of particular articles of 
 furniture, the residue thereof was given to another, and the 
 question was, whether the particular articles lapsed, by death 
 of the legatee, to the particular residuary legatee, or to the 
 general residuary legatee. 
 3d CLASS. Cases where the residue was given to the executors, and 
 the question was, whether the residue of monies arising from 
 real estate, was included therein. 
 4th CLASS. Cases where the residue was given to the executors, but 
 it was doubtful whether they were trustees of it for charitable 
 or other purposes, or for the next of kin, or were entitled to it 
 themselves. 
 
 5th CLASS. Cases where there was a general disposition of the testa- 
 tor's estate and effects to persons afterwards appointed exe- 
 cutors, in trust to sell for particular purposes, and apply the 
 remainder to purposes which could not be effected, or which 
 failed ; or where a particular interest in the produce was given, 
 but no disposition of the principal; or where trusts were 
 intended to have been declared^ but were notj or where no 
 disposition at all was made of the residue of such monies. 
 
 6th CLASS. Cases where it was doubtful whether the bequest to the 
 executors, gave them a part of the residue, so as to exclude 
 them from the remainder. 
 
 1st CLASS. Cases where no disposition was made of the residue, and 
 the executors claimed it. 
 1st Division. Cases where the executors, or some or one of them, 
 took a benefit under the will, either expressly by name, or under 
 a general description, or as children, &;c. of some particular 
 person,' &e. 
 \st Branch. Cases where there were several executors, and 
 they had all eqnal legacies^ or a specific legacy jointli/. 
 1. Fane v. Fane, 1 Vern.31. (1681), The executors had equal 
 legacies, and distribution was decreed. 
 
 B2
 
 I.WV TRACTS. 
 
 2. Foster v. Mount, 1 Vcrn. 4/3. (KiS?-) and Conk v. IValker, 
 cited 2 Vcrn. G76. Bequest of legacies to thildicu unci i^ijuulehildren, 
 and 10/. a-piece to A. and B. (whom the testator appointed e.vccutors) 
 for their care. Held, trust of residue for the next of kin. 
 
 3. 7^-;//^ V. Pn/15", 2 Vern. 97. (1089.) The executors had e(iual 
 legacies expressly for their trouble, and distribution decreed. 
 
 4. Cordelv. h'oden, 2 Vern. 148. (1G90.) Testator commenced his 
 will, by saying, " I dispose of my estate after mentioned, and what else 
 " I have in the world, in manner following ;" and then gave legacies 
 nearly to tlie amount of his property, and gave 20/. to his mother and 
 A. B., whom he apj)ointed executors, and begged they would take the 
 trouble of getting in his estate. Testator lived several years, and 
 accpiired a large estate. The mother died, and the surviving executor 
 was held a trustee of the residue for testator's next of kin. 
 
 5. Petit \. Smith, 1 P. Wms. 7- (169.").) A. having a daughter and 
 two brothers, by his will gave his two brothers 5/. a-piece, and appointed 
 them executors. Executors held trustees of residue, notwithstanding 
 some evidence was adduced to prove they were intended to take, the 
 daughter having offended her father. 
 
 6. Lord Bristol v. Himgerford, 1 Eq. Ca. Ab. 244. (1G97.) 
 Testator devised lands to be sold for payment of del)ts, and uilled 
 that the surplus should be deemed part of his personal estate and 
 <To to his executors; to whom he gave 100/. a-piece. Executors 
 held trustees for next of kin. \'^ernon reports this case differently, 
 (2 Vern. G45.) But the statement of it in the Eq. Cas. Abr. is cor- 
 rect. Sec lleg. Lib. 1696. A.JbZ. 966. and Mr. Bail 1 if )i/'s note (I), 
 2 Vern. 645. 
 
 7. Bayley v. Poicell, 2 Vern. 361. (1698.) Bequest of legacies to all 
 testator's next of kin hy name; and also of legacies to A. and B. the 
 executors : held, trust of residue for next of kin. 
 
 8. Vachell v. Breton, cited Moseley 4. (1706.) Testator gave all his 
 goods and plate to his daughter A., and 1,500/. to his son B., and 
 10.9. and no more to his son TF. and his wife's daughter P.; and made 
 C. and D. executors, to whom he gave 100/. each; but made no dispo- 
 sition of the residue. Held that executors were trustees of residue for 
 next of kin, having legacies of 100/. each ; but this decree was re- 
 versed in parliament, on the ground that the testator had barred W. 
 and P. of the surplus, by giving them IOa'. each. But see subsequent 
 cases on this point, mentioned, post, 2d Div. 3d Br. p. 70, overruling 
 this decision. 
 
 * Tlie Noi. preceding the cases, arc inserted to facilitate the rcf"( rences to the 
 cases ; aiifl' the tigures following the report from which tiie case is taken, show the 
 year in which the case was decided.
 
 LAW TRACTS. ' 5 
 
 9. Faniiigton v. Kmghtley, 1 P. Wms. 544. (1719.) Testator 
 declared as to his personal estate, if he should leave any, that he gave 50/. 
 to his brother A., and SOL to his nephew B., and made A. and B. 
 executors, and then gave small legacies to the persons who were his 
 next of kin. Held, the executors were trustees of residue. 
 
 10. Kneicell v. Gardiner, Gillj. Eq. Rep. 184. mentioned 3 Ves. 
 and Bea. 75. (1720.) in this case the executors were excluded from 
 the residue on two grounds : 1st, because they took legacies; and 2dly, 
 because the will was left unfinished. See this case, No. 78. 
 
 11. / F he eler V. Sheers, stated, post, No. 155. (1730.) In this case 
 there was a bequest of the personal estate to the executors, who were 
 directed to apply what remained above 200/. to each of ihhn, to such 
 charitable purposes as he should afterwards appoint. 
 
 12. Shrimpton v. Johnson, cited 3 Atk. 230. (1736.) The Lord 
 Chancellor is stated to have said, that in this case, the words of 
 the will were, " I likewise appoint them (the executors), heirs to my 
 personal estate, consisting of. See. (mentioning what,) together with my 
 books," and that Lord Talbot decreed a distribution. But it appears 
 that, in fact, the testator gave some specific legacies to a man and his 
 wife (who were the executors), jointly. (See Mr. Co^-'s note ( ), 
 1 P. Wms. 550. to Farrington v. Knightley, mentioned in Mr. Sanders's 
 Edition of Atk. 231.) And so it may be inferred, as Lord Hardwicke is 
 reported to have said in his judgment in Soiithcote v. TFatson, post. 
 No. 32. that the present case was a plain authority that specific legacies 
 bound an executor, (when given to the executors jointly.) 
 
 13. Andrew v. Clarke, 2 Ves. 162. (1751.) Testatrix gave a shilling 
 a- piece to her brother and sister, and legacies to several other persons, 
 and 50/. a-piece to her executors. Distribution decreed. 
 
 14. 3Iiddlefou v. Spicer, 1 Br. Ch. C. 201. (1783.) In this case 
 the produce of a leasehold estate directed to be sold, was given to 
 a charity, which could not take ; and the executors having legacies given 
 them, were held trustees for the crown, there being no next of kin. 
 
 15. Carey v. Goodiuge, 3 Br. Ch. C. 110. (1790.) Testator gave 
 to his brother H. G., and to his nephew G., 500/. each, and appointed 
 them executors. The testator afterwards wrote to G. and referred him 
 to certain letters, which he said were ivorih looking for, and desired him 
 to pay 200/. to C. On referring to the letters mentioned by the 
 testator, G. found several sums of money. IMit, it was held, that the 
 executors were trustees of the residue. 
 
 \{). Nisbett V. Murray, ante, 5, p. 149. (1799.) In this case there 
 was a bequest of 20/. a-piece to the executors, to buy mourning rings, 
 and thev were held to be clearly excluded on this, if on no other 
 ground. See this case stated^ post, No. 159.
 
 6 LAW TRACTS, 
 
 17. Muckleston v. Broicn, ante, (j, p. 52. (1801.) In this case 
 three persons were appointed executors by will, without legacies; 
 but, by a codicil made after the death of one of them, the testator gave 
 the two sunivors equal legacies, and a distribution was decreed. See 
 this case stated, post, No. 75. 
 
 18. M'Clelandv. Shaw, 2 Sch. and Lef. 538. (1805.) In this case 
 equal legacies were given to the executors, for their trouble in the 
 execution of the will, but it was contended they were payable out of 
 the produce of real estate, and therefore did not exclude. See this case 
 stated, post. No. 73. 
 
 ID. Kiifgy. Denison, 1 Ves. and Bea. 2G0. (181.3.) Testatrix gave 
 personal estate to A. B. and C, subject to the payment of her debts 
 and legacies. She then gave several legacies, including 200/. each to 
 A. B. and C, wliom she appointed executors. By a codicil she gave 
 other legacies, and subjected her real and personal estate to the payment 
 thereof, but directed the latter to be first applied. Distribution decreed. 
 
 20. Smithhouse v. Bate, 2 Ves. and Bea. 396. (1814.) Testator 
 gave to A and B. all his property, both real and personal, in trust that 
 thev devoted the whole of it to the payment of his debts, and of the 
 legacies and an7niities, given by his will. The testator appointed 
 A. and B. executors, and gave them equal legacies for mourning. Dis- 
 tribution of residue of personal estate was decreed. 
 
 2d Branch. Cases where there were several executors, and they 
 all took legacies, but not of the same amount. 
 
 21. Bachelor V. Sewel, 2Vern.736. better reported Gilb. 125. and 
 1 Eq. Cas. Ab. 246. (1716.) A. by will gave a legacy to his sister, 
 and 70L to B., and C. his wife, and their children, to buy mourning. 
 He also gave a house to D.,' one of B. and C.'s children, and his 
 clothes to be disposed of by his executors, and directed that 700/. stock 
 which he was entitled to, and the rest of his personal estate, should be 
 sold for payment of his debts and legacies ; and appointed D. and E. 
 (another of B. and C.'s children) his executors. Parol evidence was 
 admitted to prove that the testator meant his executors to take the 
 residue ; and it was held that they were entitled to it. 
 
 22. Brasbridgev. Woodroffe, 2 Atk. 69. (1740.) In this case there 
 were two executors, one of whom took a legacy of 200/., and the other 
 of lOOL Held, the executors were entitled to the residue; but it ap- 
 peared that the testatrix intended her next of kin should not take. 
 
 23. Buffar v. Bradford, 2 Atk. 220. (1741.) Testator gave one 
 moiety of his household goods, &c. to his sister i\l. B. ; the value of the 
 other half to be placed to the account of his personal estate, but 
 M. B. to have the use of it durante viduitate; all the rest of his estate.
 
 LAW TRACTS. 7 
 
 to be valued, and the amount of the value of the said estates, whether 
 real or personal, to be divided into eight parts, whereof he gave the use 
 of the whole to M. B. durante viduitate; and the testator then disposed 
 of the eight parts : and he gave to J. B. and his wife and children, 401. 
 for mourning, and appointed M. B. and J. B. executors. Executors 
 held entitled to residue. 
 
 24. Blinkhorn v. Feast, 2 Ves. 2/. (1750.) Testatrix gave A. 
 and B., who were both infants, particular specific legacies of unetiual 
 amount, and made them joint executors. No resulting trust of residue 
 for next of kin. The executors being infants, it was considered un- 
 likely that they were intended to take an office only. 
 
 25. Bowker v. Hunter, 1 Br. Ch. C. 328. (1/83.) Testatrix in her 
 will said, " as to all my temporal estate, I give and dispose thereof as 
 follows." She then gave several legacies, including legacies to her 
 next of kin ; and unequal legacies to the persons whom she appointed 
 executors. Executors held entitled to residue. 
 
 26. TFhitev. Emms, ante, 4. p. 21. (1798.) Testator | appointed 
 A. and B. his executors, and then gave his wife his money, stock in 
 trade, &c. and annuities to several persons ; and added, that it was 
 his will 3/. a year should be paid to A. during his life, for his care in 
 seeing his will duly executed. All these legacies to be paid by B, out of 
 the interest of 3 'per cent, stock, and remainder of interest to be the 
 property of B. during his life, whom he desired to be charitable with 
 it, &c. Distribution decreed, A. being clearly a trustee. 
 
 27. Paice v. Archbishop of Canterbury, post, p. 364. (1807.) In this 
 case the executors took unequal legacies ; but the decision turned upon 
 expressions in the will ; and particularly on a direction by the testatrix, 
 that any thing not specified, should " he committed to the discretion oj 
 her executors." See this case stated, post. No. 109, and No. 152. 
 
 28. fFhite v. jmUams, 3 Ves. and Bea. 72. Cooper, 58. (1814.) 
 In this case, the testator made several bequests, and gave his wife all 
 the goods and money in his house, at his death, unless he named 
 them afterwards; and, also, other interests to his wife; and gave 100/. 
 each to A. and B., whom he appuintcd executors together with his 
 wife. Executors were held entitled to residue, notwithstanding an 
 argument was made against them on the ground that the will was left 
 unfinished, there being a void space between the testator's signature 
 and the end of the will. 
 
 29. Giraud v. Hanbury, 3 Mer. 150. (1817.) Testator appointed 
 his wife and A. and B. executors. To his wife he gave his furniture, &c. 
 and to A. and his wife, and B., lOl. each, for mourning. A distribution 
 was decreed, but the case turned upon expressions implying a trust, in 
 the will. See, post, No. 113,
 
 8 LAW TRACTS. 
 
 od Branch. Cases wlicrc there were several executors, Init 
 
 only some or 0)ie of thein took legacies, or a benefit inider 
 
 the will. 
 
 ;}(). Dum-cll V. Bennett, cited 2 Wrn. (i/J. (1/09.) A. by will 
 
 _(;ave his wile 100/., and the interest of 300/., to her for life, and 
 
 appointed l.is wife and li. and C. exeeutors, f^ivinj[j to M. 20/. for 
 
 niourning. Distribution decreed of residence. !^ee later cases, yost. 
 
 31. Colesivorth v. Brangicin, Prec. in Ch. .323. (171 1 •) Testator 
 f()ri;ave A. B. a debt, and gave him .50/., and also some household 
 furniture, and nu\de A. li. and another executors. Executors held 
 entitled to residue. 
 
 32. Hawkins v. Alasou, Moselcy, 20. (1727.) Testator p;ave his 
 brother ]M. H. besides a house, &;c. 20/. for mourning, and 100/. South 
 Sea stock ; and after giving several other legacies, bequeathed the 
 residue of his personal estate to his daughter S. for life, and after her 
 decease to her children, attaining eighteen ; if none, testator then 
 bequeathed the said residue " as follows." He then gave certain 
 houses, &c. to his brother M. H., and others to CD,, and made his 
 daughter S. executrix during her life, and his brother M. H. and G. ]). 
 executors after her death. Testator's daughter S. died w ithout issue, 
 and it was held that the executors M. H. and G. D, were entitled to the 
 residue undisposed of. 
 
 33. Oliver v. Frewen, 1 Br. Ch. C. 590. (1785.) Testator ap- 
 pointed several persons executors, to some of whom he gave unequal 
 legacies, to others none ; and he directed that if any of the legatees under 
 his will should die in his life-time, their legacies should go to his 
 executors. Executors held entitled to residue. 
 
 34. Dean v. Dalton, 2 Br. Ch. C. G34. (1789.) A. and B. were 
 trustees under the will, and had legacies of 100/. each given them for 
 their trouble in the trusts, and C. and D. were appointed executors; 
 but on the death of C. the testatrix by a codicil appointed A. and B. 
 executors, with J)., and directed that her executors should be paid all 
 expenses, &c. incurred in the execution of the will. See this ease 
 stated, post, No. 74. 
 
 35. Sadle7^v. Turner, ante, viii. p. ()17. (1803.) In this case there 
 were five executors, to one of whom 200/. ^^•as given to buy a mourning 
 ring, and to another a specific bequest ; but the case was decided on 
 another ground. See the case stated, post, No. 136. 
 
 36. Williams v. Jones, ante, v. p. 737; x. p. 77. (1804.) Tes- 
 tatrix appointed her niece INI. J., and iMr.W. to be her executors, and 
 said that IVIr. W. was to have 20/, for his trouble. Parol evidence 
 was adduced to prove that M. J. was intended to take residue, and 
 it was so held ; but great stress was laid on M. J.'s being an infant.
 
 LAW TRACTS. 9* 
 
 which, it was said, went to show that she was entitled to take a benefit, 
 and not an oflice only. 
 
 37. Griffiths y. Hamilton, ante, xii. p. 298. (1806.) G. H. residing 
 in India, by his will gave large legacies to his father, uncles, and reputed 
 son, &c. and also 1,000 dollars to A. B. and C. D., whom he had 
 appointed trustees and guardians of his reputed son, as a small testi- 
 mony of his' regard; and appointed A. B. and C. D. and four other 
 persons, his executors. The surviving executor was held entitled to the 
 residue. 
 
 38. Rawlings V. Jennings, ante, sin. p. 39. (1806.) Testator gave 
 his wife 2001. a year, being part of the monies he had on bank se- 
 curity, for her own use ; together with all his household furniture and 
 effects, of what nature, &c. soever, that he might be possessed of at his 
 death. He then gave his son A. B. 2000Z. Indian stock, and 1,900L part 
 of his monies in the 51. })er cents., for his use during his life; and if he 
 died without children, the testator gave 500/. of it to his widow, and 
 the remaining jDart to return to the testator's family. The testator 
 then gave several other legacies, and appointed his son A. B., his wife, 
 and C. D., executors. C. D. renounced probate, and the wife and son 
 were held entitled to the residue. 
 
 39. Pratt V. Sladden, supra, 193. (1807.) In this case there were 
 two executors, to one of whom a large legacy was given ; but the 
 principal doubt arose from several expressions in the will, which, it was 
 contended, made the executors trustees. It was, however, held other- 
 wise. See this case stated, joostj No. 1 10. 
 
 4th Branch. Cases where there was a sole e.vecutor, who took a 
 legacy or benefit under the will. 
 
 40. Ward v. Lane, Prec. in Ch. 182. (1692.) A. by will made his 
 wife executrix, and gave her legacies. A. lived twenty years after, and 
 acquired a large personalty. Distribution decreed. 
 
 41. Mattheirs v. Courfhorpe, 3 Salk. 82. (Wm. III.) Testator 
 made A. executor, and gave him 501. for his care in the execution of his 
 will. Distribution decreed. 
 
 42. Randall y. Bookey, 2 Xei-n. 425. (1701.) Testator, who had i\u 
 children, gave a moiety of a banker's debt to his nephew s and nieces, 
 and the other moiety to his wife, whom he made executrix. The 
 testator also devised real estate to trustees, to pay rents to wife for life, 
 and afterwards to sell and pay thereout several legacies. Wife held a 
 trustee of residue, as she took a legacy. 
 
 43. Coolie v. Walter, Freem. 276. (1704.) A. by will made B. 
 her executor, and gave him 201. for mourning. Distribution decreed. 
 
 44. Liltlehury v. Buckley, 1 Eq. Cas. Ab. 24-5. (1709.) Testator
 
 10 LAW TRACTS. 
 
 made B., a stran^^cr, his executor, and gave him several legacies. On 
 appeal to the Lords, parol evidence was admitted to prove he was in- 
 tended to take the residue, and decided accordingly. 
 
 45. Bally. Smith, 2 yc\n.i)75. (1711.) Bequest to wife, of plate 
 and goods, which she brought testator in marriage, and appointed 
 wife executrix. Held, wife entitled to residue. Qu. 
 
 46. Rochfield v. Careless, 2 P. Wms. 158. (1723.) Testatrix gave 
 to her nearest relations 5/. a-piece, and made A. B., a stranger, exe- 
 cutor, giving him 5/. for his care in fidfilling her will. Evidence was 
 adduced to prove testator meant executor to take residue, but it was 
 nevertheless held he was not entitled to it. And see Petit v. Smithj 
 ante, No. 5. 
 
 47. Duke of Rutland v. Duchess of Rutland, 2 P. Wms. 209. 
 (1723.) Testatrix after stating what property she was entitled to, and 
 that she intended to dispose of it by her will, gave to all her 
 brothers and sisters pecuniary legacies, including one of 500/. to her 
 eldest brother, whom she made executor. Evidence was adduced to 
 rebut presumption against the executor, and he was held entitled. 
 
 48. Attorney General v. Hooker, 2 V. Wms. 33S. (1725.) Testator 
 gave lOOl. per ami. to his sister, (who was his sole next of kin,) for life, 
 
 and the residue of his bank stock, to his executor ; and gave 
 
 per ami. out of other stock to , remainder of his said stock to . 
 
 He gave the furniture of his house to his executor, and another 
 legacy to his (testator's) sister, and made a stranger executor. The 
 executor was held entitled to residue ; the Lord Chancellor considering 
 that the legacy to the executor could no more exclude him, than the 
 legacy to the next of kin would exclude her. But see Davers v. 
 Deices (next case), and other subsequent decisions, particularly Tomkyns 
 V. Tomkyns, post. No. 122. and the other cases there. 
 
 49. Davers v. Dewes, 3 P. Wms. 40. (1730.) In this case, the sur- 
 viving executor, who took a legacy under the will, for his trouble, 
 claimed in opposition to the next of kin, on the ground that as the 
 next of kin took legacies as well as him, his legacy did not exclude 
 him, but a distribution was decreed. There were other circumstances 
 in the case sufficient to render the executor a trustee. See this case 
 stated, post. No. 79. 
 
 50. Hatton v. Hatton, 2 Eq. Cas. Ab. 443. (1733.) Testator 
 gave a legacy to his wife, whom he also appointed executrix ; but the 
 proof being strong that she was intended to take the residue, it was 
 decreed accordingly. 
 
 51. Newstead v. Johnson, 2Atk.45. (1740.) Testatrix by her will, 
 after giving several legacies to her children, directed 1,0(X)/. to be 
 taken out of her stock in trade, and settled on her son. She then
 
 LAW TRACTS. U 
 
 gave the residue of her stock in trade to a trustee, for the separate 
 use of her daughter Mrs. A. a feme covert, and appointed Mrs. A. 
 executrix. Held that Mrs. A. was excluded from residue, the legacy 
 to a trustee for her being the same, as if given to herself. 
 
 52. Southcote v. Watson, 3 Atk. 226. (1745.) Testator gave an 
 annuity of 400/. to A., and several other legacies out of his stocks in 
 the funds, and aftei' giving directions respecting his property in the 
 funds, and disposing thereof, gave A. his household goods and furniture, 
 (except two pictures,) and all his plate, linen, &c. and clothes what- 
 soever, and appointed A. executrix. Distribution decreed of residue. 
 
 53. Lake v. Lake, Amb. 126. (1751.) Testator, after giving se- 
 veral legacies, bequeathed to his wife 1,400/., in case the marriage 
 bond of 400/. was not brought in to lessen the legacies, and gave her 
 his lands at B. (which proved to be part leasehold), and made her 
 executrix. It seems to have been held that the legacies given to the 
 wife, excluded her from the residue. 
 
 54. Lawson v. Lawson, 7 Bro. Pari. Cas. 511. (1772. 1777.) 
 Testator by his will charged all his real estate, and also all his personal 
 estate, {except 3001. then lent out on bond, which he received with his 
 luife, and which he gave to her, and intended it should go entire to her,) 
 with the payment of his debts ; but from the arguments at the bar, it 
 may be inferred that the real estate was first to be applied. The 
 testator then gave his wife an annuity of \00l. out of his copyhold 
 estate, and also a certain house as long as she liked to live in it ; and 
 after giving other legacies, bequeathed to his wife all her wearing 
 apparel, &c. and appointed her executrix. On a bill filed by the 
 testator's next of -kin, his nephew and niece, a distribution was decreed 
 of the residue : but on an appeal to the Lords, it was argued for tlie 
 widow, that the testator did not intend the 300/. as any bounty from 
 himself, but as her own property ; and that the legacy of her wearing 
 apparel, &c. was not any bounty either, as the widow would be entitled 
 to it as her paraphernalia ; and the above decree was reversed. 
 
 55. Martin v. Rebow, 1 Br. Ch. C. 154. (1782.) Bequest to wife 
 of leasehold house, plate, &c. and wife appointed executrix. Distribution 
 
 decreed. 
 
 56. Noursey. Findi, ante, i. p. 344. on appeal, as Hornby v. Finch, 
 ante, ii. p. 78. (1791.) In this case several legacies were given to the 
 executrix ; but it was not necessary to decide whether they excluded 
 or not, as the executrix was clearly barred on another ground. See this 
 case stated, post. No. 83. 
 
 57. Chennel v. Lewthwaite, and Thornton v. Tracy, ante, ii. 
 p. 465. (1794.) In each of these cases there were bequests of several 
 legacies, and in each also, a pecuniary legacy was given to the person
 
 42 LAW TRACTS. 
 
 afterwards ai)pointo(l executor. lUit in the second case, the testator 
 gave a shillbig to one of his sisters, and in apjiointing his executor, 
 used the words icliole and sole cxcaifo)', which circumstances were re- 
 marked hy tlic Master of the Rolls. Tn eacli case, evidence was gone 
 into to prove executor was intended to take heneficially, and it was so 
 
 decreed. 
 
 .58. Hulford v. irood, ante, iv. p. 76. (1798.) Testatrix hy will 
 gave certain leasehold property, household goods, kc. which she de- 
 rived from particular persons, to Sir F. L. W., for his own use, suhject 
 to the payment of several legacies, given hy the will, and appointed Sir 
 F. L. W. executor. By codicil she gave Sir F. L. W. 81/. a year long 
 annuities, and also certain household goods, Sec. Distrihution decreed 
 of residue. 
 
 .59. Ahhotw Abbot, ante, \\.\).'34S. (1801.) Testator hy his will 
 bequeathed numerous legacies to his relations, and amongst others 
 to Wm. A. his brother 10/., and to his four children 10/. each ; and 
 " to his nephew J. A. (who was one of W. A.'s four children,) ichole 
 and sole executor." Distribution decreed. And see Kennedy v. 
 Slaingshy, note, ante, i. p. 66. where a legacy to the executor was 
 held to exclude, notwithstanding legacies were given to the next of kin. 
 
 60. Laughamv. Sanford, post, xvii. p. 4'i5 ; xix. p. 6-il. (1811.) 
 Sir J. C. bv his will gave " the following legacies to be paid out of his 
 personal estate :" to A. B. 10,000/., together with furniture of particular 
 houses (plate only excepted) : and then gave several other legacies, 
 and appointed A. B. his executor. By a codicil he gave a house which 
 he had agreed to purchase (and which was to be paid for out of the 
 produce of the timber on a particular estate) to A. B. Evidence was" 
 adduced by A. B. to rebut the presumption against him ; but it was 
 considered as rather confirming it, and distriljution was decreed. 
 
 61. Bxdlx. Kingston, IMer. 314. (1816.) In this case, the exe- 
 cutor had legacies given him, and was also a trustee ; and he was held 
 to be clearly excluded from the residue. 
 
 5f/i Branch. Cases where an interest in, or part of the residue, 
 was given to the executors or executor. 
 
 61*. Bennct v. Batchelor. (1789.) See this case stated, post, 
 No. 160. 
 
 62. Dicks v. Lamhert, ante, iv. p. 72.5. (1799.) Testator gave a 
 house, &c. and all his household goods, stock in trade, cash, securities, 
 hook debts, and so forth, ofichat nature or quality soever, to his wife 
 for life ; and, after her death, he gave the house. Sec. t© his m-phews 
 and nieces, to whom he likewise gave, after the decease of his wife, 50/. 
 a-piece, out of the securities he then had : the profits to his wife for
 
 LAW TRACTS. |8 
 
 life, she repairing the house during her life, and to pay the legacies to 
 his nephews and nieces who should be living at her decease : and he 
 appointed his wife executrix. Distribution decreed, on the ground that 
 part of the residue was given to the executrix. 
 
 63. Nisbeit v. Alurrai/, ante, v. p. 149. (1799.) In this case the 
 testator gave all the rest of his estate, both real and personal, in the 
 island of J. (except his wearing apparel) to trustees, (who were after- 
 wards appointed executors) in trust to sell, and pay particular sums &c. 
 and gave the remainder of the said monies to the said trustees and 
 executors. It was doubted whether this bequest would exclude the 
 executors. See the case stated, post, No. 1.59. 
 
 6th Branch. Cases where the executors or executor took only a 
 partial interest under the will. 
 
 G4. Hoskins v. Hoskins, Prec. in. Ch. 263. (1/06.) Testator gave 
 the use of his furniture to his wife during widowhood, and made her 
 executrix during the same period ; and if she should die or marry, he 
 appointed his son and heir executor. He also gave some curiosities, dc. 
 to remain as heir looms in his family. Wife held entitled to residue, as 
 she took a limited interest only in the furniture. Sed qu. as there 
 was no ulterior disposition of the property given to the wife. See 
 following cases. 
 
 65. Lady Granville x. Ducliess of Beaufort^ 2 Vern. 648. (1709.) 
 A. bequeathed the use of his jjlate to B. his wife for life, and afterwards 
 to C, and made B. his executrix. Lord Cowper decreed a distribution ; 
 but his decree was reversed by the Lords. 
 
 66. Harper v. Lee, Moseley, 3. (1726.) Testator gave all his 
 houses, &;c. and goods whatsoever, to his wife for life ; and then, to his 
 nephew H. L. all his books and mathematical instruments, «Scc. \Vife 
 Avas held entitled; but according to the report, the decision was 
 founded on another ground. See post, 2d Div. 3d Branch, No. 119. 
 
 67. Man v. Man, Strange, 905. (1731.) A. by will gave the use 
 of his personal estate to his wife durante viduitate, and afterwards to 
 A. B. and C. D. share and share alike, and made his wife executrix. 
 C. D. died in testator's lifetime ; wife held entitled to the lapsed share. 
 
 68. Gohsall v. Sounden, 2 Eq. Ca. Ab. 444. (1736.) A. who had 
 a wife, daughter, and three grandchildren, by his will gave to his 
 wife the income of all his real and personal estate for her life • and 
 after her decease, he gave an annuity of 20/. to his daughter for 
 life ; and gave legacies to his grandchildren, and also a legacy to his 
 daughter, payable on her marriage with wife's consent ; and made the 
 wife executrix ; but if she died, and daughter survived her, daughter 
 to be executrix. Distribution decreed.
 
 '1 4 1 A^^' TRACTS. 
 
 69. Dicks V. Lamhcrt, ante, *iv. 72.'). (1709.) See tills case stated 
 ill the preceding Ijianch, No. ()2. 
 
 70. Jones V. fVestcomb. (171 !•) See next branch. 
 
 7th Branch. Cases where the executors took only a limited, 
 or partial, interest in the first instance, but the principal, 
 or some part thereof, was, in a sul)sequent part ol" tiie will, 
 given over to thein, on a particular event, or otherwise. 
 
 71. Jones v. IFestcomb, 1 Eq. Ca. Ab. 245. (1711.) A. possessed 
 of a term of years, bequeathed it to his wife for life, and, after her 
 death, to the child -she was then enseint with ; but if such child should 
 die under twenty-one, then one-third of the premises to the wife ab- 
 solutely, and the remaining two-thirds to B. and C. and made his wife 
 executrix. Wife held entitled to surplus. 
 
 Sth Branch. Cases where a bequest was made to another, with 
 an exception of a part in favour of the executors. 
 
 72. Griffiths v. Rogers. 1 Eq. Ca. Ab. 245. (1704.) Testator 
 gave his library of books to A. (except ten books such as his wife 
 should choose,) and made his wife executrix. Wife held entitled to 
 residue. 
 
 9th Branch. Cases where the executors took legacies, but it 
 was contended they were payable out of real estate^ and 
 therefore did not exclude. 
 
 73. M'Cleland v. Shaw, 2 Sh. and Lef. 538. (1805.) Testatrix 
 gave real estates to A. and B. to be sold, and the money applied as 
 thereinafter mentioned. The testatrix then deisired her debts, &c. to be 
 paid out of such money, and in the second place, directed several 
 sums to be paid to different persons. She then gave 20/. a-piece to 
 A. and B., whom she appointed executors, for their trouble in the 
 execution of her will; and disposed of the residue of the said purchase 
 money, and directed all the legacies to be paid by Iter executors as soon 
 as they could sell the real estate. It was contended for the executors, 
 that the legacies given to them were given out of the produce of 
 the real estate, and did not therefore exclude ; but it was held that 
 the personal estate was applicable in payment of the legacies, &:c. and 
 a distribution was decreed. 
 
 \Oth Bra7ich, Cases where the executors took legacies or some 
 other benefit, from the testator; but not under the in- 
 strument by which they were appointed executors. 
 
 74. Dean v. Dalton, 2 Br. Ch. C. 634. (1789.) Testatrix by her 
 will bequeathed to A, and B,, after payment of her debts, all sums of
 
 LAW TRACTS, jj 
 
 money she should die possessed of in the public funds, upon certain 
 trusts ; and bequeathed to A. and B. 100/. /or their trouble in the trusts 
 reposed in them; and appointed her sisters C. and D. executrixes. After 
 the death of C. the testatrix made a codicil, whereby she appointed 
 A. and B. joint executors with D., and directed that her executors 
 should he paid all expenses^ S^c. which they should be put to in the 
 execution of herioill, 6^c. A distribution was decreed, the last clause 
 in the will plainly showing they were not to take the residue. See 
 cases 2dDiv. 2d Br. p. 68 *. 
 
 75. Muckleston v. Brown, ante, vi. 52. (1801.) The testator by 
 his will gave his real estates and the residue of his personal estate, 
 subject to debts, legacies, &c. to A. B. and C. whom he appointed 
 executors. By a codicil made after the death of C, after devising a 
 real estate to A. and another to A. and B. upon trusts, and giving 
 several legacies, gave to A. and B. 1,000/. each, and directed his 
 legacies to be paid by his executors. Held that the legacy of 1000/. each 
 made A. and B. trustees of residue. 
 
 llth B^'anch. Cases where executors were appointed by will, 
 and took legacies ; and additional executors were appointed 
 by codicil, without legacies. 
 
 7G. Mordauntv.Hussey, ante, iv. p. 117. (1798.) Testatrix by her 
 loill appointed A. her executor, and gave him a legacy. By a sub- 
 sequent testamentary paper, siie directed the residue of her personal 
 estate to be disposed of according to such instructions as she should 
 give A., and by a subsequent codicil appointed B. one of her executors. 
 She gave no directions respecting the residue. Distribution decreed, 
 as the testatrix intended to have disposed of the residue, and did not 
 intend her executors to have it. See cases 2d Div. 1st Br. infra. 
 
 2d Division. Cases where an inference of the testator's intention, 
 either in favour of, or against, the executors, was to be 
 drawn from some intended, or unfinished bequest, or from 
 some expressions in the will ; or, from some circmnstances 
 connected with the disposition or bequests thereby made, or 
 the objects to whom they were made; or, from the re- 
 lationship or connection between the testator and the exe- 
 cutors ; or, from the situation or circumstances of the parties 
 appointed executors, S^c. „, "" 
 
 \st. Branch. Cases where the will icas left unfinished, or where 
 blanks were left in it, or where there was some other evi- 
 dence of an intent to dispose of the residue, or a particular 
 part thereof.
 
 ]g LAW TRAfTS. 
 
 77. Attorney Geveral \. Hooker, 2 P. Wms. 3^8, (1725.) Sec this 
 case stated, ante. No. 48. 
 
 78. Knewellv. Gardiner, Gilb. Eq. Rep. 184; mentioned 3 Ves. and 
 Bea. 75. (172G.) Testator gave several legacies, including legacies 
 to his executors ; and then began anullier bequest, but left it uvjiniahed. 
 Distribution decreed. 
 
 79. Davers v. Dewes, 3 P. Wms. 40. (1730.) In this case, there 
 was a bequest of furniture, reserving particular parts, vvhich testator 
 declared he intended to dispose of by liis codicil ; and then gave all 
 the residue of his jjcrsonal estate not before disposed of, or intended io 
 be disposed of bi/ his codicil. Distribution was decreed ; l)ut in addition 
 to the above ground, the executor had a legacy given him for his 
 trouble. See post, No. f)2. 
 
 80. Wheeler v. Sheers, stated, post, No. 155. (1730.) In this case 
 the executors were directed to apply what should remain of the personal 
 estate above 200/. to each of them, to such charitable purposes as the 
 testator should by codicil appoint, and no appointment was made. 
 Distribution was decreed, 
 
 81. Bishop of Cloyne v. Young, 2 Ves. 91. (1750.) G. B. by will 
 appointed A. and B. his executors, and gave B. a mortgage he had on 
 B.'s estate, to be divided between B.'s daughters. To A. he gave a 
 bond for 200/. due from B. and then said, " after all my just debts 
 and legacies paid, I bequeath the remainder of my estate, real and 
 j^ersonal, and ichatever shall be due to me for half-pay, i^c" without 
 adding any thing further. Distrilnition decreed, the residuary clause 
 showing an intent against the claim of the executors. 
 
 82. Lord ISorth \. Pur don, 2 Ves. 495. (1752.) Testatrix gave all 
 her worldly substance to M. L. to be paid to her at twenty-one, or 
 
 marriage, if she married with consent of ; or, if she died under 
 
 ticenty-one, ^-c. then testatrix gave all her substance to ; and 
 
 made A. and B. executors, heartily requesting them to be so kind as to 
 take on them the execution of her will. M. L. died under twenty-one, 
 and distribution was decreed. 
 
 83. Nourse v. Finch, ante, i. p. 344. on appeal as Hornsby v. Finch, 
 ante ii. p. 78. (1791.) Sir C.N. after making many other be- 
 quests gave some houses, furniture, &:c. to A. provided she did not 
 marry; but if she did, then over, and also gave her 1,100Z. secured as 
 therein mentioned, to dispose of as she should think fit, and made A. 
 executrix. After the testator's death, a paper was found, in which he 
 recited that he had not disposed, by his will, of the residue, and then 
 
 said "I give out of the said residue and all the residue ;" 
 
 the blanks were not filled up. Evidence was gone into both by the 
 next of kin and executrix, and the next of kin were held entitled, either 
 way— \ipon the will, or upon the evidence.
 
 LAW TRACTS. 17 
 
 84. 3iordaunt v. Hussey, ante, iv. p, 11/. (1/98.) See this case 
 stated, ante, No. 76. The executors were considered trustees, there 
 being a direction in the will to dispose of the residue as testatrix should 
 appoint by codicil, and no disposition was made by codicil. 
 
 85. White \. Williams, 3 Ves. and Bea. 72. ; Cooper, 58. (1814.) 
 In this case there was a considerable blank space between the end of 
 the will and the testator's signature ; but the last sentence in the will 
 was completed ; and is was not considered as having been left unfinished. 
 See this case, ante, No. 28. 
 
 2d Branch. Cases m which there was some expression in the 
 will, from which an inference was drawn, either for, or 
 against the executors. 
 
 86. Fane V. Fane, 1 Vern. 31. (1681.) In this case legacies were 
 given to the executors for their trouble, and distribution was decreed. 
 
 87- Foster v. Munt, 1 Vern. 4/3. (1687.) In this case also, the 
 executors had equal legacies given them /or their care, and distribution 
 was decreed. 
 
 ^S. Cordel v. Noden, 2 Vern. 148. (1690.) Testator gave 20L to his 
 mother and A. B., whom he appointed his executors, and begged they 
 would take the trouble of getting in his estate. Distribution decreed. 
 
 89. Matthews v. Courthorpe, 3 Salk. 82. (Wm. III.) The executor 
 had a legacy given him for his care in the execution of the will, and dis • 
 tribution was decreed. 
 
 90. Bagwell v. Dry, 1 P. Wms. 700. (1721.) Testator bequeathed 
 surplus of personal estate to four persons equally, and made A. B. 
 " executor in trust." Executor was not allowed to take a part of the 
 residue which lapsed. 
 
 91. Rachfield v. Careless, 2P. Wms. 158. (1723.) Testatrix gave 
 legacies to her relations, and made A. B., a stranger, executor, giving 
 him 51. for his care in fulfilling her icill. Distribution decreed, notwitli- 
 standing evidence adduced to rebut presumption against executor. 
 
 92. Davers v. Dewcs, 3 P. Wms. 40. (1730.) In this case the exe- 
 cutor, in addition to other circumstances against him, had a legacy 
 given him for his trouble, and distribution was decreed. See ante, 
 No. 79. 
 
 93. Craydon v. Hicks, 2Atk. 16; Reg. Lib. A. 1739. fol. 140. 
 (1739.) The report does not state on what ground the executors were 
 held trustees for the kept of kin ; but on examining the Register, it 
 appears that the testator, by his will, made in 1 726, gave legacies to 
 his children, payable at twenty-one, and appointed his motlier, his 
 v.-ife, and his brother, executors ; giving them fidl power and authority 
 to act and do cdl that was just and lawful for [the benefit and ad-
 
 J 8 LAV*- TRACTS. 
 
 vantage of his children, till they attained the ages before ex^)ressed ; 
 but made no disposition of the residue. The testator died soon after 
 the date of his will ; the executors who proved the will were dead ; and 
 the present case arose respecting the forfeiture of a legacy by the 
 testator's daughter. The decree directed an account to be taken 
 against the representatives of the deceased executors, &c. of the testator's 
 estate, and the clear residue to be distributed amongst next of kin. 
 
 94. Jndrovin v. Poilbank, 3 Atk. 298. (1745.) Testator gave his 
 personal estate in thirds to his three sisters, and then said, that his 
 mil might be icell executed, he had named and appointed for his 
 executor thereof A. B., his friend, giving him in that quality as full 
 pouer as could be given to a testamentary/ executor. One of the three 
 sisters died before the testator, and the executors were held to be 
 trustees of the lapsed share for next of kin. 
 
 95. Lord North v. Purdon, 2 Ves. 495. (1752.) In addition to other 
 circumstances against the executors, the testator " heartily requested 
 them to he so land as to take on them the execution of his icill," and 
 distribution was decreed. See ante, 1st Br. No. 82. 
 
 96. Oliver v. Frewen, 1 Br. Ch. Ca. 590. (1785.) Several persons 
 were appointed executors; to some, legacies were given; and the 
 testator directed, that if any of the legatees under his will died in 
 his lifetime, their legacies should go to his executors. Executors held 
 entitled. 
 
 97. Batteley v. JVindle, 2 Br.' Ch. Ca. 31. (1/86.) Testator desired 
 
 his brother woidd he executor and trustee for his sister B. and her 
 children. Held that the word /n/5fee should not exclude the executor 
 from the residue. It may be inferred from the report, that a fund was 
 bequeathed to the brother in a former part of the will, in trust for B. 
 and her children. 
 
 98. Dean v. Dalton, 2 Br. Ch. Ca. 634. (1789.) In this case A. and 
 B., who were trustees under the will, had a legacy given them for their 
 trouble ; and by a codicil were appointed executors, and the testatrix 
 directed that her executors slioidd be paid all their expenses, 6^c. See 
 the case ante, No. 34. 
 
 99. Carey v. Goodinge, 3 Br. Ch. Ca. 110. (1790.) The testator 
 after the date of his will wrote to one of his executors, and referred to 
 certain letters, containing money, which he said were worth looking 
 for, &c. Sec this case stated ante. No. 15. 
 
 100. Chennel v. Leivthwaite, and Thornton v. Tracy, ante, ii. p. 465, 
 (1/94.) See these cases stated, ante, No. 57. 
 
 101. White v. -Euan*, (1798,) stated ante, No. 26. 
 
 102. Be Mazar v. Ppbus, ante, iv. p. 644. (1799.) Testator by his 
 will mad© in the Ea^t Indies, appointed A. and B. of Copenhagen to
 
 LAW TRACTS. jq 
 
 be his lawful attorneys and executors in Denmark. He also appointed 
 the house of Messrs. Pi/bus, Call, and Grant in England, his true and 
 lawful executors to that his will, and guardians of his natural children. 
 Item, he appointed C. and D., in Bengal, his attorneys and executors of 
 his will in that country. The testator then disposed of large sums of 
 money to his natural children and others, and directed his property in 
 India to be remitted home to the house of Messrs. Pyhus and Co., London 
 and declared that the amount should be invested in the funds. Then, 
 after stating that he ivas at a distance from any place where a ivill 
 could be properly made, he enjoined his executors of that his will, 
 in the fullest sense to carry the same into effect. Pybus and Co. claimed 
 the residue as executors, but the next of kin were held entitled. 
 The last sentence in the will was much relied on, as showing an intent 
 against the executors ; and Pybus and Co. were, it was said, appointed 
 as a house or firm, and could not be entitled to take. 
 
 103. Urquhart v. King, ante, vii. p. 225. (1802.) Testatrix intending 
 to dispose of part of her personal estate, made her will respecting the 
 same in manner following. She then gave several legacies to relations 
 in America, and directed the legacies to be paid without any deduction 
 in respect of taxes, &:c. and gave her executors such a sum as might be 
 necessary for paying the taxes affecting the legacies, and also the 
 costs which they might incur in the execution of her will, and appointed 
 the ambassador for the time being, from America, and C. D., her exe- 
 cutors. Executors were held trustees of residue. 
 
 104. Seley v. Wood, ante, x. p. 71. (1804.) Testator appointed B. 
 and C. his executors, ivho were to settle his affairs if they ivould be so 
 good as to do it. Testator then gave several legacies and annuities J 
 particularly an aimuity to his brother-in-law, with all his household 
 goods, &c. and to bury his body. And as to some of the annuities, the 
 testator directed that on the death of the annuitants, the annuities should 
 return to the executors. Distribution decreed. 
 
 105. Bennett v. Bachelor, post, No. 160. 
 
 106. M'Cleland v. Shaw, 2 Sch. and Lef. 538. (1805.) In this case 
 there was a bequest of 20Z. a-piece to the executors and trustees, for 
 their trouble in the execution of the will. See this case stated, ante, 
 No. 73. 
 
 107. LordCranleyv. Hale, Ves. Jun. xiv. p. 307. (1807.) P. H. by a 
 testamentary paper directed that all her property, of whatever sort, should 
 pass thereby, according to law, except three specified sums which she 
 gave to A. B. and C, and she thereby appointed her brother her sole 
 executor, and requested he would make such little arrangements as he 
 had reason to think she would wish. Distribution decreed. 
 
 108. IValton v. fTalton, post, p318. (1807.) J. B. previously to 
 
 c
 
 20 LAW TRACTS. 
 
 his daughter's mrinla,£>c rhew out a sketcli of an agreement, respecting 
 the provision lie would make for her, hy which lie agreed to give her 
 1700/. at his death ; and under this paper, he afterwards wrote a sort 
 of testamentary memorandum, expressing that he confirmed the above 
 agreement, and in consideration of his daughter's marriage, cHrected 
 that all his property and effects should be vested in R. M. (the 
 luisband) preferable to any executor or administrator, upon or after 
 liis decease, for all the pioyoses in the said agreement mentioned, 
 R. M. obtained probate of this paper as J. B.'s will, and evidence was 
 adduced of J. B.s having said he intended R. M. to take all his 
 property. Held that there was no trust of the residue for the next 
 
 of kin. 
 
 109. Puice \. Archbishop of Canterbury, p. 364. (1807.) Testatrix 
 appointed A. B. and C. executors, and gave to them all her real and 
 ])ersonal estate whatever, in trust for the following purposes— to pay her 
 debts, and the legacies therein, and in the manner thereinafter men- 
 tioned, and gave A. a leasehold house, and to B. and C. lOOL each. 
 The testatrix then gave several legacies, and if the legatees died, or 
 married without consent of her trustees, she bequeathed the legacies 
 " to the residue thereinafter specified in her icill." She also bequeathed 
 to A. B. and C. " as trustees in general of all her property," a specified 
 sum on the particular trusts, on failure of which, it was to go as he 
 should thereafter direct. " All the remainders of her different be- 
 quests," she gave E. and F. for charitable purposes, and anything not 
 specified, she committed to the discretion of her executors; and desired 
 them to make some donations to the poor, and begged A. to accept the 
 pictures not othencise mentioned. The Lord Chancellor thought it was 
 a will that did not give the general residue in such a way, that either the 
 next of kin, or executors, could take it; and that if the question 
 were between them onh', there would be great difficulty in saying the 
 executors should not take it ; for that no case had gone the length of 
 holding executors to be trustees for next of kin, under a bequest for 
 such purposes as they in their discretion should think fit ; and his Lord- 
 ship held, that after the donation to be made to the poor, which, he 
 said, was almost unlimited, the general residue of what ^vas purely per- 
 sonal estate, was to go to charitable purposes. 
 
 110. Pratt V. Sladden, 14Ves. 193. (1807.) The testator, " as to 
 all his worldly estate, both real and personal, disposed of it as follows." 
 He then devised some real estate, and after giving a legacy of 800/. to 
 A. B. and several other legacies, gave 200/, to the children of his 
 deceased nephew J. H. and directed his executors, the said A. B., and 
 J. S. thereafter appointed, to place out the same at interest, in trust 
 for such children; and to accumulate the interest, which was to be
 
 LAW TRACTS. 21 
 
 by his said trustees placed out as the princijial ; and the t stato 
 directed Jiis said trustees to divide the 200L and accinnvdutions as 
 tlierein mentioned. The testator gave other legacies to be laid out at 
 interest, and spoke of A. B. and J. S. as his said trustees ; and charged 
 his personal estate with the payment of his legacies, and directed his 
 debts to be paid out of the residue of his personal estate not thereby 
 disposed of, and appointed A. B. and J. S. executors. Provided, and 
 his will was that his said executors and trustees, and the survivor, &c, 
 should and might reimburse tliemselves all costs and expenses, ^c, 
 and should not be answerable one for the other, &c. By a codicil, he 
 gave M. T. some articles of furniture, to be selected by his executors, 
 and gave all the rest of his household furniture to E. S. for life, an in- 
 ventory to be taken thereof by his executors, and after E. S.'s death, he 
 gave the same furniture, &:c. to A. B. Executors held entitled to the 
 residue. 
 
 ill. King v. Deiiison, 1 Ves. and Bea. 2G0. (1813.) See this case 
 ante, No. 19. 
 
 112. Southhouse v. Bate, 2 Ves. and Bea. 39G. (1814.) See this 
 case ante. No. 20. 
 
 113. Giraud \. Hanhury, 3 Mer. 150. (181/.) Testator appointed 
 A. and B. in conjunction with his wife, executors of his will, hoping 
 they would he so good out of respect to his wife to accept the same. 
 He then said, " as to what ivorldly property/ I have, I dispose of the 
 same as follows," viz. to his wife, his furniture, &c.; to A. and his wite, 
 and B. ten guineas each for mourning. He then gave his wife the 
 interest of certain funds for her life, and made other bequests, but did 
 not dispose of the residue. Held that executors were intended to take 
 an office only, and distribution decreed. 
 
 114. Gladding v. Yapp, 5 Ma(ld.56. (1820.) Testator gave a 
 messuage, &;c. and all his household furniture, stock, &:c. to J. W.; but 
 declared that his (testator's) sister C. Y. was to live in the house and 
 have the use of the furtiture if she liked; and after making other 
 bequests, he appointed his sister C. Y. to be his sole executrix, and 
 directed that J. P. should have power jointly to call up any monies due 
 on bond, ^c. to discharge his funeral expenses, debts, ^r. as soon as thei/ 
 should think meet, keeping a proper account of the same, and gave unto 
 J. P. 50/. for his trouble. Parol evidence was admitted for the exe ■ 
 cutrix ; and it was decreed she was entitled to the residue. 
 
 3d Branch. Cases were legacies were given to the testator's 
 next of kin, and it was argued they were not intended to 
 take any thing more. 
 
 115. Bayley v. Pou-ell. (1698.) See this case, ante, No. 7.
 
 22 LAW TUACTS. 
 
 IIG. rachell v. Breton. (l/OO.) See this case ante, No. 8. 
 li;. Fanbigtonx. Knighlley. (1710.) J»Ye, No. 9. 
 
 118. Jtachjiddx. Careless. (1723.) ..-/Hfe, No. 40. i-i.li 
 
 119. Harper- v. Zee, Moseley, 3. (1723.) Testator gave all lijs 
 houses, iv;e. and goods whatsoever to his wife for life, and then to his 
 nephew H. L. all his books, &;c., ond as to any peo'son ivho might have 
 a claim as related to him, he gave them Is. apiece, and made his 
 wife executrix. Wife held entitled to the residue, on the intent shown 
 by testator that next of kin were not to take. 
 
 120. Davers V. Dewes. (1730.) See OM/e, No. 39 and No. 79. 
 
 121. Owen v. Oicen, 1 Atk. 494 ; and Page v. Page, 2 P. Wms. 489. 
 (1738.) Testatrix gave legacies to all her next of kin except one, 
 and then gave all the residue of her personal estate to her two nieces 
 A. and B. equally, and appointed A. and B. executrixes accordingly. 
 A. died before testatrix, and B. was held a trustee of the lapsed share for 
 next of kin. 
 
 122. Tomkyns v. Tomkyns, Reg. Lib. B. 1743. ./o/. 273. (1743.) 
 In this case the testator by his will gave henejicial legacies to his 
 brothers and sisters and their children, and a legacy of 200/. to his 
 brother Joseph, whom he a))))ointed his executor. The executor claimed 
 the residue, on the ground that legacies were given to the next of kin. 
 But Lord Hardwicke decreed a distribution. 
 
 ; 123. Humphrey v. Tayleur. Amb. 136. (1731.) Testatrix by her 
 will ^ave to any one who shoidd claim as her next of kin. Is.; and then, 
 after giving several legacies, gave all the residue of her real and 
 personal estate, after payment of her debts and legacies, to A. and B., 
 whom she appointed executors. By a codicil, she revoked her will as 
 to B., held that A. was entitled to the whole, and Lord Hardicicke 
 seemed to think that, putting residuary bequest out of the question, A. 
 would have taken the whole, the bequest of a shilling to the ne.rt of kin, 
 showing they were not intended to have the residue. 
 
 124. Bowkerv. Hunter, see ante. No. 25. (1783.) 
 
 125. Chennell v. Lewthwaite, and Thornton v. Tracy, see these cases 
 ante. No. 57. (1794.) 
 
 126. Abbott V. Abbott, see ante, No. 59. (1801.) 
 
 4//t Branch. Cases where the persons appointed executors, or 
 some of them, were infants or married women, or nearly 
 connected with the testator ; and it was argued, on that 
 ground, that they were intended to take the residue. 
 
 127. Newstead \. Johnson, ante. No. 51. (1740.) In this case, the 
 executrix was a feme covert; but she was excluded from the residue, as 
 she took a legacy under the will.
 
 LAW IRACTS. 2<J 
 
 128. BlinkJiom v. Feast, ante, No. 24. (1750.) In this case the 
 executors we7'e infants, from which a presumption was raised iu their 
 favour. 
 
 129. Williams v. Jones, ante. No. 36 j (1804.) where an infant was 
 held entitled to residue, notwithstanding his co-executor was clearly a 
 trustee ; but the infant's claim was strengthened by evirlence. 
 
 130. Lord Cranley v. Hale, post, 307, stated ante. No. 107. (1807.) 
 Here the brother was executor; but, under the circumstances, he was 
 held to be a trustee of residue. So in Tomkyns v. Tomhyns, No. 122. 
 
 5 th Branch. Cases where the executors, or some of them, were 
 not appointed as private individuals, but in respect of the 
 office or situation they held, or as members of some house 
 or commercial concern. 
 
 131. De Mazar v. Pyhus, stated ante. No. 102; (1799.) where the 
 executors were appointed as " the House of Messrs. Pybus, Call, and 
 Grant," and it was said, they could not be intended to take be- 
 neficially. 
 
 132. Urquhari v. King, stated ante. No. 103; (1802.) where the 
 America?! Ambassador for the time being, was appointed one of the 
 executors : and the executors were held to be trustees on that ground, 
 coupled with others. 
 
 6^/i Branch. Cases where the executors, or some of them, were 
 made trustees under the will, previously to, or independently 
 of, their being appointed executors; or, where some of the 
 executors were clearly executors in trust, as appeared from 
 expressions or directions in the will, or otherwise. 
 
 133. Dean V. Dalton, stated ante, No. 74 ; (1789.) where the 
 trustees, xuider the will, were appointed executors by codicil ; but th^ 
 case was clearly against them on the codicil, which showed they were 
 not intended to take the residue. 
 
 134. White v. Evans, stated ante, No. 26; (1798.) where one of 
 the executors being clearly a trustee, a distribution was decreed. 
 
 135. Milnes v. Slater, ante, viii. p. 295. (1803.) Testator, after 
 directing his debts, legacies, &c. to be paid out of his personiil estate 
 but if insufficient, deficiency to be made up as after mentioned, and 
 making several bequests to his wife, and some other persons, gave and 
 bequeathed all the residue of his estates and effects, both real and per- 
 sonal, to A. and B., their heirs, &c. in trust, in case his personal 
 estate should not be equal to the payment of his debts and legacies, to 
 raise money to make up the deficiency : and subject thereto, upon trust, 
 to settle the same, to the use, &:c. On failure of which uses, part of 
 the estates were to be conveyed to C, chargeable with a sum for D ,
 
 54 I -^^V TRACTS. 
 
 The testator directed that any mortgages aflfecting the estates, sliouUI 
 not be pai«l off out of his personalty ; and appointed liis wife and B., 
 C. and D. executors. B., being a trustee, was held to exclude all the 
 executors from the residue. 
 
 13(i. Sadler v. Turner, ante, viii. p. G17. (1S03.) After several 
 other bequests, the testator bequeathed the residue of his fortune in 
 India, as well as a 'particular sum in the linglish funds, to his two 
 children, and appointed J. S., G. N. J., and C. W. his executors in 
 England; and J. W. and C. F. INI. his executors in India; and directed 
 his last-named executors to remit his jvoperti/ from India to England. 
 The 2^laster of the Rolls held, that the executors in India could not 
 claim the residue, and thought it a necessary consequence that the 
 others could not ; for if one executor was a trustee, all must be so. 
 
 137. rrdUanis y. Jones, iitatcd ante, No,3(i. (1S04.) In this case one 
 executor was allowed to take, under the circumstances, although the 
 other was clearly a trustee. See further, cases in Fifth Class, post. 
 
 138. Bull V. Kingston, 1 IMer. 314. (181G.) The executor, being 
 made a trustee, and having legacies given him, was held clearly ex- 
 cluded, though it was contended there was enough in the will to 
 show he was intended to take the residue beneficially. 
 
 2d CLASS. Cases where the residue was disposed of, either to the 
 executors, or some other persons, and all, or some of them, died 
 before the testator ; or the bequest was void ; or was revoked as to 
 some part, by a subsequent codicil. 
 
 First Division. Cases, where the residue was given to the exe- 
 cutors, or some one of them, who died in the testator's lifetime ; 
 or where such bequest was revoked. 
 \39.^Hjintx. Beverley, {ox Berkeley) 1 Eq. Cas. Abr. 243. (1730.) 
 A., after giving several legacies, bequeathed all the residue of his 
 personal estate to three persons, whom he appointed executors : one of 
 them died before the testator, and it Avas held tliat his share survived to 
 the others. 
 
 The same case is reported more fully and accurately in IMosely, 
 p. 47, where it is stated, that the testatrix gave a silver tea-kettle, &;c. 
 to B., and several pieces of plate to A. S. and F. W., and the residue of 
 her plate to C. ; and gave the residue of her personal estate to F. W., 
 B., and D., equally to be divided between them; and also made 
 them executors. A. S. and F. W. died before the testatrix, and it was 
 held, 1st, that the articles of ])late given to A. S. and F. W. fell into 
 the general residue, and did not pass to C. ; and, 2dly, that the lapsed 
 share of F. W. in the general residue was distributable amongst the 
 next of kin ; the residuary bequest showing that the executors were not 
 intended to talie any thing as executors,
 
 r.AW TRACTS. 25 
 
 140. Owen v. Owen, antl Page v. Page; see these cases stated 
 ante. No. 121. (17«38.) Here the residue was l)equeathed to the 
 executors equally ; and on the death of one of them, the other was 
 held a trustee of the lapsed share. 
 
 141. Humphrej/ v. Tayleur, stated ayite, No. 123. (1751.) In this 
 case there was a joint hequest to two executors of the residue; hut, 
 by a codicil, the Ijequest was revoked as to one of them, and it was 
 held that the other took the whole. 
 
 142. JVilson \. hat, 2 Ves. 166. (1751.) Testator appointed his 
 wife and B. executors, and gave his wife several legacies, and made 
 her residuary legatee. She died in the testator's lifetime, and B. was 
 held entitled to the benefit of the lapse. 
 
 142*. Bennet v. Batchelor ; (1789.) see this case stated pos^. No. 160. 
 2d Division. Cases where the residue was given to some person 
 or persons, who, or some of whom, died before the testator. 
 
 143. Bagwell V. Day, stated ante. No. 90. (1721.) In this case the 
 executor was called executor in trust, and was not allowed to take 
 a lapsed share of the residue. 
 
 144. Haivkings \\ Mason, stated aiite. No. 32. (1727.) In this case 
 the executors were held entitled to the benefit of the lapse. 
 
 145. Mann v. Mann, stated ante, No. 67. (1731.) Here the residue 
 was given to four persons equally, and on the deatli of two of them, 
 before the testator, the executrix was held entitled to their shares, 
 notwithstanding she took a benefit under the will. 
 
 146. Androvin v. Poilbank, stated ante, No. 94. (1745.) In this 
 case the executor was not allowed to take a lapsed share, there being- 
 expressions in the will which made him an executor in trust. 
 
 147. Lord North v. Purdon, stated ante, No. 82. (1752.) Here the 
 executors were clearly excluded from taking the benefit of a lapse, 
 by an intent appearing on the will to bequeath the residue from them. 
 
 3d Division. Cases where the testator's personal estate, or some 
 part thereof, was ■bequeathed to charitahle jmrposes, and 
 came within the statute of mortmain. 
 
 148. Middleton v. Spicer, 1 Br. Ch. C.201. (1783.) Testator be- 
 queathed leasehold for years to be sold, and gave the produce to a 
 ciiarity; and gave equal legacies to his executors. There were no 
 next of kin, and it was held that the crown, and not the executors, 
 was entitled to the money arising from the leasehold, the bequest to 
 the charity being void. 
 
 4th Division. Cases where, after a bequest of particular articles 
 of furniture, there was a gift of all the residue of the same 
 furniture; and on the death of the persons to whom the
 
 20 LAW TRACTS. 
 
 particular artick^ were given, it became a question whether 
 the residuary legateeof the furniture, or the general residuary 
 legatees, or executors, are entitled. 
 
 149. Hunt V. Beverley, (or Berkeley), stated ante, No. 139 ; 
 (1730.) where the specific articles were hekl to fall into the general 
 residue. 
 
 3d CLASS. Cases where the residue was i^lven to the executors, and 
 the question was, whether the residue of money arising from real 
 estate was included therein. 
 
 150. Mallabarx. Mallahar, Cas. tept. Talbot, 78. (1735.) Devise 
 to A. in trust, to sell, and out of the monies to pay debts, and several 
 legacies given by the will ; and after "payment thereof, the testator gave 
 all the residue of his personal estate to A. whom he appointed executor. 
 It was held, that the money arising from the real estate was included, 
 and passed to tbe executor. See note at the end of Colins v. Wake- 
 man, ante. ii. p. 683. and the cases there, No. 19 to 2.9, both in- 
 clusive. 
 
 4th CLASS. Cases where the residue was given to the executors ; 
 but it was doubtful whether they were bound to apply it to other 
 charitable purposes ; or were entitled to it themselves ; or were 
 trustees of it for next of kin. 
 
 151. Morice v. Bishop of Durham, ante, ix. p. 399 j on appeal, 
 ante, x. p. 522. (1804, 1805.) Testatrix, by her will, bequeathed all 
 her personal estate to B., his executors, &:c. upon trust to pay her 
 debts, legacies, &c. and to dispose of the ultimate residue to such 
 objects of benevolence and liberality, as B. in his own discretion should 
 most approve of; and appointed B. executor. It was held, that the 
 trust being so indefinite, the residue was undisposed of, and B. was 
 considered as a trustee thereof for the next of kin. 
 
 152. Paice v. Archbishop of Canterbury, stated ante. No. 109. 
 (1807.) In this case the testatrix gave all the remainders of her 
 different bequests to the executors for charitable purposes, and com- 
 mitted the general residue to the discretion of her executors, and 
 desired them to make some donation to the poor, ficc. and it was con- 
 sidered a bequest for charitable purposes. 
 
 153. Gibbs v. Ramsey, 2 Ves. and Bea. 294. (1813.) Devise and 
 bequest of real and personal estate in trust to sell, and out of the money 
 arising from the real and personal estate, to pay debts, legacies, &:c. and 
 the testatrix gave all the residue of such monies to her trustees {u-ho 
 were also executors) , to be disposed of unto such person or persons, and in 
 such manner, 3fc. as they, in their discretion, should think proper and 
 expedient. And it was held, that the trustees and executors, had
 
 LAW TRACTS. 27 
 
 ^kherTthe ajasolute property In the residue of the money arising from 
 tji^ real and personal estate, or had power to appoint it ; and that, in 
 either case, neither the heir nor next of kin were entitled. 
 
 5th CLASS. Cases where there was a general disposition of the 
 testator's estate and effects, to persons afterwards appointed exe- 
 cutors, in trust, to sell, for payment of debts and legacies, or other 
 purposes, and to apply the remainder of the monies, or some 
 particular parts thereof, iqjon or for certain trusts, or pu7'poses 
 which failed, or could not be effected; or where a partiaclar 
 interest in the produce was given, but no disposifion of the principal; 
 or where trusts were intended to have been declared [of the re- 
 sidue, but were not; or where no disposition at all was made of 
 the residue. 
 
 154. May V. Lewin, mentioned in note (1), 2.Wms. 159. (1720.) 
 Testatrix, after payment of her debts, legacies, &c. gave all her real 
 and personal estate to A. and B. in trust, to sell, and pay the interest 
 of the money arising from real and personal estate to her mother for 
 life ; and then gave several small legacies, to be paid at her mother's 
 death; and appointed A. and B. executors. The executors were held 
 to be trustees of the residue for the next of kin. 
 
 155. IFheelerY. Sheers, Mose\ey,2SS,30\. (1730.) Testator, after 
 giving several legacies, gave all the residue of his personal estate (his 
 debts, &:c. being discharged) to his executors, in trust, that what re- 
 mained above 2001. to each of them, and lOOZ. to be deducted out of 
 the residue, they should employ to such charitable uses as the testator 
 should, by codicil, appoint, and appointed his two brothers executors. 
 The testator made three codicils, but declared no trust of the residue ; 
 and distrilnition was decreed amongst the next of kin. 
 
 156. Dawson v. Clarke, post, xv.;p. 409. (1809.) Testator, by his will, 
 bequeathed to his friends A. and B. all his estate and effects, upon 
 trust, in the first place to pay, and charged with, all his debts, 
 legacies, &c. ; and after several other legacies, gave 1200/. to be laid 
 out by the executors in freehold property, for purposes, which came 
 within the stat. of mortmain; and appointed A. and B. executors. 
 Held that the executors (putting the bequest to them out of the question) 
 were entitled to the residue as executors, and that the 1200/. was 
 included therein. 
 
 157. King V. Denison, stated ante. No. 19. (1813.) In this case 
 there was a bequest of the personal estate to the persons afterwards 
 appointed executors, subject to payment of debts, &:c. and no disposition 
 of the residue. But the executors were excluded, as they took equal 
 legacies.
 
 28 L\W fUACTS. 
 
 loS. Southhduxe V. Bate, stated ante. No. 20. (1S14.) In this 
 case the testator gave the whole of his estate to the persons afterwards 
 appointed executors, Mpon trust to apply the whole of it to the paymeyit 
 of his debts; and also gave them equal legacies. Distrihution was decreed. 
 
 Qth CLASS. Cases, where it was douhted, whether the hecjuest made 
 to the executors hy the will, gave them a part of the residue, 
 so as to exclude theni from the remainder. 
 
 159. Nisbet v. Munayj ante, v. p. 149. (1/99.) Testator residing in 
 Jamaica, gave to D. M. and J. G. 20/. a piece to buy mourning rings, 
 and after certain bequests of West India property, gave all the rest of his 
 estate, both real and personal, in the island of Jamaica, to D. M. and 
 J. G. in trust, to sell, and the monies produced thereby to be remitted 
 to England, and invested. He then gave specific sums out of such 
 monies, to his three reputed sons, and the remainder of the said monies 
 to D. IM. and J. G, whom he appointed executors. It was doubted 
 whether the bequest of the residue of the monies, was specific or not ; 
 or whether it was sufficient to exclude the executors from the general 
 residue ; but it was unnecessary to decide the point, as they were clearly 
 excluded by the legacies of 20/. apiece. 
 
 160. Bennet wBatchelor, Ves.Jun.xiv.p. 19. (1789.) The testator gave 
 to Jane Powell his household goods, &c. and all other unhequeathed 
 goods and chattels that should be in his possession at the time of his 
 death, except particular legacies of plate, &c. mentioned in his will ; 
 and he also gave her all his rents, and all other monies due to him, 
 that she might discharge the demands upon him ; and he appointed 
 Jane Powell and two other persons, to whom he gave small legacies, 
 his executors. Jane Powell died before the testator ; and it was held, 
 that the bequest to her was residuary ; and, therefore, that the surviving 
 executors were trustees for the next of kin.
 
 A\V TRACTS. 29 
 
 GENERAL RULES 
 
 TO BE 
 
 COLLECTED FROM THE PRECEDING CASES. 
 
 From the preceding cases, the following general rules may be col- 
 ected : — 
 
 \st. Where the executors take equal pecuniary legacies, or where a 
 sole executor takes a legacy, whether for mourning or otherwise, they, 
 or he, will be excluded from taking the residue beneficially ; because 
 the testator, by giving them, or him^ that which they, or he, would have 
 been entitled to as executors or executor, if they, or he, were intended 
 to take the benefit of the right which is attached by law to the office 
 of executor, is presumed to mean that they, or he, should not take such 
 benefit. See cases in 1st CI. 1st Div. 1st and 4th Branches, p. 60*. 63*. 
 But where there are several executors, and ©ach has a specific legacy, 
 though such legacies may happen to be of equal value, the executors 
 will not be held excluded from the general residue ; because, under such 
 bequests, they would take the subjects thereof, in a different manner 
 from what they would as executors ; for, under the will, each would 
 take the entirety of the thing given him ; but, as executors, all would 
 have an equal share. But, where any specific thing is given to the 
 executors jointly, then the same presumption will be raised against 
 them, as in the case of equal pecuniary legacies being given to them. 
 See 1st CI. 1 Div. 1st Br. No. 12, p. 61*. And, it is to be observed, 
 that the executors will not be excluded from the residue, by reason of 
 legacies being given them, unless the same are payable out of, or form 
 part of, the personal estate of the testator. See 1st CI. 1st Div. 9th 
 Br. p. 66*, a7ite. 
 
 2d. Where there are several executors, and they all take legacies, 
 but not of the same amount, or some only of them, have legacies, they 
 will not he excluded from the residue ; 1st CI. 1st Div. 2d and 3d Br. 
 p. 61*, 62*, ante. 
 
 3d. Where part of the residue is given to the executors, they will 
 not be allowed to take the remainder; as, from the testator having 
 given them a part, a presumption arises that they were not intended 
 to take the remainder ; 1st CI. 1st Div. r)th Br. p. 65*, ante. 
 
 4th. Where only a partial or particular interest is given to the 
 executors, with an ulterior disposition to another, the executors will 
 not be excluded: for in such ca&e, it will be presumed, that the
 
 gO LAW TRACTS. 
 
 testator confined his gift to the executors to a particular interest, merely 
 for the purpose of giving the subject of it over to another. But where 
 a particular interest is given, tcithmit any further disposition, there 
 seems j^rounds to presume that the testator intended the executor 
 should take nothing farther. If he intended they should take ab- 
 solutely, he would have given them the principal at once ; when he 
 had no object to answer in giving them only a limited interest ; 1 CI. 
 1st Div. Gth Br. p. ()5*. 
 
 5th. \^'here legacies were given to persons by will, and they are after- 
 wards appointed executors by codicil, they Avill not be excluded from 
 the residue, for it may be presumed that the testator, in appointing 
 them executors, intended to give them a further benefit; but where the 
 executors are appointed by will, and legacies are given them by a 
 subsequent codicil, they will be excluded, on the presumption that the 
 testator intended to retract the benefit he had originally intended 
 them, and to give them particular legacies instead; see Ist CI. 1st Div. 
 10th Br. p. 66*. 
 
 6th. Where it appears by the will that the testator intended to 
 dispose of the residue, as where there is an unfinished bequest of it, &c. 
 the executors will not be allowed to take it; 1st CI. 2d Div. 1st Br. 
 p. 67'^, ante. 
 
 7th. \Vhere there is any expression in the will, implying a trust, or 
 office only, in the executors, they will not be allowed to take the re- 
 sidue ; 1st CI. 2 Div. 2 Br. p. 68. 
 
 8th. Where it appears on the will, that the testator intended to 
 exclude his next of kin from any benefit, as where he gives them a 
 nominal legacy, &c, a strong presumption will be raised in favour of the 
 executors ; but where he gives his next of kin beneficial legacies, it will 
 not affect the case ; 1st CI. 2d Div. 3d Br. p. 70*. 
 
 dth. Where the persons appointed executors, are infants, or married 
 women, or nearly connected with the testator, it will raise a presumption 
 favourable to them, particularly where they are infants or married 
 women ; 1st CI. 2d Div. 4th Br. p. 71*- 
 
 \{)th. Where the executors appear to have been appointed, not as 
 private individuals, but in respect of the office or situation they hold, or 
 as members of some commercial house or establishment, it will raise a 
 stronger presumption against them ; 1st CI. 2d Div. oth Br. p. 71*. 
 
 Wth. Where there are several executors, and some are clearly 
 rendered trustees by the will, or are clearly intended to be excluded 
 from the residue, they will all be excluded; for if they take at all, they 
 must take jointly; 1st CI. 2d Div. 6th Br. p. 71*. 
 
 Vllh. Where the residue is bequeathed to the executors equally, 
 and one dies, the others will not be allowed to take his share, it
 
 LAW TRACTS. 31 
 
 being presumed, that the testator having given the residue to them as 
 legatees, did not intend them to take anything as executors ; where the 
 bequest is to them jonitly, of course, it survives ; 2d CI. 1st Div. p. 72*. 
 
 13f/z. Where there is a bequest to other persons, vv^ho die; or for a 
 purpose which fails, or cannot be effected, the legacy falls into the general 
 residue, and will go to the executors ; 2d CI. 2d, 3d, and 4th Div. p. 73*. 
 
 14^/i. Where the executors are directed to apply the residue, or any 
 part of it, or there is a bequest to them of a particular sum to he 
 applied; but the objects or purposes are not pointed out clearly 
 enough to enable the court to direct the ajjplication of it to any particular 
 object or purpose, and there is not sufficient evidence of a general 
 intention to have it applied to charitable purposes, a presumption will 
 be raised that the executors were not intended to have it, and a distri- 
 bution will be decreed ; 4th CI. p. 73*. 
 
 loth. Where there is a bequest to persons appointed executors for 
 particular purposes; or a particular interest is given, but no trusts are 
 declared of the residue, or of the principal ; or, being declared, fail ; or 
 where trusts were intended to be declared, but were not ; it will 
 depend on the construction of the will ; but, in general, it aflfords a pre 
 sumption against the executors ; 5th Cl. p. 74*. 
 
 But, it is to be observed, that in all cases, where the residue is not 
 disposed of, the executors are entitled to it in equity, as well as at law, 
 unless there is strong ground for a presumption against their legal 
 right : and in such cases they may adduce evidence to rebut the pre- 
 sumption ; see note at the end of Langham v. Sandford, post, xix 
 p. 641, where the authorities on the subject are stated, and the 
 general rules respecting evidence in such cases are mentioned.
 
 23 
 
 LAW TRACTS. 
 
 THE rOLLOVVlNG Is A LlbT OF THE CASES IN THE PRECEDING NOTE. 
 
 Abbot r. Abbot, No. ri9. 
 Andrew r. Clarke, No. l.'l. 
 Aiulrovin r. Poilljaiik, No^.'Jl, llfi. 
 Attorney-General v. Hooker, No;,. 18, 77. 
 
 Bachelor t'. Sewell, No. 21. 
 Ban-well i: Dry, Nos. 90, 1 1.3. 
 Bail I'. Smith, No. 4.'). 
 Batteley v. Hindle, No. 9/". 
 Bavley v. Powell, No. 7. 
 Blinkhorn v. Feast, Nos. 24, 128. 
 Benuet ?•. Bachelor, Nos. (Jl*, l(iO. 
 Bowker v. Hunter, No. 25. 
 Brasbridi^e v. Woodroffe, No. 22. 
 Bristol (Lord) v. Huus^erford, No. fi. 
 Buttar V. Bradford, No. 23. 
 Bull V. Kin-ston, Nos. 61, 138. 
 
 Carey r. Goodinge, Nos. 15, 9!>. 
 Channel v. Lewthwaite, Nos. 57, 100. 
 Cloyne (Bishop of) v. Young, No. fel. 
 Cooke V. AValton, No. 43. 
 Cordel v. Noden, Nos. 4, 88. 
 Colesworth r. Bran<;-win, No. 31. 
 Cranky (Lord) v. Hale, Nos. 107, 130. 
 
 Davers 4'. Dewes, Nos. 49, 79, 92. 
 
 J^awson V. Clarke, No. 150. 
 
 13e?n v. Dalton, Nos. 34, 74, 9"., 133. 
 1).^ iMazar v. Pvbus, Nos. 102, 131. 
 D cks V. Lambert, Nos. C2, (J9. 
 
 Jjurweil V. Bennett, No. 30. 
 
 Fane v. Faiie, Nos. 1, 86. 
 Farriiigton ;■. Kniijhtiy, No. 9. 
 Foster v. Mount, Nos. 2, 87. 
 
 Gladding v. Yapp, No. 114. 
 fiibbs v. Ramsay, No. 15.'?. 
 Giraud v. Huiibury, Nos. 29, ll.I. 
 Gobsall V. Sounden, No, 68. 
 Grillhhs v. Hamilton, No. 37. 
 
 V. Rosters, No. 72. 
 
 Graydon v. Hicks, No. 93. 
 Granville (Lady) v. Duke of Beaufort, 
 No. 65. 
 
 Harper v. Lee, Nos. 66, 119. 
 llatton I'. Hatton, No. 50. 
 Hawkins v. IVlason, Nos. 32, 144. 
 Holfiird V. Wood, No. 58. 
 Hoskins i-. Hoskiiis, No. 64. 
 Huini)lirey r. 'I'aylcur, Nos. 123, 111.. 
 Hunt «■. Beverley, No. 139. 
 
 Joiiei V, Westcomb, Nos. 70, 71. 
 
 King V. Denison, Nos. 19, 78, 157. 
 Knewell v. Gardiner, Noi. 10, 78. 
 
 Lake r. Lake, No. 53. 
 Lanjcham r. Sanford, No. 60. 
 Lawson t'. Lawson, No. 54. 
 Littlebury r. Buckley, No. 4 1. 
 
 IMallabar r. Mallabar, No. 150. 
 Mann v. Mann, Nos. 67, 145. 
 Martin *'. Rebow, No. 55. 
 Matthews v. Courthorpe, Nos. 41, 89. 
 I\Iay V. Lewin, No. 154. 
 M'Cleland v. Shaw, Nos. 18, 73, 106. 
 Middleton v. Spicer, Nos. 14, 148. ^ 
 Milnes i'. Slater, No. 153. v 
 Mordaiint v. Ilussey, Nos. 7o, 84. 
 Morice v. Bishop of Durham, No. 151. 
 Mucklestou v. Brown, Nos. 17, 75. 
 
 Newstcad v. Johnson, Nos. 51, 127. 
 Nisbet V. Murray, Nos. 16, 63, 159. 
 North V. Furdon, Nos. 82, 95, 147. 
 Nourse v. Finch, Nos. 56, 83. 
 
 Oliver v. Frewen, Nos. .33, 96. 
 Owen V. Owen, Nos. 121, 140. 
 
 Paice r. Archbishop of Canterbury, Nos. 
 
 27, 109, 152. 
 Petit I'. Smith, No. 5. 
 Pratt V. Sladden. Nos. 39, 110. 
 Pring V. Pring, No. 3. 
 
 Rachfield v. (Careless, Nos. 46, 91. 
 Randal v. Bookcj-, No. 38. 
 Rawlings r. .lennings. No. 38. 
 Rutland (Duke of; t'. Duchess of Rutland 
 No. 47. 
 
 Sadler v. Turner, Nos. 35, 136. 
 Seley i\ Wood, No. 104. 
 Shriin])ton v. Johnson, No. 12. 
 Southcote i\ AVatson, No. 52. 
 Southhouse v. Bate, No. 20, 158. 
 
 Tonikyns v. Tomkyns, No. 122. 
 
 A'achel v. Breton, No. 8. 
 
 Urquhart r. King, Nos. 103, 132. 
 
 AN'alton r. Walton (nlias Marnell), No. 108. 
 
 AVard r. Lane, No. 40. 
 
 AVheeler v. Sheers, Nos. 11, 55, 80, 155. 
 
 White I'. Evans, No. 26. 
 
 r. Williams, Nos. 28, 85. 
 
 WillianKs v. Jones, Nos. 36, 129, 137, 
 ANilsun f, Ivat, No. 142. 
 
 *^* In the preceding Tract where the words rmte or post are followed by small 
 numerals, they refer to the Volume of Vcsey Junior's, Reports, in which the Case 
 noticed will be found.
 
 LAW TRACTS. 
 
 No. II. 
 
 OBSERVATIONS 
 
 ON 
 
 THE TITLE TO LANDS 
 
 DERIVED THROUGH 
 
 INCLOSURE ACTS. 
 
 By THOMAS COVENTRY, Esq. 
 
 OF LINCOLN'S INN, BARRISTER AT LAW. 
 
 CONTENTS. 
 
 SECTION 
 
 I. On the mode of deducing a title to all or a part of a general allot- 
 ment made in respect of lands of different tenures or derived through 
 different channels. 
 
 IL Of the title to allotments in lieu of leasehold or copyhold rights. 
 
 in. Of the clause communicating to the allotments the title of the lands in re- 
 spect of which they are allotted ; and herein of a will dated between 
 the act and award, and general words devising the right of common. 
 
 IV. Of the deduction of title to lands Exchanged tender Inclosure Acts. 
 
 V. Of allotments in lieu of tithes. 
 
 VI. Of allotments sold by the commissioners for payment of expenses, and 
 
 of the conveyance and stamp. 
 
 VII. Of allotments made to joint-tenants, particular tenants, and remainder- 
 
 men ; and of mortgages by particular tenants to raise the expenses 
 of inclosure. 
 
 VIII. Of the Award, and sales and other acts before its execution. 
 
 IX. Acceptance of allotment ; allotment to the Lord; proof of title ; Double 
 
 allotment ; liability of allotment to Poor Rates ; mode of Claiming 
 allotment ; of Timber on allotments ; of allotment of Common for 
 small jyroprietors ; Death of Commissioner ; Abstract ; Map ; 
 Parcels.
 
 LAW TRACTS, No. II. 
 
 SECTION 1. 
 
 On the mode of deducing a title to all or a part of a general allotment 
 made in respect of lands of different tenures, or derived through 
 different channels. 
 
 Inclosure commissioners assume to themselves the most arbitrary 
 control in the management of all matters connected with their trust. 
 The advice of counsel they not only never take, but uniformly 
 reject when su})riiitted to them. The remarks of solicitors too, are 
 usually treated in a way to prevent repetition. The commission- 
 ers read the act as excluding from their consideration all subjects 
 not immediately coimected with roads, i*ates, and acres. The addi- 
 tion of a few explanatory words in their award not connected with 
 those subjects, is deemed an infringement on the act and an abuse 
 of their powers. The act provides that the award shall not merely 
 express the quantity of acres in each allotment, but contain "all 
 such other rules, orders, agreements, regulations, directions, and 
 determinations, as the said commissioners shall think necessary, pro- 
 per, or beneficial to the parties^' s. ^^. If the necessity of any par- 
 ticular direction be not immediately apparent, the commissioners 
 will not admit of any explanation as to its beneficial tendency, much 
 less will they enter into a consideration of the evils of its omission. 
 The consequence is, that there is scarcely a title which is not in some 
 degree involved in serious difficulties, arising from this injudicious 
 and unadvised mode of executing the inclosure commission. 
 
 By \\\e 7th section of tlie General Inclosure Act,' it is declared, 
 that the commissioners shall not determine any dispute touching 
 title to lands, but shall set out the allotments to the persons in actual 
 possession of the lands in lieu or in right whereof the allotments 
 are made, and that no suit touching such title shall delay the divi- 
 sion or inclosure. Under a misapprehension of this section, com- 
 missioners invariably affirm, that they are prohibited from interfering 
 with titles in the slightest degree. On this principle they make 
 their allotments generally without distinguishing which allotment is 
 made in respect of freehold, and which, in respect of leasehold pro- 
 
 ' 41 Geo. .3. c. 109.
 
 LAW TRACTS. 35 
 
 perty, and without appropriating to anj farm in particular a separate 
 allotment. There is a clause in most local acts, communicating the 
 title of the old inclosures to the lands allotted. This inconvenience 
 then arises : if a proprietor has lands derived through five different 
 titles, some copyhold, some leasehold, and some freehold, and five 
 separate allotments are made to him, every part of all the allotments 
 will be subject to the whole of those titles ; that is, a purchaser can- 
 not be advised to complete his contract for the purchase of all or any 
 one of the allotments without satisfying himself as to the soundness 
 of all the five titles ; for if one title be defective, and an eviction 
 ensue, he cannot ascertain the particular allotment or part of allot- 
 ment which will be recovered ; and no prudent purchaser could 
 be advised to pay his money for land surrounded with such incer- 
 titude of possession. In one instance, says Mr. Preston, it was 
 reasonably computed that there must have been two hundred diffe- 
 rent abstracts, to show the real state of the title. In another 
 instance, continues that learned writer, "a vendor abated twenty thou- 
 sand ^ out of sixty thousand pounds, rather than have the contract 
 rescinded on account of an objection insisting on this defect ; that 
 since the lands were not ascertainable, the court could not decree 
 performance with an abatement."^ This evil is so general and alarm- 
 ing, and productive of so much inconvenience and expense, as in 
 the writer's opinion to call for immediate legislative interference, 
 empowering the old commissioners, or new ones to be duly appointed, 
 to appropriate such general allotments according to the respective 
 titles of the proprietor. Indeed, without an act of parliament for the 
 purpose, it is difficult to discover any sure mode of division. 
 In practice, three modes of partition suggest themselves : — 
 
 1st. A commission out of Chancery to ascertain metes and 
 bounds, or generally for a partition. 
 
 2d. An appropriation by the old commissioners after they have 
 signed and completed their award, under the late case of 
 Haggerston v. Dugmorc, and 
 
 3d. A conveyance of all or so much of the allotment as is free- 
 hold, and an assignment of all or so much of it as is leasehold. 
 
 With respect to the first suggestion, it is not clear that a court of 
 equity will grant a commission to ascertain the boundaries of inter- 
 
 2 It could not siirely have cost this sum to have obtained even an act of pai'lia- 
 ment, (and the legislature could scarcely have refused an act inuler the circum- 
 stances) for amendment of the defect ; but delay perhaps woidd have lost the 
 purchaser. 3 i Pj-gs. Abs. 88, 89.
 
 36 LAW TRACTS. 
 
 Tuixecl lands belonging to one proprietor. Lord Nortliington was of 
 opinion, that tlic court lias simply no jurisdiction to settle the bound- 
 aries of land unless some equity is superinduced by the act of the par- 
 ties ; and on that ground his lordship dismissed a bill to ascertain the 
 boundaries of two manors, there being no dispute as to the soil.^ Sir 
 William Grant also was of opinion, that the circumstance of a confu- 
 sion of boundaries furnished, per se, no ground for the interposition 
 of the court, and refused to entertain a bill of this description between 
 two independent proprietors to force either to have his right so 
 detei*mined.'^ The principal instances in which such commissions have 
 been granted, are where a lessee or copyhold tenant, having free- 
 holds of their own, have laid all the lands together for convenience 
 of occupation, and so confounded the boundaries that at a future 
 period it becomes difficult to ascertain what belongs to the lord and 
 what to the tenant; in which case the commission generally directs 
 that if the lands cannot be ascertained, the commissioners are to set 
 out so much of the land of the tenant as are of equal value to the 
 leasehold or copyhold premises undistinguishable.^ 
 
 It is questionable, therefore, whethci- a court of equity has any 
 jurisdiction in the case alluded to. The lands have never been divi- 
 ded and apportioned ; and to call upon the Court of Chancery to 
 make such apportionment, is to petition the court to perform the duty 
 of the inclosure commissioners. Equity might as well be called on 
 in the first instance to divide and allot, as to apportion or be the 
 means of apportioning, after the award is signed and published ; and 
 it is difficult to conceive how a commission can issue to distinguish 
 boundaries which have never been once ascertained. The fault lies 
 wholly with the commissioners of inclosure. If the five titles had 
 belonged to five separate owners, they would have allotted five dis- 
 tinct allotments; yet because they are prohibited from determining 
 disputes respecting titles, they refuse, when the five titles are con- 
 centrated in one individual, to specify in their award, which allot- 
 ment is made in respect of a particular set of lands belonging to the 
 same proprietor. Litigation as to ownership, can in no case be 
 affi3Cted by this specification, and where one person is in the undis- 
 puted possession, it is really difficult to conjecture what semblance 
 of argument can be adduced for the rejection of a request to appro- 
 priate the lands allotted to him in the award. These observations 
 suggest the propriety of obtaining some parliamentary explanation 
 
 4 Wade V. Conyers, 2 Cox, 360. * Speer v. Crawler, 2 Meriv. 418. 
 
 " Attorney General v. Fiillarton, 2 Ves. & Bea. 264. Leeds, Duke v. Straflford, 
 4 Ves, 180. Hove. Frauds, 239.
 
 LAW TRACTS. 37 
 
 of the 7tli section of the General Inclosure Act ; perhaps in alt 
 future inclosure acts, a clause enjoining the commissioners to receive 
 and insert in their award, any specification of appropriation which 
 the solicitor of the allottee may tender, would obviate the difficulty 
 in time to come ; but a short declaratory law, of the nature here- 
 after submitted, seems to be the only effectual mode of remedying 
 the evil in cases that have occurred. 
 
 , A bill in equity for partition seems more inapplicable than a com- 
 mission to ascertain boundaries. This is evident on the slightest 
 consideration. Neither by the common law, nor by the statutes of 
 Hen. 8. and Will. 3. could a remedy possibly have been anticipated 
 by way of writ or bill for partition. 
 
 Secondly. The case of Haggerston v. Dugmore^ was shortly this — 
 The commissioners made their award in 1811, having previously 
 levied a rate for completion of the roads rendered necessary by the 
 inclosure. The roads were not finished at the time the award was 
 executed ; and four years after y it was found that the sum assessed 
 for perfecting them was very inadequate for the purpose. The com- 
 missioners then levied a fresh rate, and the question was, whether this 
 rate was legally imposed. It was contended on the part of the occu- 
 piers, that the commissioners, before they executed their award, 
 might have limited a time for completing the roads, and imposed a 
 rate to defray the expenses of the same; but having made their 
 award, their authority, like that of other arbitrators, was wholly at 
 an end. Bayley, J. thought that as there was not any express 
 provision in the Act that the award should be final, it followed from 
 the nature of the subject, that the power of the commissioners should 
 continue until they had finally executed the duty imposed on them, 
 one part of which duty was to complete the roads. And per Hol- 
 royd, J. the power of the commissioners must, from the reason of the 
 thing, continue till they have fully executed the duty imposed tipon 
 them by the Act ; till the roads have been comjdeted, they have not 
 fully discharged their duty, and therefore their authority is not fully 
 executed. The argument (if of any weight) rather went to aflfect the 
 award of the commissioners, than to prove that they had executed 
 their authority. The court, therefore, refused a rule to set aside a 
 nonsuit, which declared that the rate was legally assessed. 
 
 From this case it may be inferred, that inclosure commissioners 
 have power to make a second award, if the first be imperfect, or not 
 fully executed. If the commissioners could be prevailed upon to 
 
 7 Haggerton v. Dugmore, 1 Barn. & Aid. 82.
 
 38 LAW TIIACTS. 
 
 execute such second award to meet the evils above alhided to, (but 
 which they would not i)crhaps very readily do,) a purchaser would 
 probably find considerable difficulty in attempting to rescind his con- 
 tract, on the ground that the lands were not sufficiently ascertained; 
 but of course, implicit reliance cannot be placed on this general 
 inference, in the absence of decision, especially as the above-men- 
 tioned case turned on matter of necessity ; whereas, the defect in 
 contemplation may be said to be matter of convenience only. 
 
 The third mode of partition can obviously apply to those few cases 
 only, where the lands are derived through two or three fight titles ; 
 and then if one title be leasehold, and the purchaser has contracted 
 for freehold, and insists on a conveyance of freehold entirely, the 
 plan is rendered entirely nugatory. Besides the inconvenience of 
 tracing three titles, freehold, copyhold, and leasehold, even if they 
 ace not individually of any great extent, with attested copies, cove- 
 nants to produce, &c., a future purchaser may object to complete his 
 title without a strict legal division of the allotments, on the ground 
 that the expense of such division may ultimately fall upon himself; 
 and if his object be a vote for county elections, it is questionable 
 whether he can be denominated a freeholder, when his land may 
 eventually be declared to comprise the entire allotment in respect of 
 the leasehold property of the former owner. 
 
 On the whole, therefore, an act of parfiament seems the only sure 
 mode of meeting the evil ; and it would evidently be to the interest 
 of all owners of land so situated, to petition parliament for general 
 relief, rather than be put to the expense of a separate act for each 
 individual case. Such act may empower and enjoin the old com- 
 missioners, where they are living, to review their awards at the 
 request of the owners of the allotments, and to make a supplemental 
 award specifying the required appropriation. If the old commis- 
 sioners are dead, then it may provide that new ones be appointed, 
 pursuant to the requisitions in each respective act, for the aforesaid 
 purposes and for the completion and correction of all other unfinished 
 or informal proceedings and transactions under each respective act. 
 Or a general set of commissioners may be appointed to make and 
 register the requisite specification; or perhaps, the better enact- 
 ment would be, to allow the owners themselves, by deed enrolled 
 with the clerk of the peace, to declare their election, which allotment 
 shall be in lieu of one title and which of another, and each title may 
 be referred to by the last purchase deed, or by a schedule containing 
 the principal documents.
 
 LAW TRACTS. 39 
 
 SECTION II. 
 
 Of the title to allotments in lieu of Leasehold or Copyhold rights. 
 
 With respect to Leaseholds, it is clear from the decided cases,' 
 that the allotment as it comes from the commissioners, is, in point of 
 estate, a freehold in fee simple of the tenure of common socage ; 
 and the provision in most local acts communicating the original title 
 to the land allotted, conveys the legal estate of the allotment to the 
 use of the allottee, for the term, vi^ith remainder, to the use of the 
 reversioner in fee. If, however, that provision be omitted in the 
 local act, it is apprehended, that as no provision of a similar import 
 is in the general act, the lessee will be entitled to the allotment in 
 fee simple — in trust, nevertheless, after the expiration of the term 
 for the reversioner in fee ; and it is probable he would be compelled 
 to convey to uses corresponding with the beneficial interests in the 
 estate. 
 
 In reference to Copyholds, it has been expressly decided, that allot- 
 ments to a copyholder in lieu of his rights of common, are of a free- 
 hold and not of a copyhold tenure, though the copyholder himself 
 should even agree that the allotments be held by copy of Court Roll 
 according to the custom of the manor. In a late case," an issue was 
 directed under an inclosure act, to try whether allotments made to 
 copyholders in respect of their copyhold lands and rights of common, 
 were freehold or copyhold. The cause was tried at the assizes, but 
 the point was reserved for the opinion of the Court of King's Bench. 
 Ashhiu'st, J. in delivering the opinion of the court above, said, that 
 to decide the question in dispute, it was only necessary to consider 
 what was the nature of a copyhold, and what were the incidents inse- 
 parable from it. It had been clearly held, that a copyhold must be 
 time out of mind, and could not begin at this day.^ Then, was the 
 land now in question ever demised, or demiseable? and had the 
 custom of the manor ever taken hold of it? It clearly had not. 
 Then, it never could be copyhold, and of course must pass as free- 
 hold. But it was argued that this should become copyhold by ope- 
 ration of law, as the accessary must always follow the nature of its 
 
 1 Doe V. Davidson, 2 Maiile & Sehv. 175. Townley v. (iibson, 2 T. R. 171. 
 
 2 Revell V. JodreU, 2 T. R. 424. 
 
 * Co. Litt. 58 b. Kempe v. Carter, 1 lieon. 55.
 
 40 LAW T«ACTS. 
 
 principal. The misfortune was, that no instance had been shown 
 in which a copyhokl was ever created by operation of law ; and for 
 this plain reason, that a copyhold was not a creature of law but of 
 fact ; it must have custom to support it, and could not be created 
 by any other mode, unless by act of parliament, which might operate 
 as an estoppel to any man to say that it had not existed time out of 
 mind. Therefore, on the whole, their lordships were very clearly of 
 opinion, that the allotments in question were freehold, and the pos- 
 iea was directed accordingly. 
 
 In a second case,"* allotments were made to W L, in respect of 
 several customary estates, of which he was seised in fee according 
 to the custom of the manor, under an agreement between the lord 
 of the manor and the commoners, that the common should be divided 
 between them ; and an award Avas made in pursuance of this agree- 
 ment, which was afterwards confirmed by an Inclosure Act. The 
 act saved to the lord the seignories, and all rents, services, courts, 
 &c., and all other royalties, jurisdictions, and pre-eminences incident 
 to the manor, in tarn amplo modo as he might have enjoyed the same 
 in case the act had nut pci&sed -, and also contained a clause that 
 nothing should alter or annul any settlements, &c. affecting the lands 
 to be inclosed, but that the several allotments should be held by 
 the several persons to whom they were allotted to the same uses, 
 and for the same estates, and subject to such limitations, &c. as 
 the lands in respect of which such allotments were made were limited 
 and subject to. 
 
 The questions in the cause resolved themselves to this, M'hether 
 the allotments to the tenants were of the same tenure as their custo- 
 mary estates. It was argued, that the saving clause in the act must 
 have had the effect of making these allotments customary tenure ; 
 for otherwise they would be freehold with incidents inconsistent with 
 a freehold tenure. The judges, however, thought differently. In 
 delivering their opinions seriatim, Lord Ellenborough said, that if 
 it were the intention of the parties, by the agreement, to constitute 
 an estate of a customary nature in these allotments, it was a thing 
 which by the law of the land they were not competent to do ; because 
 it was an essential quality of such an estate, that it must have been 
 jmmemorially demised or demiseable as customary estate ; and as it 
 must always have been of such quality, it followed that this quality 
 could not be created by any modern agreement. The several clauses 
 in the act of parliament did not mean, that because the original 
 
 4 Doe V. Davidson, 2 Maule & Sehv. 175.
 
 J, AW TKACrs. 41 
 
 estates were in their tenure eustomary, therefore the nllcxtted estates 
 should follow the same tenure and be customary too; but that where 
 there happened to be any settlement or conveyance then subsisting, 
 of the lands in lieu of which the allotments were made, whether such 
 settlements, &;c. might have carved out estates for life, in tail or in 
 fee, such settlement or conveyance should aftect the lands allotted, 
 as well as the original estate : in short, that the allotments should be 
 subject to the old uses ; and per Le Blanc, J. — 
 
 The clause in the act, that nothing therein should tend to defeat 
 the lord's seignory, merely reserved to him the same rights over the 
 freehold land, now become the freehold of the tenants, which ho 
 before enjoyed as lord over the same land when it was his own free- 
 hold. — Bayley, J. was of the same opinion. The act was not meant 
 to interfere with the tenure of the lord and the several persons to 
 whom the several allotments were made, but merely to regulate the 
 interests of the several persons as to the course or channel in v/hich 
 the allotments should go ; and as to the proviso in favour of the lord, 
 he conceived no royalty or seignory incident to the manor would at 
 all be interfered with, by holding that the several tenants took a 
 freehold interest in the lands m question.'^ 
 
 And the copyholder is not only entitled to the freehold of the 
 allotment, but to the freehold in fee simple, with all mines, quarries, 
 &c. under the same, notwithstanding there be a clause in the act, 
 that the inclosure shall not "defeat the lord's seignories incident to 
 the manor." ^ Provision, however, is now usually made in inclosure 
 acts, declaring that the lands allotted in heu or respect of copyhold 
 tenements or rights of common, shall be of copyhold tenure, ancj 
 subject to the same customs, and pass by the same conveyances and 
 no other, as the lands, in respect of which they are allotted, ara 
 subject to and pass by. 
 
 Hence a copyholder may be qualified to vote at a county election 
 in virtue of his allotment, although he is not entitled to that privilege 
 by his more ample estate of copyhold. 
 
 The recent cases^ have rendered it clear that a special custom is 
 necessary to enable a lord of a manor to demise the waste portions 
 of his demesnes by copy of Court-Roll. But though there be 
 such a custom, the lord, it is conceived, cannot demise by copy 
 
 5 Doe V. Davidson, 2 Maule & Selw. 175. 
 « Townley v. Gibson, 2 T. R. 701. 
 
 7 Rex V. Warblington, I T. R. 242. Nortluvick v. Stanway. 2 Bo.';. & Pul. 
 M6. Steel V. Prikett, 2 Star. 470. Badger v. Ford, ?> Barn. & Akl. l.W, 
 
 D
 
 4g LAW IK ACTS. 
 
 an allotment made to him in respect of those demesnes; for the 
 allotment is freehold, and the customs of the manor have not 
 attached on it from time immemorial. Yet some specious arguments 
 on the ground of substitution may be advanced in favour of such a 
 demise. 
 
 SECTION III. 
 
 Of the clause commtinicating to the allotments the title of the lands 
 in respect of ivhich they arc allotted; and herein of a will dated 
 between the act and award, and general words devising the right 
 of common. 
 
 This clause is worded in different acts with different degrees of 
 intensity. In the earlier acts it is merely stated that the lands allotted 
 shall be held to the same uses as the lands in lieu of which the allot- 
 ments are made. In some acts it is omitted altogether; and as there 
 is no provision of a similar import in the general act, very consider- 
 able difficulty must ensue from that omission. Cases so circumstanced 
 will probably receive a favourable consideration in a court, and the 
 allotments may perhaps be treated as a new acquisition unincumbered 
 with any previous title but that which is derived through the act 
 itself, and the omnipotent power of parliament. The right to the 
 allotment may be estimated and determined by the right to the here- 
 ditament in respect of which the allotment is made ; not so as 
 to communicate the prior title of the hereditament to the allotment, 
 but only to ascertain the person to whom the allotment ought to have 
 been regularly made. This, however, is mere conjecture, which 
 should not be indulged in. 
 
 The modern clause may perhaps be considered sufficiently ample. 
 " And be it further enacted, that the several allotments which shall 
 be made by virtue of this Act, and the premises so to be exchanged, 
 partitioned, and divided as aforesaid, shall, immediately after the 
 making of such allotments, partitions, and exchanges respectively, 
 go to, be, remain, and enure, and be held and enjoyed, and the 
 several persons to whom the same shall belong, shall from thence- 
 forth stand and be seised and possessed thereof respectively, to 
 such and the same uses, and for such and the same estates, and 
 subject to such and the same leases (except leases at rack rent of any 
 part or parts of the said common field lands so intended to be divi- 
 ded as aforesaid, which are hereinafter declared to be void), wills.
 
 LAW TRACTS. 4.5 
 
 entails, limitations, remainders, tenures, rent-chai'ges, quit-rents, 
 services, mortgages, charges, liens, judgments, and other incum- 
 brances as the several lands and grounds, in respect whereof such 
 allotments shall be made, or which shall be so divided, partitioned, 
 or exchanged in pursuance of this Act, now are, or should, or 
 would have been subject and liable to, have been charged with, or 
 affected by, in case this Act had not been made." 
 
 The interpretation of this clause with respect to a will made in the 
 interval between the act and the award, devising rights of common 
 which at the testator's death have been converted into allotments, 
 has been the subject of considerable discussion. In a case submitted 
 to Mr. Wilbraham, on the Hexham Inclosure Act, which passed in 
 1753, it was declared by the act that the allotments should be held 
 and enjoyed by the persons to whom the same were allotted, " in 
 the same manner and by the same tenure as the respective lands in 
 right of which the said allotments should be made." A person 
 having a copyhold close held of the manor of Hexham, to which 
 was appurtenant the right of grazing cattle in two large commons, 
 the subject of inclosure, by her will, dated January, 1755, devised 
 the said close with the appurtenances to certain persons therein 
 named. The award was dated in May of the same year, and allotted 
 to the testatrix certain lands in right of her copyhold close and 
 riohts of common in the moors and wastes of Hexham : the testatrix 
 died in 1756 without altering her will, and the question was, whether 
 the allotment passed to the devisee. 
 
 Mr. Wilbraham was of opinion, that as the testatrix was not 
 seised of the lands at the time she made her will, they did not pass 
 thereby ; for though she was seised of the common as appurtenant 
 to the lands when she made her will, and though the lands were 
 substituted in the place of the common, yet they could not pass as 
 appurtenant to the lands, since they were a corporeal inheritance, 
 and one corporeal inheritance could not be appurtenant to another. 
 But as the testatrix lived till after the lands were awarded to her, 
 and as these lands therefore were as a new acquisition to her, the 
 learned gentleman inclined to think that she could not devise them 
 by a will made before they were awarded to her. " Besides, as 
 it seemed to be copyhold, being by the act of parliament of the same 
 tenure that the common v.^as, which was appurtenant to copyhold, 
 these lands could not pass by the will, but descended upon the 
 [customary] heir at law." ^ 
 
 1 2 Ca. & Opin. 312. As lo the latter position, see the 2d .Section of this tract.
 
 41 h\\\ TRACTS. 
 
 On a question of the same kind arising under the Boston West 
 Act,-' Mr. Butler wrote as follows: "In many cases where several 
 instruments taken together operate as one assurance of lands, a 
 devise made in the interval between the execution of the first and 
 the completion of the last instrument, will be valid ; and on this 
 ground it is open to contend that the act and the award form but 
 one instrument, and that the latter relates back so far to the fonner 
 as to give validity to the intermediate devise. Mr. Wilbraham (to 
 whose opinion as above stated, the learned writer had probably 
 been referred,) does not take notice of this circumstance, but as he 
 was a consummate lawyer, and wrote his opinions with much delibe- 
 ration, it is not to be assumed that it escaped his attention. View- 
 ing the case in this light, the question seems to be, whether the 
 testator at the tune he made his will, had that inceptive seisin in the 
 allotment which the law allowed him to devise. It is admitted, that 
 a devise of a contingent remainder is valid.^ That, perhaps, is the 
 nearest approach of legal authority to the present case, but it differs 
 materially from it ;^ and I am. of opinion, on the ground I have sug- 
 gested, tliat the devise of the allotment cannot be supported ; and I 
 concur with Mr. Wilbraham in opinion, that as the allotments are 
 new acquisitions, they did not pass to the devisees, but descended 
 to the testator's heir at law." 1818. 
 
 The two essential requisites to a perfect devise are, that the party 
 be seised of the estate at the date of his will — and also at his 
 death. In most of the cases that have occurred, involving the doc- 
 trine 01 revocation, the testator has been well enough seised at the 
 date of his will, but some alteration in his circumstances, or some 
 dealing with the property has taken place between that period and 
 his decease, from which an intention to revoke the will has been 
 manifested. A bare mutation, however, of the quality of the estate, 
 without some actual change of ownership, or some evidence of an 
 
 2 Tliis Act contains a clause communiaating the title of the old inclosures to 
 the lands allotted, but that clause could not have been mentioned to Mt. Butler, 
 as is evident from the whole tenor of his opinion. 
 
 3 Alluding possibly to the cases of Selwin v. Selwin, 1 W. Black. 251. 2 Bun-. 
 1131. Roe V. Jones, 1 Hen. Black, 30. Feame, C. R. 537- 
 
 * A contingent remainder-man has an interest in the lands at the time of the 
 devise ; that interest is descendible, and is very distinguishable from a mere possi- 
 bility or hope of succession. Tlie vesting of the remainder, then, after the date of 
 the will, can scarcely be said to amount to a new acquisition, wliich the realiza- 
 tion of a bare expectancy would certainly be. This is a-^sumed to b« the difference 
 RlUided to in the taxi.
 
 LAAV TRACTS. ^^ 
 
 intention in the testator to revoke, has never been held alone suffi- 
 cient to repeal the devise. If the testator be disseised ^ after the 
 date of his will, and before his death re-enters, whereby he is remit- 
 ted to his former estate, the interest which he takes by remitter 
 cannot be viewed in the hght of a new acquisition, so as to prevent 
 its being predicated of him, that he had the same estate at his death 
 as he had at the date of his will. An alteration, however, has 
 taken place, but without the consent of the testator ; and conse- 
 quently, no intention in him to revoke can be inferred from this 
 circumstance, nor will a revocation ensue. In this instance, a change 
 takes place in the quality of the estate without any change in the 
 ownership. On the same principle, a will devising the equitable 
 interest is not revoked by a conveyance of the legal estate;^ but to 
 preserve the permanency of the will, the legal estate must be con- 
 veyed to exactly the same uses as previously existed in the equitable 
 interest ; for if after such conveyance, the testator be found in posses- 
 sion of an estate, the least modified in point of quantity or duration 
 of interest from that which he had antecedently, the latter essential 
 to a perfect devise will be wanting and the will be abrogated. ^ 
 So in reference to partition; it is now settled that mere partition, 
 whether by compulsion or agreement, will not alone amount to a 
 revocation of a will ; but the slightest addition, as a power of appoint- 
 ment prior to the limitation of the uses, will be sufficient to annul 
 the existing devise. ^ This is a stronger case, and less reconcileable 
 with principle, than either of the former ; for as to one moiety at 
 least, there does appear something very much hke a new acquisition, 
 particularly with reference to a partition of a tenancy in common. 
 
 5 Atty. Gen. v. Vigor, 8. Ves. 282. | « Williams v. Owens, 2 Ves. J\m. 595. 
 
 " If a tenant in tail, with remainder to himself in fee, makes his will and levies 
 a fine, the effect will be to bar the entail and accelerate the reversion into an 
 estate in possession. Consequently, the general position that a fine operates as 
 an absolute revocation (Vawser v. Jefiiery, 2 Swan, 273.) must receive this quali- 
 fication, that it will not so operate when levied by a tenant in tail, but only when 
 levied by a tenant in fee. The tenant in tail is seised of the same reversionary 
 estate at the date of his will as he is at his death, the only alteration eiFected in 
 that estate by the fine, is to convert it into an estate in possession. But the 
 operation of a recovery imder similar circumstances is obviously different, as the 
 effsct of that instrument is to bar the reversion, and enlarge the entail into a 
 newly acquired fee, which must consequently annul the will. 3 Pr. Wms. 165. 
 Goodtitle v. Otway, 1 Bos. & Pul. 612. 
 
 8 Luther v. Kirby, 8Vin. Abr. 148. 3Pr.Wm?. 169. Knollys v. Alcock, / Ves. 
 564. Sib. 281.
 
 ■IC) LAW TRACTS. 
 
 The point, however, as above stated, has lately been acknowledged 
 by the Lord Chancellor. 
 
 The case of an exchange approaches nearer, in one sense, to the 
 subject in review than any of the preceding. In a late case it was 
 resolved that a devise was revoked by an exchange, though the land 
 after the death of the devisor was restored to his heir, under an 
 arrangement, in consequence of a defect discovered in the title of the 
 other party to the exchange.'-* The difference between a revocation 
 arising from a disseisin and an exchange is, that in the case of disseisin 
 the revocation is not the act of the party ; it is against his will. If 
 he be disseised before the execution of his will, nothing will pass, aS 
 a right of entry is not a subject of seisin, and cannot therefore be 
 devised. But if he has the land at the date of his will, and is dis- 
 seised afterwards, he will, if he be remitted to his old title by entry, 
 be seised of the same estate at his death as he had at the date of 
 his will, and the disseisin not being an act of his own, the devise 
 will remain unrepealed. An exchange, however, is an act of his 
 own volition, and though he should afterwards take the same estate 
 back again by reason of some defect in the title, the devise will be 
 considered entirely cancelled by the manifest intention at the time of 
 exchange to alter the use in the land ; and the non-accomplishment of 
 that intention will not resuscitate the devise, as is evident from a 
 void bargain and sale being held alone sufficient to destroy the will.^* 
 To apply these principles to the question under consideration, 
 it is observable, that in the case of an exchange, the testator mani- 
 fests a decided intention to alter the ownership of the land ; and as 
 to the land taken in exchange, the will cannot operate vicariously 
 to pass an estate at A by the description of an estate at B, particu- 
 larly when the testator bt/ an act of Ms own has substituted the 
 one estate for the other. If he had sold the estate comprised in his 
 will, and purchased another estate, it is clear the will would not 
 have operated on the newly acquired lands. The case of an 
 exchange must be viewed in the same light. That the allotment 
 is in itself a new acquisition, will not, it is conceived, be denied. 
 If the description in the will refers peculiarly to rights of common, 
 it cannot be contended that several acres of land are included in that 
 description. The cases, it will be perceived, have uniformly esta- 
 blished the principle that the testator must be seised of the same 
 estate at his death as he had at the date of his will ; and the object 
 
 Attorney General v. Vigor, 8 Ves. 282. , . 
 
 10 1 RoU. Abr. 615. 3 Atk. 73. 803. 8 Ses. 282.
 
 LAW TRACTS, 47 
 
 has been to ascertain whether the estate of which the testator dies 
 seised, is really and substantially the same as that which he had 
 when he sat down to make a testamentary disposition of his property. 
 But in all the cases where there has been an actual change in the 
 subject of devise, as distinguished from an alteration in the qua- 
 lity of estate in that subject, a revocation of the will has been pro- 
 nounced inevitable, for want of compliance Mdth the two grand requi- 
 sites above alluded to ; and it will also be observed, that the same 
 consequence has ensued, whether the change in the subject of devise 
 has been effected with or without the consent of the testator. If he 
 be disseised and does not revest the seisin by entry before his death, — 
 at the date of his will he has the seisin, at his death a right of entry ; 
 and this against his consent : but not having the same estate at both 
 the before-mentioned periods, the will is annulled. This shows that 
 the intention is not referred to in cases where these preliminaries are 
 wanting. The subject in dispute presents the converse of the case 
 in disseisin. At the date of the will the testator has a right of 
 common, at his death he has the seisin of land, the one arising from 
 and substituted for the other ; and this without his consent, by vir- 
 tue of an act of parliament : certainly without his consent, for he 
 has no option to reject the allotment and preserve his right of 
 common. A similar consequence should then follow — the will should 
 be, and without a doubt will be determined to be inoperative. 
 
 From these premises it is concluded, that on the ground of sub- 
 stitution merely, an allotment will not pass by a will dated between 
 the act and the award, without an express provision in the act to 
 the contrary. The only other question is, whether the award is to 
 be considered as relating back to the date of the act, so that the 
 party may be said to be seised of the allotment at the date of his 
 will, as well as at the time of his death. It is evident that this con- 
 struction, even if it can be supported, will not apply to a will 
 which affects to dispose of rights of common only and not the land 
 itself. But supposing the will to contain general words applicable 
 to property of a corporeal nature, it is not clearly settled that the 
 doctrine of relation will so far vest the estate in the recipient, as to 
 make him absolute owner in the interval between the date and per- 
 fection of the instrument conveying the estate. 
 
 In the instance of a will made between the date of a bargain and 
 sale conveying the property to the testator and the enrohnent of 
 that bargain and sale, the question arises, whether the testator can 
 be said to be seised of the estate at the date of his will, if he dies 
 before enrolment, supposing the enrolment to take place within due
 
 1.S LAW 1 « \fJS. 
 
 time afterwards. Jones, J. conceived that in ret ver'Uaie, the bar- 
 gainor is seised until the enrobnent ; for until the words of the sta- 
 tute" he complied with, viz. " that the deed be enrolled," nothing pas- 
 ses to the l)argainee ; and he cited the case of Bellingham v. ALsop^"^ 
 where it was held, that if a bargainee before enrolment, bargains 
 and sells the land to another person before the enrolment of the first 
 bargain and sale, and then both instruments are enrolled consecu- 
 tively, the second bargain and sale will be void, because there is 
 nothing in the secondary bargainor at the time of the bargain and 
 sale ; and of that opinion was Hyde, C. J. ; but Croke, J. conceived 
 that if the enrobnent be made within the prescribed time, the 
 bargainee will be in ah initio ; for the statute of uses is to be con- 
 sidered as executing the possession to the use at the date of the 
 deed, and therefore the bargainee will be in as from that period.^'' 
 On the other hand it is observable that a fourth resolution in Joham 
 V. Morrice"^ was, that where a bargainee after the execution of the 
 indenture of bargain and sale, but before enrolment, lets the 
 land for years, and the indenture is enrolled within the six months, 
 yet the lease is void, and the relation of that enrolment shall not 
 make it good. 
 
 However, it is considered clear from other adjudications, and 
 particularly from Dimock's case,''' where the heir of the bargainee 
 was adjudged entitled to lands conveyed to his ancestor by bargain 
 and sale enrolled after the ancestor's death ; that the devisee w ill 
 be held entitled to lands under a will made in the interval between 
 the date of the bargain and sale and its enrolment ; for that the 
 estate vests presently by the statute of uses, and not by the statute 
 of enrolments, except where the bargain and sale is made by com- 
 missioners of bankrupt, as in that instance nothing vests till enrol- 
 ment."' — From this digression it should appear, that the devise takes 
 effect in the case lastly alluded to, not under the doctrine of rela- 
 tion, but by reason of the statute of uses vesting the estate in the 
 bargainee as from the date of the deed, whereby the testator is in 
 fact seised of the same estate at the date of his will as he is at his 
 death. 
 
 If in 1820, lands are conveyed to A to such uses as B shall 
 appoint, and B, in 1825, appoints to C in fee, the appointee in com- 
 mon language may be said to be in as from the original conveyance, 
 
 11 27 Hen. 8. c. l(i. i-» Cro. Car. 110. 
 
 la Cro. Jac. 52. '^ Hob. 1.36. 
 
 13 Flower »•. Bald^vin, Cro. Car. 218. '« Bennett r. Gandy, Carth. 178.
 
 LAW TRACTS. 40 
 
 but it cannot be contended that C's will, dated between the years 
 1820 and 1825, containing a general devise of all real estate, will 
 attach-on the property vested in him by an execution of the power. 
 It is submitted that the act of parliament and award are to be con- 
 strued in reference to the subject in review, as operating in a similar 
 manner to the deed creating, and deed executing, a power of appoint- 
 ment. The act confers the power, — the award executes it; and 
 though the award is not to be treated as a conveyance, yet it has 
 been lately decided that the legal estate of freehold in the allotment, 
 does not pass until after the execution and proclamation of the 
 award.''' These considerations afford strong grounds in support of 
 Mr. Wilbraham's opinion. 
 
 If a will be made after the execution of an award, and the words 
 of devise do not pointedly refer to the allotment, but only to a tene- 
 ment with the appurtenances, it will remain to be proved, whether 
 the allotment was so attached to the tenement in the mind of the 
 testator, as to form an appurtenant to it, in the same manner as a 
 garden, orchard, or small close of land may in an enlarged sense of 
 the word ' appurtenances,' be construed to be included in a will by that 
 word, although it be a corporeal hereditament. The general rule in 
 these cases is, that land usually occupied with a house, will not pass 
 under a devise "of a messuage with the appurtenances," unless it 
 clearly appears that the testator meant to extend the word ' appur- 
 tenances' beyond its technical sense. '^ 
 
 If there be a clause in the Inclosure Act subjecting the allotments 
 to the same wills, &c. as exist of the lands in lieu of which they are 
 allotted; and the commissioners, in further aggravation of the evil 
 animadverted on in the former part of this Tract, make one entire 
 allotment to the testator in lieu of two distinct tenements which he 
 has devised to two separate persons ; a point of some nicety arises 
 to ascertain what estates and interests the devisees take in the allot- 
 ments. Do they take as joint tenants, or as tenants in common? Have 
 they equal or unequal shares? The parties should agree upon a 
 division, execute reciprocal conveyances, and covenant to produce 
 each other's title. This expense is entailed upon them by the ineffi- 
 cient execution of the powers of the act. 
 
 In the Snelston Inclosure Act, Derby,^-* is the following very proper 
 provision. • 
 *'Sec. 37. And be it further enacted, that in case the proprietor or pro- 
 
 17 Farrer v. Billing, 2 Barn. & Aid. 271 ; 5 ib. 47- et inf. 
 
 18 Buck V. Nurton, 1 Bos. & PiU. 53. '9 5 Geo. 4. c. 1. Pr. Acts, 1824,
 
 50 LAW TRACTS. 
 
 prietors of any lands or other liereditainents,bythisor the said recited 
 acts, authorized to be allotted or exchanged, shall hold their respec- 
 tive messuages, lands, or hereditaments for different estates, or subject 
 to different trusts, charges, or incumbrances, the said commissioners, 
 on being requested in writing so to do, shall ascertain and distinguish 
 the messuages, lands, or hereditaments so held ; and shall also set 
 out and distinguish the different allotments, or other hereditaments 
 to be accepted and taken as an equivalent in respect of each of them 
 so circumstanced, and the said commissioners shall, and they are 
 hereby authorized and empowered to set forth and declare in and by 
 their award, in right of what messuage, land, or hereditaments in 
 particular, such allotments shall have been respectively made, and 
 therein also separately describe and ascertain the situation and 
 boundaries of every such allotment. 
 
 The sixth section of the general act mentioned infra sec. 9, evidently 
 shows an intention in the legislature, that the allotments should be 
 apportioned according to the different holdings, titles, and tenures 
 of the lands in respect of which they are allotted. 
 
 SECTION IV. 
 
 Of the deductioji of title to lands exchanged under inclosure acts. 
 
 By the 15th section of the General Inclosure Act, the commissioners 
 are authorized to set out, allot, and award any messuages, buildings, 
 lands, tenements, hereditaments, new allotments, or old inclosures, 
 within the parish or manors wherein the inclosure is proceeding, in 
 lieu of any other messuages, buildings, lands, tenements, heredita- 
 ments, new allotments, or old inclosures within the same parish or 
 manors, so that such exchanges be made with the consent of the 
 owners, or if any ecclesiastical benefice be affected, with the consent 
 of the bishop and patron. Hence, to authenticate an exchange under 
 inclosure acts, it is proper to call for evidence that the due and pro- 
 per persons consented thereto, for without such consent, the exchange 
 will not be good within the act, though nominally made under it. 
 
 There is not any clause in flie General Inclosure A^t, communi- 
 cating a reciprocity of title to the lands given and taken in exchange ; 
 consequently, in the absence of any such provision in the local act, 
 the titles tjo both estates should, in strictness, be examined in con- 
 formity with the general practice, though that practice is not uni-
 
 LAW TRACTS. 51 
 
 formly acceded to. ' In most local acts, however, a clause is inserted 
 providing that the allotted and exchanged lands shall be affected by 
 the same uses, wills, and settlements as the lands in lieu, or in respect of 
 which they are allotted or exchanged ; in which case it is the prevailing- 
 practice to consider lands received under an exchange made in pur- 
 suance of an inclosure act, as held under the same title as the lands 
 given in exchange. In the language of a learned writer,- "there is a 
 change of land, but not a change of title." 
 
 It has been contended that the act itself does not make or con- 
 stitute a title, or give any right to any party thereto, that he had not 
 before ; but, on the contrary, by a general saving, saves to all persons, 
 except those to whom allotments are made, their former rights ; that 
 exchanges, under the power in this act, are no more than exchanges 
 under powers in any other instrument ; that the act merely gives a 
 power to be executed as any other power, leaving the parties under 
 it to supply and prove their titles ; and that it is a clear point in prac- 
 tice, that a purchaser under an exchange deed is entitled to examine 
 both titles. With this impression, an eminent Conveyancer, whose 
 advice to his grandson is worthy the adoption of every student, thought 
 that a subsequent purchaser of lands exchanged under an inclosure 
 act, could and should require to be produced, the title of the party 
 from whom the land was taken in exchange. It was, however, the 
 opinion of another eminent gentleman, (and that opinion is certainly 
 conformable to the uniform practice of the majority of convey- 
 ancers,) that the title of each party is communicated to the lands taken 
 in exchange exactly in the same manner as allotments of common 
 field lands are, under acts of this description, held subject to the title 
 of the person to whom the allotment is made ; in short, that there is 
 not any conveyance or degree of title effected by the act; and, con- 
 sequently, that the exchange is not to be treated as amesnable to the 
 established rules. 
 
 At common law exchanges can be made within certain limits only, 
 as fee simple for simple ; estate for life for estate for life ; estate tail 
 for estate tail ; freeholds for freeholds ; legal estate for legal ; lease- 
 holds for years, for leaseholds of the same number of years; copyholds 
 for copyholds of the same manor. But exchanges under inclosure 
 acts are generally considered as not bound by these rules. Thus, 
 lands of freehold tenure may be exchanged for lands of copyhold 
 tenure within the same parish or manor ; a tenant for life may ex- 
 change with a tenant in fee, provided the remainder-man be not 
 
 1 Byth. Noy. Max. p. 156. 2 \ Pres. Abs. 162.
 
 5ii LAW TRACTS. 
 
 tliereby injured;'' an equitable tenant witli a tenant of the legal 
 estate ; anil a co]>yliol(l tenant witli his own lord. l>iit these allotments 
 and alterations oi'tUe jjos.session of the lands within a parish or manor 
 can scarcely be called exchanges, they are mere substitutions of one 
 piece of land for another, without affecting any exchange or al- 
 teration of title or interest. The lands taken in exchange by 
 each person will as to him be of the same tenure as the lands 
 given by him in exchange, and be held by the same services, &c. 
 
 The commissioners, however, are not bound to make all the ex- 
 changes the parties desire, if, in a conscientious discharge of their 
 tluty, they consider the exchange will be injurious to third persons. 
 Under the Flockwood Inclosure Act, one person who had an estate 
 in fee, was desirous of exchanging with another person who had an 
 estate for life. To this exchange, the remainder-man objected, and 
 the commissioners, on his representati<m as it is assumed, refused to 
 make the exchange. Both parties then api)lied to the Court of 
 King's Bench for a mandamus to compel the commissioners to effect 
 the exchange.^ The affidavit of the commissioners stated, that they 
 considered themselves as holding a judicial office; that the exchange 
 was most unfair and prejudicial to the remainder-man ; that these 
 exchanges were matter of favour where the estates are of different 
 degrees ; and that they could not conscientiously make the exchange 
 required. It was then contended that the words " shall and may," 
 in the exchange clause of the act in question, were imperative : but 
 the court held, that those words were imperative only when they 
 authorized something for the public good, as a churchwarden to 
 make a rate, &c., but not so in a case like this. The word " ex- 
 change" imported an equality of interest, and the court would not 
 grant a mandamus where a conscientious duty was left to the commis- 
 sioners and they declared they could not perform the act required. 
 It would be subjecting the consciences of the commissioners to a ma7t- 
 damiis. How did it appear that this statute was ever intended to 
 allow a commissioner to effect such an exchange as this ? It would 
 be most grievous to the remainder-man if they could. The rule was 
 consequently discharged.^ 
 
 In regard to copyholds, the freehold lands taken in exchange be- 
 come demisable by copy of court roll, and the copyholds given in 
 
 3 Rex V. Flockwood Commissioners. 2 Chit. Rep. 251 et infra. 
 
 4 Such nuindamus will, it seems, be granted to the commissioners on proper cause, 
 as to inquire if there is any modus, &c. Anon. 2 Chit- Rep. 251. 
 
 5 Re.\ V. Flockwood Commissioners, 2 Chit. Rep. 252.
 
 t,AW TRACTS. 53 
 
 exchange are converted into freehold. The operation of the act is 
 to communicate the copyhold tenure to certain lands in lieu of other 
 lands liberated from that tenure. But it should be observed that no 
 decision has yet warranted this position as unimpeachable law ; and 
 therefore it is a very proper precaution, though not much regarded 
 in practice, to require inspection of both titles, when such inspection 
 can be easily obtained. And it should be further noticed, that though 
 the exchange clause in the General Inlosure Act will, in all probability, 
 be judicially interpreted to warrant exchanges of freehold and copy- 
 hold lands ; yet considerable doubt hangs about the certainty of that 
 interpretation, as is evident by the insertion in most local acts of a 
 clause expressly warranting such exchanges. These clauses require 
 great attention, as they sometimes fall short of what they are evidently 
 intended to express. 
 
 Another rule at common law is, that an exchange cannot be made 
 between more than two parties ; but several persons may compose 
 each party. Thus, A cannot grant lands to B in exchange for lands 
 which he is to receive from C ; but tenant for hfe, tenant in tail, and 
 reversioner on the one part, may exchange with a trustee of the legal 
 estate, and a feme covert and tenant in fee of the equitable interest, on 
 the other part." But this rule of law cannot, on the before-mentioned 
 grounds, strictly apply to exchanges under inclosure acts. The founda- 
 tion of an exchange at common law, is a mutuality of interest, and an 
 implied warranty, which engenders a right of re-entry in case of evic- 
 tion. Neither of these principles are applicable to exchanges under 
 inclosure acts, where the object is convenience of occupation and 
 contiguity of possession merely. Hence it will probably be decided, 
 whenever the question shall call for judicial determination, that the 
 commissioners may, by their award, make an exchange as between 
 three persons for the convenience of each ; but it would certainly be 
 more formal, and free from all risk of captious objection, if the com- 
 missioners could be prevailed on to effect the arrangement without 
 an intermediate allotment to the third party. 
 
 6 Co. Litt. 50 b. 51 a. 2 Shep. Touc. 297, 298. Pres. Ed. Bustard v. Coulter, 
 Cro. Eliz. 902. Eton Provost v. Winton Bp. 3 Wils. 496.
 
 LAW TRACTS. 
 
 SECTION V. 
 
 Of allotments in lieu of tithes. 
 
 The General Inclosure Act contains no directions on this head. It 
 merely enacts that the incumbent may, with the consent of the bisliop 
 and patron, demise any allotment to him by virtue of any future act, 
 for a term of twenty-one years, upon certain conditions.' It is 
 necessary to ascertain whether and how far waste and uncultivated 
 lands are exempt from tithes, before we pass on to the consideration 
 of this division of the tract. 
 
 By a statute in the reign of Edward 6th,- it is enacted, that all 
 barren heath or waste ground which thereafter shall be improved and 
 converted into arable ground or meadow, but which, before the 
 passing of that act, had not paid any tithes by reason of such bar- 
 renness, shall, after the term of seven years next after such improve- 
 ment, pay tithe for corn and grain growing on the same. It has been 
 the subject of some dispute what is the exact meaning of the words 
 " barren heath or waste ground," in this act. Do they refer to lands 
 which are suapte natiira barren, or to such as have become so in 
 consequence of the negligence or ill husbandry of the occupiers ? 
 Do they include the waste lands which of late years we have been 
 accustomed to see productive of such plentiful harvests, or only such 
 as will not yield a profit for the first seven years without great ex- 
 pense and labour ? Is the test, a natural inaptitude in the land for 
 tillage, or is it the expense the land will require to bring it into a fit 
 state of cultivation 1 The courts have fixed on the former criterion for 
 the decision of this question. For example, Howburn Bog in Durham 
 was, at the time of inclosure, so spongy, hollow, and wet, that no cattle 
 could go on it without being lost, and when it was drained, ploughed, 
 and sown, it could not be harrowed by horses but by men only ; the 
 crops turned out mean and bad. Eyre, Baron, sitting for the Chan- 
 cellor, dismissed the bill for tithes, with costs, on the ground of the 
 natural unfitness of the land for agricultural purposes ; for what, 
 asked the learned Baron, could be barren land, if that were not so, 
 where no cattle could tread or no plough could go ?^ 
 
 1 41 Geo. 3. c. 109, s. 38, amended 1 & 2 Geo. 4. c. 23, s. 4. 
 2 2 & 3 Edw. 6. c. 13, s 5. ^ Byron v. Lamb, Gwill. Ti. Ca. 1595.
 
 LAW TRACTS. 66 
 
 Lord Hardwicke has said, that if the knd is in its own nature so 
 barren, as not to be fit for agriculture after it is improved, it shall not 
 pay tithe ; but if in its own nature it is fit for tillage, but by reason 
 of wood or other accidental circumstances, it was not turned into 
 tillage before, upon the taking away of that accidental circumstance, 
 it shall pay tithes presently on being turned into tillage.'* To this 
 position the Court of King's Bench in a late case agreed ;5 but Lord 
 Hardwicke went on further to state, that "if an additional expense 
 is necessary to make the land produce the first crop, yielding a pro- 
 fit, seven years shall be allowed." To this position Lord Ellen- 
 borough objected, for tliat in all the cases in which the statute had 
 been held to apply, some great and extraordinary expense had been 
 incurred. The proper inquiry, said Lord Ellenborough, was whe- 
 ther the land be of such a nature as to require extraordinary expense, 
 either in manure or labour, to bring the land into a proper state of 
 cultivation; but for the position, "that if any ac?c?2Viow«/ expense is 
 necessary to make it produce a first crop yielding a profit ^ seven 
 years shall be allowed," there was not any dictum or decision to be 
 found in any of the books.^ In a subsequent stage of the same cause, 
 the court held that land, which is of a good natural quality, must 
 pay tithe immediately, although the expense attending the breaking 
 it up and liming it, exceeds the return made to the farmer in the 
 several first years of cultivation.'' Hence it should follow that an 
 allotment can seldom be pleaded as exempt from tithes ; for the 
 land would scarcely be enclosed if it were unproductive ; and at com- 
 mon law, even barren land bearing any fruit, is titheable. 
 
 Agistment tithe is a sum equal in value to the tenth of the grass or 
 herbage consumed by cattle not kept for the plough or the pail 
 within the same parish, or rather, not paying any other tithe to 
 the same parson.^ Hence a person taking in cattle to tack, is liable 
 to pay an agistment tithe for them, even though the cattle be- 
 long to a person paying tithe for them within the same parish ; for 
 agistment tithe arises, not in respect of the ownership of the cattle, 
 but in respect of the occupation of the land, and may accrue due for 
 the same place several times in the same year.^ Common appurte- 
 nant or appendant is considered, in law, to be part of the farm or 
 land to which it belongs, even though it confer a right to depasture 
 
 4 Stockwell V. Terry, 1 Ves. 1 15. ^ Warwick v. Collins, 2 Mau. & Selw. 349. 
 6 2 Mau. & Selw. 349. 7 Warwick v. Collins, 5 Mau. & Selw. 166. 
 
 8 Byam v. Booth, 2 Price 231. EUis v. Saul, 1 Anstr. 332. 3 ib. 761, Gwill. 
 1445. 2 Inst. 651. Bunt. 446. 
 
 9 Bunb. 3. 3 Burn, Ecc. Law, 448.
 
 56 LAW TRACTS. 
 
 lands ill anotlier parisli ; '" now if tlie tenant of the land were lithe- 
 able for the common, the i^arson would be invested with an unreason- 
 able profit; for the cattle which depasture commons yield an ijicrease 
 to the parson from the produce of their wool, milk, lambs, &c., as of 
 common right, and if they were to be tithed again for the value of 
 their keep on the common, the parson would receive a double tithe, 
 Avhich the law will not tolerate. Agistment tithe, therefore, cannot 
 be claimed for common appendant or appurtenant. But common, 
 in gross, is a distinct inheritance, and an agistment tithe will accrue 
 in the exercise of it, notwithstanding it belongs to a person paying 
 rectorial tithes for the same cattle within the same parish; for the 
 right is annexed to the person and not to the land, and the tithe 
 arises in respect of the occupation, which cannot be varied by the 
 circumstance of the commonable cattle paying a rectorial tithe to the 
 same parson.'' 
 
 By the inclosure act, the right of common is extinguished, and 
 the allotment becomes a separate inheritance, neither appendant 
 nor appurtenant to the farm, for it is now a corporeal heredita- 
 ment existing per sc, and as such liable to a rectorial tithe, unless an 
 exemption can be shown under the before-mentioned statute, or by 
 some other means.'' The allotment however so far participates of 
 tlie liabihties and privileges of the right in lieu of which it is made, 
 that if an estate having common appurtenant, be exempt from all 
 tithes, the allotment in respect of the common will also be entirely 
 discharged of that incumbrance ; for as no tithe was payable before the 
 inclosure, in respect of cattle feeding on the common land, no tithe 
 should l^c payable in respect of the land allotted to the owner of the 
 estate in lieu of that right of common.'^ But it is otherwise, with 
 reference to common in gross, as the only tithe that species of com- 
 mon can produce, is an agistment tithe ; and if the common were 
 exempt from this tithe, the allotment would be still liable to rectorial 
 tithe by common right, from which nothing could exempt it, as that 
 tithe never previously existed, and consequently could not be the 
 subject of exemption. Such, at least, appears to be a fair inference 
 
 10 Lambert v. Cumming, Bunb. 138. Ellis v. Fermor, Gwill. 1022. 
 
 ' ' These positions flow more from general lu-inciples than from direct authorities, 
 but they are sujjported by Gwill. 1027- Hatfield v. Rowlins, Gwill. 1030. Toll. 
 Ti. 38. 89. 
 
 »2 Moncaster v. Watson, 3 Burr. 1375. 1 W. Black. 402. 
 
 13 Steele r.iAlanns, 5 Barn. & Aid. 22. Stockwell u. Terry, 4 Burr. 1377. 2 Bum. 
 Ecc. Law, 388. 1 Ves. 115. Bunb. 1-38. Gwydir v. Foaks, 7 T. R. f541.
 
 LAW TRACTS. 57 
 
 from the preceding observations, though the books do not go to the 
 full extent of the position.'^ 
 
 The exemption, however, must be of all tithes, or at least of such 
 tithes as the commons could be supposed to produce, otherwise the 
 allotment in lieu of the common will not be exempt. In a case 
 before Lord Mansfield, the owner of a farm, to which a right of 
 common was appurtenant, claimed to be exempt from tithes of corn, 
 grain, and hay, in consideration of keeping in repair the north end 
 of the parish church. An inclosure of the commonable lands in the 
 parish took place, and a question arose, whether the allotment in 
 respect of this farm was exempt from tithe of corn, grain, and hay. 
 It was resolved by the Court of King's Bench that it was not exempt, 
 on the ground that the common in lieu of which the allotment was 
 made, could not, whilst it was common, have produced either corn, 
 grain, or hay, therefore it could never have been exempt from tithes 
 in respect of those articles. The only tithe the common was capable 
 of bearing, was tithe of wool, Iambs, milk, &c., from which the com- 
 mon in question was not exempt. The allotment was therefore 
 adjudged liable to tithe, and tjie postea delivered to the plaintiff, 
 the impropriator.''^ Hence, the allotment will not be free from tithe, 
 unless the exemption be of mixt as distinguished from predial tithes. 
 
 In a case which occurred in practice, a rector let the tithes of his 
 parish to A B. In the parish, were certain open and waste lands, 
 wherein the several parishioners paying tithes, had rights of common. 
 Those commons being inclosed by act of parliament, a question 
 arose whether the lessee was entitled to the rectorial tithes in respect 
 of the allotments. A slight attention to the foregoing distinction 
 will show at once, that the lessee was without title. The tithe of 
 commons comprised in his lease was in the nature of an agistment 
 tithe ; the tithe arising from the allotments was a rectorial tithe not 
 in existence when the lease was made, and could not, therefore, be 
 the subject of it ; under this impression it was advised that the tithes 
 of the allotments were payable to the rector and not to his lessee. 
 
 Another question arose under these circumstances : a parish was 
 divided into two hamlets, A and B. The rector let the tithes over 
 the hamlet A, to a person having lands within that district. The 
 lessee, under an inclosure act, exchanged his lands in A for other 
 lands in B. The question was whether, under the substitution 
 
 ^•* Some such doctrine seems hinted at in Mireh. Ti. 50, 2d Ed. citing Rex *, 
 Fox, Gwill. 1027, bat the reasons are not detailed. 
 •5 Moncaster v. Watson, 3 Burr. 1379. 
 
 F
 
 58 i,A\V TKACTS, 
 
 clause in tlie locnl act, the lessee was not cntitleil to an exemption 
 from rectorial tithe, in respect of the lands in B, during the con- 
 tinuance of his lease. It was considered that the inclosure had not 
 made any alteration in the tithes ; but that the lands received in 
 exchange were titheable in kind to the rector notwithstanding the 
 lease, whilst the lands given in exchange were subject to the pay- 
 ment of tithes to the cxchangor as lessee. 
 
 Under modem inclosures, the tithes of the whole parish are usually 
 provided for by allotment. The commissioners are empowered to 
 'set out an allotment in resj)ect of the glebe lands of the incumbent, 
 and any rights of common which he may enjoy; and then not uncom- 
 monly to allot to the tithe owners, a certain proportion of land to be 
 estimated according to a given ratio, in lieu of all the tithes within 
 the parish, which allotment they are directed to divide and apportion 
 between the i)npro})riator and rector. The ratio is usually one-fifth 
 for all old inclosed arable lands, one-eighth for all old inclosed pasture 
 lands, and one-ninth for all open and common field or waste lands 
 "within the parish subject to the payment of tithes. The advantage 
 tlien is, that all lands in the parish are tithe-free; and this advantage 
 the several proprietors should take into consideration before they 
 com]>lain (as they not unfrequently do) of the smallness of their allot- 
 njents, in coinparison with the tract of waste land divided. 
 
 The Atterby Inclosure Act, 9 Geo. 3. c. 51, (1769,) directed that 
 the commissioners should allot to the rector and his successors, in lieu 
 of the tithes within the townships of A, B, and C, so much of the 
 lands to be inclosed as should (quantity, quality, and situation con- 
 sidered,) contain, or be equal in value to two-fifteenth parts of the 
 titheable places in the said townships; and that after the enrolment 
 of the award containing such allotment, all tithes within the said 
 townships should cease. The commissioners made an allotment of 
 8;3(i acres to the rector, in lieu of all tithes within the townships of 
 A and B, which was more than two-fifteenths of the titheable lands 
 w ithin those districts, but less than that quantity by 140 acres, taking 
 into consideration the township of C. The award was duly enrolled; 
 and nearly fifty years after, a succeeding rector claimed rectorial tithes 
 in respect of the lands within the township of C, on the ground that 
 the allotment having been expressly made in lieu of tithes within the 
 townships of A and B only, it was no bar to the rector's claim for 
 tithes in the township of C. The short question made by his counsel 
 was v/hether, when the commissioners made an allotment in lieu of 
 the tithes of A and B, but made no allotment in lieu of the tithes 
 of C, the court would consider their award as a bar to the tithes
 
 LAW TllACTS. 59. 
 
 of C? It was coiitendetl that the court could not so c<jn.sidcr it, for 
 the comnnssioners had in cflcct declared that the idlotnient should 
 not be taken as a compensation for the tithes of C, since they liad 
 expressly declared it to be a compensation for the tithes of A aiul B 
 only. No such award, therefore existed, as was required by the act ; 
 and the existence of such an award was a condition precedent to 
 the operation of the act in extinguishment of the right to tithes. 
 
 Sir T, Plumer, M. R. (for whose remarks on the interpretation of 
 inclosure acts in general, this case is here introduced) observed, that 
 the circumstances presented three distinct questions. 1st, Whether it 
 is competent to the rector, fifty years after the inclosure, to inquire into 
 the propriety of the allotments. 2nd, Whether he has proved that the 
 award is not such as the act proposed, that is, that the allotments are 
 not such as the rector was entitled to receive. 3d, Whether, if he esta- 
 blishes both those propositions, the consequence is, that the award is 
 invalid. " It is not necessary," continued his Honour, " to examine 
 tli€ first question. Admitting for the present the competency of the 
 rector to inquire into tlie propriety of the allotments, has he shown 
 sufficient to impeach the judgment of the commissioners ? It appe^irs 
 that an allotment of about 300 acres was made to the then rector, — 
 was accepted by him, — and has been enjoyed by his successors ever 
 since ; and that the quantity of that allotment vvas the subject of 
 inquiry and adjudication by the commissioners. A court reviewing 
 the judgment of any legitimate tribunal, is bound to presume omnia 
 lite acta, much more when that review is undertaken after the lapse 
 of half a century. It is sufficient for those who rely on the judgment 
 to produce ic ; it cannot be impeached without clear and indis- 
 putable evidence of error. The commissioners ai'e authorized to 
 adjudicate finally on the subject of quantity, quality, liability to 
 tithe, &;c. ; those points they must have considered, had they duly 
 exercised their power ; and I am bound to suppose them so to have 
 done, and to give them credit for a just adjudication. Nor can it be 
 supposed, that the then rector failed to submit to their consideration 
 wjiatever was required for enabling them to assign to him a proper 
 allotment. 
 
 " But it is said that the impropriety of the allotment is in proof; 
 that by computation it is deficient in quantity to the extent of 
 about 140 acres ; that in the award no reference is made to the 
 tithes of C, and therefore if any lands there were titheable, no com- 
 pensation having been given for them, that the rector has n(jt received 
 the indemnity provided by the act. I have anxiously considered, 
 whether it is possible now to determine that the rector had or had
 
 60 LAW TRACTS. 
 
 not a due allotment. In description, on the face of the award, there 
 is no reference to the tithes of C ; it cannot, however, be said, that 
 no regard was had to that township, for an allotment is expressly 
 made of lands inclosed there in respect of the Carr-side pasture 
 [being glebe lands for which a separate allotment was directed]. 
 But in quantity there seems a deficiency. The allotment to the 
 rector was more than two-fifteenths, omitting C, but less than two- 
 fifteenths, including that township. If quantity is the criterion, 
 there is certainly error ; but how does it appear that the deficiency 
 in quantity was not compensated by superiority in value ? Or, how 
 can it be known what evidence was produced to show which of the 
 lands included were titheable, and which not ? On that subject we 
 can only conjecture ; but this we know, that the allotment was made, — 
 was accepted by the rector, — and has been constantly acquiesced in 
 since, without dispute, till the institution of the present suit. On 
 this question then, I am obliged to say, that the rector has not, by 
 clear and satisfactory evidence, impeached the judgment of the com- 
 missioners and shown error in the award. 
 
 " Had it depended on that point, a question might arise what 
 course should be pursvied ; but I have never entertained a doubt, 
 that under this claim there is no necessity for adverting to that part 
 of the case, being clearly of opinion, that if an error were proved in 
 the omission of a proper allotmerd, yet, on the construction of the act, 
 the hur which it creates is insuperable ^^ It is an independent sub- 
 stantive bar to the claim of tithes in kind for ever ; not conditional, 
 but positive. The legislature has declared, that after a certain event 
 tithes shall cease ; what is that event ? The enrolment of the award. 
 From that time the tithes are extinguished. The proposition of the 
 rector is, that the bar does not arise if he can show error in the 
 award. That argument confounds two things perfectly distinct ; 
 the existence, and the justice, of the award. The act designed not to 
 leave to the parties the right, at any future time, to question the 
 adjudication of the commissioners, but declared it final and condu- 
 it The words of the act were, " And the several allotments and divisione, and 
 all orders, directions, regulations, and determinations made as aforesaid, and 
 declared in the award, shall be l)inding and conclusive upon all the parties in- 
 terested ; and immediately after the enrolment of the said award, all manner of 
 tithes, ecclesiastical dues, duties, and payments, of what nature or kind soever, 
 arising, renewing, increasing, payable or happening within or out of the lands 
 and grounds thereby directed to be enclosed, or within the said ancient enclosed 
 lands or grounds, or otherwise, howsoever, shall cease and for ever be extin- 
 guished."
 
 LAW TRACTS. 61 
 
 sive. Consider the consequence of a contrary decision. Under the 
 act the award cannot be bad as to the rector, and good as to others. 
 In order to succeed, he must show that there is no award enrolled ; 
 for if there is, his case fails. It is quite clear, that whatever error 
 there might be in the previous allotments, the existence of the award 
 concludes the question. On this ground, it appears to me, that the 
 defendants have completely succeeded in establishing an imperative 
 and decisive bar to the rector's claim." His Honour, therefore, dis- 
 missed the bill, but without costs, as the apparent deficiency of 
 quantity, and a former submission of the defendants to pay tithes 
 in kind, justified the rector in the institution of this suit.'^ 
 
 Another mode of commuting tithe^ on inclosure, is by the allotment 
 of a perpetual corn rent in lieu of all tithes within the parish. The 
 inconvenience of this mode is, that the rent must be paid whether 
 the lands are occupied or not. By this arrangement the parties are 
 in the same situation as if the tithe owner had granted a lease of the 
 tithes at an annual rent. In that case it is quite clear that it would 
 be no answer to an action for the rent, that no tithe in kind was 
 produced, or that the land was unoccupied. The rent is a substi- 
 tute for the tithes, not merely de anno in annum, but for ever. It 
 does not, therefore, follow, that because no tithe in kind was pro- 
 duced, that no money rent is payable. In one sense lands may be 
 said to be unoccupied, if the person entitled to the possession, takes 
 no means to make the land beneficial to himself; but although he 
 does no act of ownership, he may still be in the legal possession and 
 occupation of it, so as to be liable to the burden imposed by an act 
 of parliament. The question, therefore, is not whether the land 
 was productive or not, or whether cultivated or not, but whether the 
 defendant is in the legal possession or not. 
 
 In a late case,'^ the Court of King's Bench was of opinion, that the 
 landlord was in possession during the interval between the quitting 
 of one tenant and the entry of another, so as to be liable to a corn 
 rent imposed by an inclosure act in lieu of tithes, and that the tenant 
 coming in under him was liable to be distrained upon for an arrear 
 of rent accruing due during that interval, for the very act of entry 
 by the new tenant revested the possession in the landlord from 
 the time when the former tenant quitted ; and this being a rent 
 created under sanction of the legislature, was therefore payable in 
 all events. 
 
 16 Cooper V. Thorpe, 1 Swan, 106; 1 Jno. Wils. 55. 
 
 17 Newling v. Pearse, 1 Bam. & Cress. 437-
 
 6j2 law tracts. 
 
 It is lastly observablo, uiulor this division ol tiic subject, that, by 
 the 38th section of the General Inclosure Act, the rector or vicar, 
 with the consent of the bishop of the diocese and of the patron of 
 the living, may lease all or a part of the allotments set out to such 
 rector or vicar for any term not exceeding twenty-one years. Such 
 lease, must necessarily mean a lease with all proper and reasonable 
 clauses and covenants.'** The word " lease" of itself imports a lease 
 according to the custom of the country. By an amendment of this 
 section in the 2d year of the present reign, leases of allotments made 
 by rectors and vicars as aforesaid, and which are avoided or deter- 
 mined by any means before the expiration of the time for which they 
 are granted, may be renewed. '•' 
 
 Note, that under an inclosure act, directing the commissioners to set 
 out, allot, and award lands in lieu of tithes, it was held not sufficient 
 in an action of covenant, by a lessee of the tithes, to aver, in })lead- 
 ing, that the lands were set out and allowed, for t/iat the freehold of 
 the allotment did not vest before theaicard executed. The plea should 
 have averred that the lands were set out, allotted, and awarded.-" 
 
 SECTION VI. 
 
 Of allotments sold 0// the eommissioners for paijmeid of expenses, and 
 herein of the conceyance and stamp. 
 
 Modern inclosure acts contain a power enabling the commissioners 
 to defray the expenses of obtaining and executing the act, either Ijy 
 levying a rate on the several proprietors, or, as more commonly, by 
 enabling them to sell such allotments of land as they shall thhik 
 pecessary for the purpose. In every event, they should have power 
 to sell any part of the allotments of incapacitated persons, on the, 
 application of their trustees, committees, or guardians, for payment 
 of their share of the expenses, as otherwise considei-able inconveni- 
 ence might be experienced in obtaining the contribution of such 
 persons to tlie general cost of inclosure. 
 
 By the General Inclosure Act, it is enacted,' that in case it shall 
 be provided by any local act, that the expenses attending the same 
 
 18 Smith V. Jersey, 2 Brod. & Bing. 602. extending the doctrine in Doe v'. 
 bandham, 1 T. R. 705. a case certainly contrary to the general learning of 
 powers ; ct vide Doe v. Bettison, 12 East, 30.9. 
 
 I'J 1 and 2 Geo. 4. c. 23. s. 4. -^ Ellis v. Amison, 5 Bam. & Aid. 47- 
 
 1 41 Geo. 3. c. 109. s. 32,
 
 LAW TU/VCTS. 63 
 
 shall bo paid by sale of any part of the land so to be inclosed, the 
 commissioners shall set out and sell such part of the waste or com- 
 monable lands as will, in their opinion, be sufficient to raise the 
 expenses required ; and, upon payment of the purchase money, the 
 land so set out and sold shall immediately thereupon be discharged 
 of all common or other rights thereon, and be vested in fee simple in, 
 and be held in severalty by, the purchaser or purchasers thereof, as 
 his, her, and their private and absolute property, and shall be allotted 
 accordingly by the commissioners. It will be proper to add, in the 
 local act, a clause declaring the commissioners' receipts to be good 
 discharges, and that the purchasers shall not be obliged to see to 
 the application of their purchase money. 
 
 From these extracts, it will appear that the land first vests in the 
 purchaser by the operation of the statute, and that the av/ard, which 
 is often drawn up at a considerable distance of time afterwards, is 
 only evidence of what the commissioners have done. Hence, it is 
 generally considered that sales of this description do not require any 
 ad valorem duty to be impressed on the award. A clause, however, 
 is now often inserted, in the House of Lords, empowering the com- 
 missioners to sell and conve//, on which conveyance the regular stamp 
 duty will, without doubt, attach. But the legal estate of freehold 
 does not pais to the allottee until execution of the award ; and 
 therefore, in a late case, wliere the estate v/as sold without any notice 
 that it was recently allotted under an inclosure act, and it appeared 
 'that the commissioners had not made their award, and the act con- 
 'tained no clause authorizing a sale before the award, Lord Ellen- 
 borough was of opinion that the purchaser was warranted in refusing 
 the title.- But if the purchaser is, at the time of the contract, aware 
 that the estate is in a progressive state of inclosure, it has been 
 thought that the purchaser will be compelled to take the title, 
 although the award is not executed.-^ In the case cited, however, there 
 was a clause enabling a sale before the award ; and it is somewhat 
 questionable, whether a court of equity would, without such a clause, 
 compel a purchaser to take a conveyance of land which may be 
 subsequently changed by the commissioners for land of less value 
 or less conveniently situated. 
 
 2 Lomides v. Bray, Sag. V. and P. 301. Cane v. Baldwin, 1 Stark. 65. 
 
 3 Sug. V. and V. 301, citing Kingsley v. Young, 1/ Ves. 403 ; 18 ib. 207-
 
 64 LAW TRACTS. 
 
 SECTION VII. 
 
 Of allotments made to joint-tenants, 2iarticHlar tenants, and remam- 
 der-men; and of mortgages by jjarticuhr tenants, to raise the 
 expenses of inclosiire. 
 
 The 16th section of the General Act recites, that it may happen 
 that some of the proprietors of lands within the parish, in respect of 
 which allotments are to be made, may be seised thereof in joint- 
 tenancy or as co-parceners or tenants in common, and cannot, by 
 reason of infancy, settlement, or absence beyond seas, make an effec- 
 tual division thereof; and therefore it is enacted, that the commis- 
 sioners may, with the consent of husbands, guardians, trustees, 
 committees, &c. make such partition and division, and allot the 
 several purparties in severalty accordingly ; and that after such allot- 
 ments are so made and declared, the same shall be held in severalty 
 in such manner, and subject to the same uses, as the undivided shares 
 would have been held in, and subject to, if the partition had not 
 been made. 
 
 This clause is confined to cases where the parties are under dis- 
 abilities and cannot eifect a partition in the ordinary way. To extend 
 this useful power, a provision is properly added in many modern local 
 acts, that it shall be lawful for the commissioners, at the request of 
 the owners, to divide and make partition of the old inclosed lands, 
 and to award the same and all allotments in respect thereof in 
 severalty. 
 
 Where the commissioners had awarded the allotments to the 
 tenant in remainder, instead of to the tenant in possession, it was 
 considered doubtful whether the tenant for life could raise the ex- 
 penses of inclosure under the provisions of the act ; but on the 
 ground of an acknowledged privity between the particular tenant and 
 the remainder-man,' it was thought probable that a court would 
 tolerate the entry of the tenant for life to save his estate, and if so 
 his right to raise the expenses should follow ; but it was submitted 
 that he could not mortgage until he was in possession. If the clause, 
 distributing the estate in the allotment to the different uses existing 
 in the principal lands be in the act, there can be little doubt that, to 
 whomsoever the allotment is made, it will enure to the existing uses, 
 
 1 Pres. Shep. Tou. 36 ; 9 Co. 106 a.
 
 LAW TRACTS. ()S 
 
 whether those uses confer rights prior or posterior to the rights of 
 the individual to whom the allotment is made. In the absence of 
 that clause, it is assumed the parties in remainder might file bills in 
 equity for a settlement of the allotted lands agreeably to the uses 
 existing in the principal lands. 
 
 If a local act provides that the expenses of obtaining and working 
 the same shall be paid in proportion by the proprietors, it is enacted 
 by the General Act (sec. 29), that the commissioners may, on the 
 neglect or refusal of any proprietor to pay his proportion, cause the 
 same to be levied by any warrant under their hands, on the person 
 or persons so making default, his or their husbands, trustees, &c. ; 
 or the commissioners may enter personally, or authorize any other 
 person to enter on the lands allotted, and receive the rents till the 
 proportionate expenses are satisfied. 
 
 Then follows as powerful a provision as any in the act, enabling 
 husbands, guardians, trustees, committees, or attorneys, as also 
 tenants in tail, tenants for life or lives, or for years, to charge the 
 lands alloted to them respectively, with the expenses which the com- 
 missioners, either before or after their award, shall assess such allot- 
 ments in, so as the same do not exceed 51. per acre ; and to grant, 
 mortgage, surrender, lease, or demise the same allotments to any 
 person who shall be willing to lend and pay such expenses, and to his, 
 her, or their executors, administrators, and assigns, for any term or 
 number of years for securing the repayment thereof. 
 
 By this means, the particular tenant pays no more than the cur- 
 rent interest, and the body of the charge falls, as it should do, 
 on the owner of the property. But this arrangement cannot, under 
 the General Inclosure Act, be effected by the party himself, before 
 the enrolment and publication of the award ; to remedy which incon- 
 venience, it is usual to insert in the local act a provision that it shall 
 be lawful for the proprietors to sell or mortgage their right in the 
 lands to be inclosed before the execution of the award, in which 
 case the allotments are to be made to the purchasers or mortgagees. 
 Vnder this clause as it is generally penned, the particular tenant 
 may, it is assumed, mortgage to defray the expenses of inclosure be- 
 fore the completion of the award. 
 
 If the particular tenant choose to pay the expenses of inclosure 
 himself, the commissioners are empowered ^ by any deed or writing 
 under their hands and seal, to grant, mortgage, &c. the said allot- 
 ment unto such particular tenant, his executors, administrators, and 
 
 ^ 41 Geo. 3. c. 109, s. 30. 2d alternative. 
 G
 
 60 LAW TRACTS. 
 
 assigns, for any term or number of years, to commence after the 
 determination of the estate of such particular tenant in the premises ; 
 but so that the same term may be made void on repayment of the 
 money advanced, with interest ; and also so that no remainder-man 
 shall be liable to pay any further or larger arrear of interest, than 
 for six months preceding the time when his possession shall com- 
 mence. 
 
 The concluding clause of the 30th section of the General Act is 
 important. It declares that " every grant, charge, mortgage, sur- 
 render, lease, or demise made for defraying the expenses of the act, 
 shall be good, valid, and effectual in law for the purposes thereby 
 intended." For some purposes the allotment is to be treated as a 
 new acquisition. It is, however, so far a substitution, that all liens 
 and charges on the incorporeal hereditament, or right of common, 
 will attach on its corporeal substitute the allotment.^ If then tlie 
 right of common be incumbered, previously to the inclosure, to the 
 full extent of its value, it would follow, withovit the lastly-mentioned 
 pro^•ision, that the term created under the mclosure for payment of 
 the expenses, may be postponed to the payment of all other pre- 
 ceding charges, and so rendered hieffectual for the purposes for 
 which it was created. This clause, therefore, does to a certain extent 
 give the mortgagee of the allotment a preference to all other incum- 
 brancers, or rather it ])rovides that in no case shall a mortgage for 
 the inclosure expenses be defeated. 
 
 Hence it is a generally received proposition that mortgage terms 
 created under inclosure acts by tenants for lives, husbands seised 
 jure uxaris, and other persons having but partial interests in the pre- 
 mises, for the purpose of enabling such persons to defray the ex- 
 penses of the inclosure, are, by the authority of the General Act, 
 entitled to priority over all other mortgages and incumbrances, whe- 
 iher the mortgagees have notice oj prior incumbrances or not. These 
 terms are moreover"* said to confer a right to the immediate posses- 
 sion, and to enable the mortgagee and his assignee to maintain an 
 action of ejectment in preference to all other persons. If so, 
 they are certainly to be regarded with more than ordinary atten- 
 tion in all subsequent transactions: but the act is silent as to this 
 preference. 
 
 3 Steele v. Manns, 5 Ban'. & Aid. 22. 
 
 ■* 1 Pres. Abs. p. 165. ; and qu. if the term is entitled to this precedence when it 
 TP assigned to attend the inheritance — when, in fact, there i3 no longer any chance 
 of the mortgage being defeated?
 
 LAW TRACTS. 67 
 
 Where a tenant for life, who was impeachable for waste, felled 
 timber to raise the expenses of inclosure, instead of exercising hiis 
 power of mortgaging, he was decreed to account to the owner of the 
 next estate of inheritance;^ although, according to one report of 
 this case, there were intermediate remainders that might have arisen.'' 
 
 SECTION VIIL 
 
 Of the award ; and sales and other acts before its execution. 
 
 As soon as convenient after the division and allotment, the com- 
 missioners are required ^ to fonn and draw up their award in writing, 
 which must express the quantity of acres, roods, and perches of each 
 respective allotment. The award must be engrossed on parchment, 
 and be read and executed in the presence of the proprietors, at a 
 meeting to be holden on notice given : the execution to be proclaimed 
 in the parish church on the Sunday after ; from the time of which 
 proclamation only and not before, the award is declared final and 
 binding. Hence it appears that the actual division and staking out 
 of the lands, and the assigning or allotting them to the different 
 proprietors, are preparatory measures only, of which the final com- 
 pletion is afterwards to be effected bythe execution and proclamation 
 of a written instrument ; and, consequently, that unless this be varied 
 by the local act, a legal title to an allotment is not acquired before 
 the proclamation of the award. ^ 
 
 Agreeably to these positions it has been adjudged that the allottee 
 has only an equitable interest in the allotment before execution of 
 the award ; and, therefore, that his contract for sale cannot ba 
 carried into effect ; since he cannot convey the legal estate. In sucli 
 a case the vendee must return the deposit ; for if a person will sell 
 that to which he has no title, he must retvu-n the money in soUdo.^ 
 
 5 Lee V. Alston, 1 Ves. Jun. 78, « I Bro. Cli. Ca. 194. 
 
 1 41 Geo. 3. c. 109, s.35. 
 
 2 FaiTer v. Billing, 2 Bam. & Aid. 1/4. It seems to have been considered! at one 
 time, that minutes of the award was a siillicient reduction of the allotments tu 
 writing wnthin the act, to fix the division as final and conclusiive from that time. 
 But the contrary was held in Brandyshe v. Pe;irce,4 Moore, 109. 
 
 a Cane v. Baldwin, 1 Stark. 65. LoM'ntles v. Bray, Stig. V. & P. 301. Cth ed, 
 BiuToughs V. Oakley, 1 Meriv. 376.
 
 6S LAW TRACTS. 
 
 On the part of the vendor it was in this case contended, tliat by the 
 agreement it was to be understood that the purchaser's name would 
 be substituted in the award for that of the vendor's, and that the 
 purchase was in fact of such interest as the vendor had in the pre- 
 mises. But Lord Ellenborough was of opinion, that the defendants 
 had undertaken for the conveyance of a legal estate ; and that 
 as it appeared they had no more than an equitable one, the 
 plaintiff was entitled to recover the deposit for which the action was 
 brought. 
 
 From various circumstances the execution of the award may be, 
 and often is, delayed for several years after the allotments have been 
 accepted and the parties have entered into possession. During 
 which time they have no power to make a legal conveyance. To 
 remove this impediment a very useful clause is now commonly inserted 
 in local inclosure acts, declaring it to be lawful for any person, wha 
 shall be entitled to any allotment by virtue of the act, to give, grant, 
 bargain, sell, demise, surrender, mortgage, limit, convey, and assure 
 the same, or any part or parts thereof, for all or any part of his, her, 
 or their estate, right, or interest therein or thereto, at any time before 
 the execution of the award of the said commissioners ; and that every 
 such gift, grant, bargain, sale, demise, surrender, mortgage, limita- 
 tion, conveyance, and assurance, shall be as valid and effectual in all 
 respects, as if the same had been made after the execution of the 
 said award ; and that the commissioners shall award all allotments,, 
 so sold or disposed of, to the purchaser or purchasers thereof, or 
 other person or persons who shall be entitled thei^to by virtue of 
 such sale, mortgage, or surrender. 
 
 It is generally understood that the commissioners have power to 
 alter the allotments and fences at any time before the completion of 
 the award ; but a special provision to that effect is sometimes intro- 
 duced, with directions that they shall make recompense for any in- 
 jury M'hich such alterations may occasion. This power in the com- 
 missions has been made a serious objection to the title of allotments 
 contracted to be sold before the execution of the award, even where 
 the local act has authorized a sale before the completion of that 
 document ; for that the purchaser cannot be assured that the pro- 
 perty, which he may have purchased for some local convenience, will 
 be conveyed to him. The Master of the Rolls however over-ruled the 
 objection, observing that the provision in the act in review made the 
 conveyance of the allotments before proclamation of the award, valid 
 in law ; that the act authorized the parties to do what they could not
 
 LAW TRACTS. 69 
 
 effect without it ; that the clause was a very reasonable one, for many 
 things might delay the award, and the parties could not in the mean 
 time give a good legal title ; and supposing even the possibility of 
 the commissioners varying the allotments ; yet a party purchasing an 
 allotment, must take subject to the variation, as its liability to altera- 
 tion was inherent in the very nature of the property."* Specific per- 
 formance was consequently decreed ; and that decree was afterwards 
 affirmed on appeal to the Chancellor.^ 
 
 In this case it was also objected that the commissioners could not, 
 without an express power, vary the allotments after the parties had 
 been allowed to enter and fence them off. It would certainly be 
 as well to insert such a power in future acts, if any occasion for its 
 use be contemplated ; but without an express clause it is clear that 
 the commissioners have plenary power to re-arrange the allotments if 
 they should be of opinion that the lands would be more advantageously 
 disposed in another shape : such a remodelling of the allotments has, 
 however, never, it is believed, been effected. It was also stated that 
 the power enabling the allottee to sell, did not enable him to transfer 
 the legal estate ; but the Lord Chancellor said, that the local act having 
 provided that the allotments should be capable of disposition before 
 the award, he could not in a court of equity say, that a contract entered 
 into for sale and purchase, should not be carried into execution.*^ 
 The learned author of ' Vendors and Purchasers ' observes,'' that if 
 there is no ground to suppose that the commissioners will vary the 
 allotments, the title must be accepted. If the purchaser is acquainted 
 that the lands, or part of them, which he has purchased, are in a 
 progressive state of inclosure, their liability to alteration before the 
 execution of the award is, we have seen, an inherent quality in the 
 estate of the land,^ and will not consequently of itself afford the pur- 
 chaser an opportunity of rescinding his contract, for he would be 
 presumed aware of such liability at the time he purchased, being 
 acquainted that the award was not complete. 
 
 From the foregoing observations this general principle may be col- 
 lected, that the legal estate of freehold does not pass to the allottee 
 until after the execution and proclamation of the award, unless an 
 ample power be inserted in the local acts (as above), enabling the allottee 
 to sell and convey before enrolment of the award ; in which case the 
 legal seisin does, in fact, pass, or is under the control of the allottee 
 
 "♦ Kingsley v. Young, 1/ Ves. 4/3. 6 is Ves. 208. 
 
 4 18 Ves. 207. _ 7 Sug. V. & P. 301. 6tli ed. 
 
 8 Kingsley v. Young, sup.
 
 70 LAW TRACTS. 
 
 on allotment.® The award is not a conveyance in any point of view! 
 it is rather the evidence than the constitution of title. The legal 
 estate passes by virtue of the act. The comniisc>ioners do not grant 
 or convey, nor is any technical fonn necessary in their award ;'" but 
 the word 'award' should in strictness he used. The commissioners 
 have no estate in the land ; consequently the heir at law of the sur- 
 vivor can never be a necessary party to a conveyance. The award 
 cannot be vitiated by error in the allotment,'' nor can it be set aside 
 on account of obscurity. '- 
 
 The general act does not state when the allottees are to take posses- 
 sion, whether before or after the execution of the award : it merely pro- 
 vides, that after the commissioners have staked out the allotments, the 
 persons to whom the same are allotted, may, with the consent of the com- 
 missioners, enter to ditch, fence off, and inclose the same ;'^ but all 
 rights of common are to cease on notice to that effect being given by 
 the commissioners, and affixed by their direction on the parish church 
 door;'^ which notice is one of the earliest acts the conmiissioners 
 perform. The local act usually remedies this omission ; and without 
 such remedy, the commissioners may, without doubt, make any 
 general direction respecting the occupation of the allotments, whicli 
 will not afterwards interfere with, or impede the purposes of 
 the act. 
 
 By a late act ** it is provided, that it shall be lawful for all persons 
 to whom any allotment shall be made, and to ichom possession hath 
 been given by the co/nmissioners, and who shall have demised the 
 same, or any part thereof to any tenant or servant, and for their, 
 his, or her bailiff or regent, to enter into and upon any such allot- 
 ment, and to seize ard distrain any goods, chattels, or effects, which 
 may be in or upon the same, notwithstanding the award of the com- 
 missioners shall not be executed and perfected. 
 
 The award is to be enrolled in one of the courts of Westminster, 
 or with the clerk of the peace for the county, in which the lands lie, 
 to the end that recoivne may be had thereto by any person interested 
 therein; for the insp-ection and perusal whereof, no more than one 
 shilling shall be paitl ; and a copy of the said award, or any part 
 thereof, signed by i\\^ proper officer of the court, wherein the same 
 shall be enrolled, or by the clerk of the peace for such couiity, or 
 
 9 Farrer v. Billing, 2 B.rrJ. & Aid. 271. Ellis v. Aniison, 5 il). 47. 
 
 I*' Peck V. Clarkson.i? H". Black. 1318. 13 Sect. 19. 
 
 1' Cooper V. ITiorpe. i fc'v.an, 92. i-* Sect. 14. 
 
 12 Anon. Tidd'e Prac ^'5. 15 I &2Geo. 4. c. 23. s. 1.
 
 LAAV TRACTS. 7[ 
 
 his deputy, purportihg the same to be a true copy, shall from time 
 to time be made and delivered, by such officer or clerk of the peace 
 for the time being as aforesaid, to any person requesting the same ; 
 for which no more shall be paid than twopence for every sheet of 
 seventy-two words ; and the said award, and each copy of the same, 
 or of any part thereof, signed as aforesaid, shall at all times be ad- 
 mitted and allowed in all courts whatever as legal evidence. 
 
 Note, — A commissioner cannot purchase any lands, tenements, 
 or hereditaments within the parish which he is commissioned to in- 
 close, either in his own name, or in the name of a trustee, until five 
 years after the proclamation of the award. '^ 
 
 SECTION IX. 
 
 Acceptance of Allotment ; allotment to the lord; proof of title ; double 
 allotment ; liability of allotment to poor rates ; mode of claiming 
 allotment; of timber on allotments; of allotments of common for 
 small proprietors ; death of commissioner ; abstract; map ; parcels. 
 
 Two calendar months are allowed after the execution of the award, 
 as the period within which all allotments are to be accepted by the 
 several persons to whom they are made ; and if such persons neglect 
 or refuse to accept the same, they are totally excluded from having 
 or receiving any estate or interest, or right of common in any part 
 of the lands or grounds divided and inclosed.' But the act is silent 
 as to the ultimate disposition of any rejected allotment. 
 
 The 24th section enables the commissioners to inclose, fence, and 
 let the neglected lands, and to receive the rents till the proportionate 
 expenses of the act are defrayed ; but it does not state in whom the 
 allotment is to vest after the expenses are paid. If the commissioners 
 have executed their award, can they re-allot the lands so thrown 
 back on their hands, or rather would not such rejected allotment 
 escheat to the lord for want of a tenant ? In ordinary cases the 
 estate would result to the grantor, but here the commissioners have 
 finally executed their trust, (according to some cases, though not so 
 according to others,) and no estate or tenancy is vested in them, nor 
 in the general body of proprietors, who have no legal interest in the 
 allotments till they are respectively awarded to them. 
 
 16 41 Geo. 3. c. 109, 8.2. 
 
 1 41 Geo. 3. c. 109, s. 17. et infra next page, as to the proof of acceptance.
 
 72 LA"^' TRACTS. 
 
 One-twentieth part of the whole waste or commonable place to be 
 inclosed, is usually the proportion allotted to the lord of the manor 
 in respect of his interest in the soil. A question arises, whether he is 
 entitled to a further allotment in respect of any rights of common he 
 may claim as belonging to his demesne lands in the parish intended 
 to be inclosed. Common is defined to be a profit which one man 
 hath in the land of another r Can a man have a right of common in 
 his own land ? Certainly not. There does, therefore, seem some 
 incongruity in allowing the lord an allotment in respect of rights of 
 common over his own soil. Such, however, has been decided in a 
 recent case,^ not on general principles, but on the particular wording 
 of the local act, which directed that one-twentieth part should be 
 allotted to the lord in compensation of his right to the soil ; and 
 then that the residue should be divided among the jiroprietors or 
 several persons interested therein in compensation for their lands 
 rights of common and other rights ; and the Court of King's Bench 
 determined that the lord in this case, who was the owner of a farm in 
 the parish of about 273 acres, was a proprietor within the meaning 
 of the act, and as such was entitled to a further allotmjent in respect 
 of the farm. 
 
 In the language of Lord Ellenborough, the lord of the manor was 
 interested in the division in a twofold way : first, as lord of the soil, 
 and, secondly, in respect of that estate, which, if in the hands of 
 another person, would have conferred a right of common and com- 
 manded an allotment ; and although the lord, being owner of the soil 
 of the waste, could not in sti-ictness claim a right of common over it 
 in respect of his demesnes, inasmuch as during the unity there would 
 be a merger of that right ; yet he had such an interest in respect 
 of his estate as the commissioners might well contemplate, and 
 which, under the words of the act in question, they might lawfully 
 assign him a compensation for."* 
 
 To prove a title to allotments under inclosure acts on the part of 
 the lord, testimony of his being owner of the soil will be necessary ; 
 on the part of the commoner, proof of having exercised his right 
 under the particular circumstances of his claim will be sufficient. It 
 is not, however, necessary for the lord to prove, that there is such a 
 manor existing in law as that of which he calls himself lord, to 
 bring him as plaintiff within the meaning and letter of the Act of 
 
 2 2 Black. Com. 32. 3 AnmdeU v. Falmouth, 2 Mau. & Selw.440. 4 n,. 442.
 
 LAW TRACTS. 73 
 
 Parliament, it will be enough for him to show that he was owner of 
 the waste, which may be done by proving acts of ownership.^ 
 
 If there be two distinct rights of common appertaining to one 
 tenement in different manors, the commoner will be entitled to an 
 allotment in respect of both rights.^ 
 
 Every species of tenement within a parish, yielding a certain 
 profit, is rateable to the poor rates. Common lies not in tenure, 
 though for some purposes, as for parochial settlements, it is said to be 
 a tenement/ Common in gross even, has been held to be a tene- 
 ment ; and it should seem from thence to follow, that it is rateable 
 to the poor rates.^ Tolls in gross are not rateable for want of a 
 corporeal quality.^ Canal shares are rateable as a profit arising 
 from land covered with water. ^" Allotments are of course rateable, 
 and as it is assumed, on a new assessment ; but the General Inclosure 
 Act contains no directions on this head, and therefore it would not 
 be improper to insert a specific clause in future local acts, directing 
 in what way the allotments shall be assessed to the poor rates and 
 taices, and in what hamlet or township they shall be considered tene- 
 ments for parochial and all other pvirposes. Prima facie, they are 
 rateable in the parish where they are situated ; as where proprietors 
 of lands in A had common in the parish of B, it was holden that 
 they were liable to be assessed in respect of lands inclosed from the 
 common in B.*' Where an inclosure act directed that the commis- 
 sioners should ascertain what yearly sum the vicarial tithes of the 
 parish were worth, and that there should be issuing and payable to 
 the vicar, out of the lands, such yearly sum, " free and clear of all 
 rates, taxes, and deductions whatsoever," it was holden that the 
 vicar was not rateable to the poor in respect of the yearly sum so 
 ascertained and paid to hun.'^ 
 
 The 6th section of the General Act provides, that all claimants of 
 common, or other rights in lands to be inclosed, shall deliver in to 
 the commissioners an account or schedide in writing, signed by them- 
 selves, or their respective husbands, guardians, trustees, committees, 
 or agents of such their respective rights or claims, and therein describe 
 the lands and grounds, and the respective messuages, lands, tenements, 
 and hereditaments, in respect whereof they shall respectively claim 
 
 5 Smith V. Smith, 2 Price, 101. 6 Hollingshead u. Walton, 7 East, 485. 
 
 7 1 Watk. Cop. 40 n. 4th ed. 
 
 8 Per Ld. EUenborough in Rex v. Watson, 5 East, 485. 
 
 9 Rex V. BeU, 5 Maul. & Selw. 222. 
 
 10 Rex V. Palmer, 1 Bam. & Cress. 546. 2 Dow. & Ry. 793. 
 
 n Kempe v. Sperlte, 2 W. B. 1244. '^ Chatfield v. Ruston, o B. & C. 863. 
 
 H
 
 74 LAW TRACTS. 
 
 to be entitled, with tlie name or names of the person or persons then 
 in the actual possession thereof, and the particular computed quan- 
 tities of the same respectively ; and of what nature and extent such 
 right is, and also in what rights, and for what estates and interests 
 they- claim the same respectively, disthiguishing the freehold from 
 the copyhold or leasehold ; — evidently showing an intention in the 
 legislature, that a distinction should be made in the allotments for 
 several titles and tenures in one owner. A non-compliance with this 
 requisition will exclude the party from all participation in the lands 
 to be divided, if the commissioners, either casually or intentionally, 
 omit to make him any allotment. The claims so delivered in are 
 to be open to all persons, who may take copies thereof, and present 
 objections to the same at a special meeting to be appointed for that 
 purpose. The objections here referred to, must of necessity be 
 confined to local matters, as by the next section of the act, the com- 
 missioners are expressly forbidden to adjudicate disputes touching- 
 rights or titles, but are directed to assign the allotments to the per- 
 sons in the actual seisin or possession. 
 
 On the principal provision Sir W. D. Evans observes, " the draw- 
 ing a claim conformable to this clause, requires a very considerable 
 portion of technical accuracy ; and I have, in practice, known many 
 valuable rights defeated in consequence of the informality of the 
 claim. The discretion reposed in commissioners upon this subject 
 is extremely liable to abuse, as such commissioners have, if not gene- 
 rally, at least very frequently, the feeling of agents for the parties 
 by whom they are nominated ; and I have actually heard a commis- 
 sioner avow, that he considered himself as the agent of a particular 
 desci'iption of claimants ;^- and it is obvious that a person with such 
 feelings may be induced to admit or reject the presentation of further 
 claims, according to the interests which he is disposed to espouse. 
 The most suitable remedy for this inconvenience would be a general 
 enactment, that all objections to claims should be particularly stated 
 in writing ; and that the claimant should be at liberty to amend his 
 claim in the particulars objected to."'^ 
 
 The imi)ortance of this claim is further manifested by a late case, 
 where an allotment was made to a person in the visible possession, but 
 whose title was afterwards questioned. The claimant had omitted 
 to comply with the requisitions of this section, and the court refused 
 to acknowledge his right to the allotment, whether he had title or 
 not. The case was briefly this : — A testator being seised of a mes- 
 
 '■-' Lords of manors, collegiate owners, and corporate bodies, possessing lands in 
 the parish to be inclosed, often insist on having one of the commissioners of their 
 own nomination and appointment. '3 i Eyaia. tStat. 2y n. 2d ed.
 
 LAW TKACTS. 
 
 suage and twenty-four acres of land at D, piu-chased the tithes 
 thereof of the lay impropriator, and devised the same to trustees for 
 sale, by the description of his freehold messuage and tenement at D, 
 and all the profits arising therefrom. The trustees sold the estate and 
 tithes to the defendant, who, at the time of inclosure, was in posses- 
 sion ; and the commissioners set out an allotment to him in lieu of the 
 tithes, and another allotment in respect of the land. The testator's 
 heir-at-law contended, that the word profits, in his ancestor's will, 
 was insufficient to pass the tithes which, in consequence, descended 
 to him; and on that ground he commenced an ejectment against the 
 allottee, for recovery of the lands set out to him in lieu of the 
 tithes. It appeared that the commissioners had not executed their 
 award at the time of trial, but no notice was taken of that circumstance. 
 The heir-at-law had not made any claim for an allotment in respect 
 of tithes at a meeting duly holden by the commissioners for receiving 
 claims ; nor, indeed, had any claim been put in for an allotment in 
 respect of the tithes, by any one. The question was, whether the heir- 
 at-law w-as entitled to recover the allotment after it had been marked 
 and staked out by the defendant. 
 
 The Court of Common Pleas declined giving any opinion on the 
 construction of the word profits ; but decided, that the heir-at-law, 
 if he had any right to the tithes, was barred of all claim to the allot- 
 ment, by reason of his non-comphance with the requisition of the 
 sixth section of the General Inclosure Act, which required a speci- 
 fication of all claims to be delivered in to the commissioners ; or in 
 default thereof, the right to be totally barred, and the party excluded 
 from all benefit and advantage of the inclosure. Unless this were so, 
 observed the court, the commissioners might make an allotment, and 
 when the occupier had gone to expense in improving it, another 
 claimant might come and establish a superior title. It would be 
 manifest injustice to allow any such attempt, and inconsistent with 
 the expressions of the General Inclosure Act. The excellent maxim 
 of law was, mgilantibus et non dormientibus subveniunt leges. Judg- 
 ment was therefore given for the defendant.'^ 
 
 In this case, it was further contended, that the sixth section of 
 the General act did not apply to tithes. It appeared, however, to 
 the court, that it was equally necessary for the owners of tithes to 
 make their claim before the commissioners, as for the owners of land. 
 The word hereditaments was a word pecvdiarly applicable to tithes, 
 and it was introduced to prevent the mischiefs arising from omission 
 to estabhsh a claim before the commissioners. It was intended, that 
 every person should assert his right within a given time, and if he 
 
 H Doe V. Jefferson, 2 Bing. 125,
 
 76 l^-^W TRACTS. 
 
 omitted to do so, should forfeit all right. In the present case, 
 meetings were regularly holdcn ; the heir made no claim ; if he could 
 now come forward with success, he might lie by till the land was 
 improved, and then recover it with all its improvement, which could 
 never be alloAved.'^ 
 
 By the twenty-second section of the General act, it is directed 
 that all timber and other trees, thorns, and bushes, on the lands 
 allotted, shall become the property of the respective allottees, they 
 paying the owner of the said trees such sums for the same as the 
 commissioners shall direct.i« — ^Who is the owner of such trees ? — 
 It is presumed, the lord of the manor, who has the power to plant 
 trees on his own waste, provided they do not injure the rights of the 
 commoners.''' 
 
 Where there are several small commoners, it is not unusually pro- 
 vided in local acts, that the commissioners shall set out a piece of 
 land whereon the smaller proprietors shall enjoy a right of inter- 
 commoning for a limited number of cattle. In a case where the 
 commissioners, under a provision of this kind, awarded that certain 
 persons should for ever thereafter use and enjoy a specific allot- 
 ment, as a common of pasture, exclusive of all others whatsoever, it 
 was held, that the rights of the commoners were still subservient to 
 the right of the lord to take stone from underneath the soil as he had 
 theretofore done, it appearing that both before and since the award 
 the lord had exercised that right. '^ If the lord, in this instance, 
 purchase all the rights of common, he of course becomes seised in 
 fee simple in severalty, the rights merging in the lordship or seignory. 
 
 On the death of a commissioner, before the execution of the 
 award, it is essential, in regard to a strict deduction of title to the 
 allotment, to observe that his successor has been duly appointed. 
 For this purpose, the minutes of his appointment should be called for. 
 It is also observable, that where three commissioners are appointed, 
 and the ^ct declares that the acts of any two shall be binding, — yet 
 it requires the existence of three commissioners for the valid per- 
 formance of acts by the other two. On this ground it has been held, 
 that one commissioner being dead, the acts of tlie other two are 
 invalid.'^ 
 
 An abstract of title to allotments should be supported by official 
 extracts of the award, and a copy of the local act of Parliament ; and 
 
 15 1 Bing. 125. This reasoning, however, is scarcely sustainable, as the greatest 
 possible improvement could not alone give title to land. 
 
 16 41 Geo. 3. c. 109. s.22. '7 Kerby v. Sadgrove, 1 Bos. & Pul. 13. 
 
 18 Place V. Jackson, 4 Dow. and Ry. 318; but see Johnson v. Hodson, 8 East, 
 38, where the lord of the manor was held to be a trustee for the allottee of Herbage. 
 
 19 Doe V. Middleton, 3 Brod. & Bing. 214. As to a commissioner's liability 
 for expenses, see Eaton v. Bell, 6 Bam. & Aid. 34.
 
 LAW TRACTS. 
 
 the purchaser is entitled, at the vendor's expense, to compare the 
 description of the parcels in the abstract with the map usually 
 deposited with the award ; by which means he may, in most cases, 
 be able to discover the situation of the old inclosures, and so perhaps 
 to identify the lands. This identification is sometimes matter of 
 great difficulty, by reason of the alteration effected by the inclosure, 
 in the boundaries of the several lands within the parish. Where 
 such extensive alterations are in contemplation, or likely to arise, it 
 would perhaps be advisable to preserve a plan of the parish as it 
 stood at the time the inclosure-surveyor entered it, especially if com- 
 mon field lands are to be inclosed. The utility of such a plan must 
 be apparent, when it is recollected that the allotments are to be 
 considered as comprehended in the former conveyances, and that the 
 descriptions in those conveyances may often and generally do require 
 a comparison with the actual situation of the lands to render them 
 intelligible. 
 
 It is further worthy of note, that the preparation of plans and 
 maps, for the purpose of carrying an inclosure into effect, is no evi- 
 dence of an allotment, under an act which gives an appeal against an 
 allotment within six months after a cause of complaint has arisen, 
 and it suffices to appeal within six months from the time when the 
 allotment was conclusively made.^" 
 
 2* Rex V. Middlesex J. 1 Chitty Rep. 366 ; et vide ante GS. 
 
 NAMES OF CASES CITED. 
 
 AnonjTROUs (Tidd Pr.) 70 Ellis v. Saul, 55 Place v. Jackson, "JCy 
 
 Arundell v. Falmouth, 72 Eton Pro. v. Winton Bp. 53 Revell v. Jodrell, 39 
 
 Att. Gen. v. Fullarton, 36 Farrer v. Billing, 49, ii] , 70 Rex v. Bell, I'd 
 
 Att. Gen. v. Vigor, 45, 46 Flower v. Baldwin, 48 Rex v. Flockwood Commis- 
 
 Badger v. Ford, 4 1 Goodtitle v. Otway, 45 sioners, 52 
 
 Bennett v. Gandy, 48 Gwydir v. Foaks, 56 Rex v. Fox, 5/ 
 
 Brandyshe v. Pearse, 67 Haggerton v. Dugmore, 37 Rex v. Middlesex, 77 
 
 Buck V. Merton, 49 Hatfield v. Rowlins, 56 Rex v. Palmer, 73 
 
 Burroughs v. Oakley, &] Hollingshead v. Walton , 73 Rex v. \^'arblington , 4 1 
 
 Bustard i;. Coulster, 53 Kempe v. Carter, 39 Rex v. Watson, 73 
 
 Byam v. Booth, 55 Kempe v. Spence, 73 Roe v. Jones, 44 
 
 Byron v. Lamb, 54 Kerhy v. Sadgrove, IG Selwin v. Selwin, 44 
 
 Cane v. Baldwin, 63, (Jl Kingsley v. Young, 63, 69 Smith v. Jersey, 62 
 
 Chatfield v. Ruston, 73 Knollys v. Alcock, 45 Smith v. Smith, T-i _ 
 
 Cooper V. Thorpe, 61,70 Lambert v. Gumming, 56 Speer v. Crawter, 36 
 
 Doe V. Bettison, 62 Lee v. Alston, 67 Steele v. Manns, 56, 66 
 
 Doe V. Davison, 39, 40, 4 1 Leeds v. Strafford, 36 Steel v. Prickett, 4 1 
 
 Doe V Jefferson, 75 Lowndes v. Bray, 63, 67 Stockwell v. Terry, 55. 56 
 
 Doe V. Middleton, 76 Luther v. Kirby, 45 Townley v. Giteon, 39, 4 1 
 
 Doe V. Sandham, 62 Moncaster?; .Watson, 56, 57 Vawser v. Jeffery, 45 
 
 Eaton V. Bell, 76 Newling v. Pearse, 61 Wade ;;. Conyers, 36 
 
 Ellis V. Amison, 62, 70 Northwick ?;. Stanway, 4 1 Warwick v. Collins, 55 
 
 Ellis V. Fermor, 56 Peck v. Clarkson, 70 Williamayu. Owens, 45
 
 INDEX 
 
 TO THE PRECEDING TRACT. 
 
 ABSTRACT of title, observations on, 7C. 
 ACT OF PARLIAMENT, 
 
 recommended to remedy the defective 
 mode of executing inclosure commis- 
 sions, 35, 37, 38. 
 
 what provisions it should contain, 38. 
 
 act confers power, award executes it, 41. 
 AGISTMENT TITHE— what it is, 55. 
 
 due for commons, 55, 56. 
 
 extinguished on inclosure, 55. 
 ALLOTTEE may take possession of allot- 
 ment, when, 70. 
 
 he has only an equitable interest till award 
 proclaimed, 67. 
 ALLOTMENT — general, to one ownerin re- 
 spect of different farms, 34, 35. 
 
 modes of appropriating, 35, 37, 38. 
 
 in respect of leasehold, freehold, and copy- 
 hold lands, 38. 
 
 in respect of leasehold, is freehold, 39. 
 
 in respect of copyhold, is a freehold, 39. 
 
 is always in fee simple, 41. 
 
 gives vote at county elections, 38, 41. 
 
 in lieu of waste, lord cannot grant it as 
 copyhold, 41. 
 
 of clause communicating prior title to, 42. 
 
 what if there be no such clause, 42. 
 
 cannot pass by word ' appurtenances,' 43, 
 49. 
 * of inceptive seisin in, by act, 44. 
 
 if to be treated as a new acquisition, 45, 
 46, 47, 66. 
 
 devisees of, how they take, 49. 
 
 useful clause of appropriation, to be intro- 
 duced in future acts, 49. 
 
 of title to allotments under exchanges, 51. 
 
 in lieu of tithes, 54. 
 
 can seldom be pleaded exempt from tithes, 
 55. 
 
 not liable to agistment tithe which attached 
 on common, 55. 
 
 what if common be exempt from tithes, 56, 
 57. 
 
 of corn rent in lieu of tithes, 61. 
 
 by commissioners for paying expenses, 62. 
 
 to purchaser for expenses, vests by act, 
 and does not wait for award, 63. 
 
 to joint tenants, particular tenants, and 
 remainder-men, 64. 
 
 to particular tenant, may be charged by him 
 with corpus of expenses, 65. 
 
 legal title to, cannot be made till award 
 proclaimed, 67. 
 
 till when, allottee has only an equitable 
 interest, 67. 
 
 of provision enabling conveyance before,67. 
 
 may be altered at any time before award,67. 
 
 error in, does not vitiate award, 70. 
 
 possession may be taken of, when, 70. 
 
 distress may be made on, when, 70. 
 
 as to acceptance of, 71. 
 
 as to the disposition of any rejected allot- 
 ment, 71. 
 
 to lord, he is entitled to two, when, 71, 72. 
 
 of proof of title to, 72. 
 
 of double allotment, 73. 
 
 assessable to what taxes and poor rates, 73. 
 
 claim of, requisites to, 73,' 74. 
 
 should be made to person in possession, 74. 
 
 ALLOTMENT— con<jn«erf. 
 
 of commons for small proprietors, 76. 
 not evidenced by plans and maps before 
 award, 77. 
 See Settlements, Mortgages, Incum- 
 brances, Leases, iVUh, Remainders, 
 Entails. 
 ALTERATION, 
 
 possibility of, afler allotment and before 
 award, no solid objection to title, 68. 
 APPROPRIATION, 35 
 
 useful clause of, for future acts, 49. 
 APPURTENANCES will pass an allotment, 
 
 where, 49, 43. 
 ARBITRATORS, 
 
 comparison of commissioners to, 37. 
 AWARD — power of conunissioners does not 
 cease with, 37. 
 
 if a second may be made ? 37. 
 if it relates back to act, 44. 
 legal estate does not pass till execution of, 
 
 49, 62, 67. 
 except as to allotment to purchaser for 
 
 payment ofexpenses, 63. 
 cannot be set aside for obscurity, 70. 
 cannot be impeached after 50 years, 59, 
 
 70. 
 except on clear and indisputable evidence 
 
 of error, 59. 
 and even then there is in most acts a clause 
 
 which creates an insuperable bar, 60. 
 sample of this clause, 60. 
 of land to purchasers for payment ofexpen- 
 ses, requires no stamp, 63. 
 is not a conveyance, 70. 
 of its execution and publication, 67. 
 final, from proclamation only, 67. 
 minutes of, no reduction of it into writing, 
 
 67, 77. 
 of proviso enabling conveyance before, 68. 
 as to the enrolment of, 70. 
 official copy of, evidence, 71. 
 may be inspected, when, and by whom, 71. 
 BAR — of the bar created by inclosure acts, 60. 
 BARGAIN AND SALE, 
 
 difference as to relation of, when, under 
 Stat, of Uses, &i>tats.of Bankruptcy,48. 
 relation of enrolment under, 47, 48. 
 BOUNDARIES, 
 
 as to commission for ascertaining, 35, 36. 
 BUTLER and WILBRAHAM, 
 
 their opinions on operation of will between 
 act and award, 43, 44, 49. 
 CHANCERY, 
 
 as to commission from, to ascertain boun- 
 daries, 35, 36. 
 CLAIM of allotment, requisites to, 73. 
 
 consequences of not making claim, 74. 
 as to drawing a claim pursuant to this 
 
 clause, 74. 
 case exemplifying importance of, 74. 
 COMMISSIONERS, 
 
 inconveniences of their mode of executing 
 
 the inclosure commission, 34 to 38, 49. 
 how such evils may be remedied, 35, 38. 
 power does not cease with award, 37- 
 mandamus will lie to, when, 52. 
 hold a judicial office, 52. 
 have power to adjudicate finally on mat-
 
 INDEX. 
 
 79 
 
 COMMISSIONERS— co«<i««erf. 
 
 ters of quantity, quality, & situation, 59. 
 but not on titles, 34. 
 may alter allotment at any time before 
 
 award, C9. 
 do not grant or convey, but award, 70. 
 heir at law of, never a necessary party, 70. 
 cannot purchase lands in the parish till 
 
 five years after award, 71. 
 appointment of new, where one dies, 76. 
 death of one, acts of surviving two invalid, 
 
 76. 
 as to their liability to expenses, 76, n. 
 lords of manors, and collegiate and cor- 
 porate bodies, usually have a commis- 
 sioner of their own, 74, n. 
 COMMON — incumbrances on, attach on allot- 
 ment, when, 66. 
 not so as to defeat mortgage for expenses, 
 
 66. 
 rights of, become extinct on notice, 70. 
 no tithe for, if appurtenant, 55. 
 in gross, pay what tithes, 56. 
 as to lease of tithes on farm having com- 
 mon appurtenant, and allotment in lieu 
 thereof, 57. 
 of its rateability to taxes and poor rates, 73. 
 allotment of, for small proprietors, 7C. 
 See Tenants in. 
 CONTINGENT REMAINDER, 
 
 devise of, valid, on what grounds, 44, n. 
 CONVEYANCE, 
 
 award is not in the nature of, 70. 
 from commissioner to purchaser requires 
 ad val. stamp, 63. 
 COPYHOLD and freehold, as to general allot- 
 ment for, 35, 38. 
 
 allotment in respect of, is a freehold, 39. 
 and in fee simple, 41. 
 provision, now common in modern acts, 
 
 declaring allotment copyhold, 41. 
 exchanged for freeholds, what alteration 
 
 of tenure, 53. 
 lord cannot grant allotment in lieu of waste 
 as copyhold, though he might have so 
 granted waste, 41. 
 CORN RENT, 
 
 allotment of, in lieu of tithes, 61. 
 not evaded by vacancy of possession, 61. 
 DEATH of commissioner, 76. 
 
 See Commissioner. 
 DEVISEES 
 
 of general allotment, how they take, 49. 
 DISABILITIES, 
 
 commissioner may make partition when 
 
 joint tenants labour under, 64. 
 of provisions in act for persons labouring 
 under, 62. 
 DISSEISIN 
 
 and remitter, no revocation of will, 45. 
 DISTRESS — may be made on allotment be- 
 fore award, when, 70. 
 See Corn Rent. 
 ELECTIONS, when allottee may vote at, 38. 
 ENCROACHMENTS, 
 
 [most local acts provide for, by declaring 
 that they shall not be impeached after a 
 specific time before the passing of the act. ] 
 ENROLMENT, 
 
 difference in effect of, of bargain and sale 
 under stat. of uses, and bargain and sale 
 under stat. of bankruptcy, 48. 
 of bargain and sale, relation of, 48. 
 of award, as to, 70. 
 ENTAIL, 
 
 of clause fixing allotment with, 42, 13. 
 
 EQUITABLE TITLE, 
 
 allottee has only an equitable title till 
 award proclaimed, 67. 
 ERROR 
 
 in allotment does not vitiate award, 70. 
 except when, 59. 
 ESCHEAT : if rejected allotmentescheats?7l. 
 EVIDENCE — official extract or copy of award 
 is, what, 71. 
 allotments not evidenced by plans and maps 
 before award, 77. 
 EXCHANGE— of revocation by, 46. 
 
 of exchanges under inclosure acts, 50. 
 what evidence necessary to call for, 50. 
 of the reciprocal communication of title to 
 
 the lands exchanged, 51. 
 what exchanges allowable at common law, 
 
 51. 
 unlimited under inclosure acts, 51. 
 exchanges are under control of commis- 
 sioners, 52. 
 not to prejudice remainder-man, 52. 
 word nnports an equality of interest, 52. 
 of freeholds for copyholds, 52, 53. 
 if allowed as between three persons under 
 inclosure acts, 53. 
 EXPENSES — of allotments by commissioners 
 for payment of, 62. 
 such allotment vests by act, not by award, 
 
 63. 
 commissioner's remedy for recovery of, if 
 
 allottee neglects to pay, 65. 
 allottee, having only partial interest, may 
 charge corpus of expenses on allotment, 
 65. 
 whether he can do this before or after the 
 award, 6b. 
 FINE, no revocation of will when levied by 
 tenant in tail, with remainder to himself 
 in fee, 45, n. 
 FREEHOLD— allotments always are, 39, 41. 
 
 does not vest till award, 49, 62. 
 IDENTIFICATION of parcels, 77. 
 
 See Parcels. 
 INCUMBRANCES, 
 
 prior, attach on allotment, 42. 
 INSPECTION 
 
 of award, as to time and persons, 71. 
 JOINT-TENANTS, 
 
 whether devisees of general allotment 
 
 take as ? 49. 
 of allotments to, 64. 
 
 commissioners may make partition when 
 either party is under disabilities, 64. 
 LEGAL ESTATE, 
 
 does not pass till after proclamation of 
 
 award, 49, 62, 67, 69. 
 unless provision be made that it shall pass 
 
 on allotment, 69. 
 or allotment be to purchaser for payment 
 of expenses, 63. 
 LEASE — at rack-rent, of lands inclosed, does 
 not attach on allotment, 42. 
 of tithes, how it affects tithes of allotment, 
 57, 58. 
 LEASEHOLD and freehold, as to general al- 
 lotment for, 35, 38. 
 allotment in respect of, is freehold, 39. 
 of remedy in equity to compel a settle- 
 ment of allotment to those in remainder, 
 39. 
 LORD OF MANOR, 
 
 if he is entitled to two allotments, 71, 72. 
 one twentieth part usually assigned to, 72. 
 MANDAMUS 
 
 will lie to commissioner, when, 52.
 
 80 
 
 INULX. 
 
 MINUTES 
 
 of award not a reduction of it into writing, 
 
 (J7. 
 of new commissioners appointment, re- 
 quisite, when, 76. 
 MORTGAGE, prior, attaches on allotment, 42. 
 for payment of expenses, whether it may 
 
 be made before or after award, 65. 
 by particular tenant when expenses paid 
 
 by himself, 65, 
 priority of such mortgage, 66. 
 PARCELS, 
 
 as to description and identification of, 77. 
 PARTITION— :is to bill in equity for, 37. 
 by compact, observations on, 38. 
 if a revocation, 45. 
 
 commissioners piay make, when joint 
 tenants labour under, 64. 
 PLAN, 
 
 preservation of old plans recommended, 77. 
 POOR-RATES, 
 
 to what, allotment assessable, 73. 
 canal shares rateable to, 73. 
 POSSESSION 
 
 of allotment may be taken, when, 70. 
 allotment should be made to person in, 74. 
 POWER, relation of deed exercising, to deed 
 creating, 48. 
 
 See !^et (^Parliament, 
 PROCLAMATION, 
 
 award not final till, in parish church, 57. 
 PROFITS— if tithes will pass by that word, 74. 
 PROOF of title to allotment, 72. 
 RATEABILITY 
 
 of allotments to taxes and poor-rates, 73. 
 RATES may be levied after award, 37. 
 RECTOR 
 
 may lease allotment in Ueu of tithes, 61. 
 REJECTED ALLOTMENT, 
 
 as to its disposition, 71. 
 BflLATlON, 
 
 of enrolip^ on bargain and sale, 48. 
 doctrine of, applied to act and award, 44, 
 47. 
 REMAINDER-MAN 
 
 may compel allottee to settle the lands to 
 
 uses of settlement, 39, 64. 
 uot to be prejudiced by e*ohcinges, 52. 
 REMAINDERS, 
 
 of clause fixing allotment w itb, 42, 43. 
 REMEDIES, 
 
 for inconveniences arising from inclosure 
 acts, suggested, 35, 37. 
 REVERSION, 
 
 devise of, not affected by fine, 45, n. 
 REVOCATION, 
 
 principle of, arpplied to will between act 
 
 and award, 44. 
 by disseisin, fine, partition, appointment, 
 
 and exchange, 45, 46, 48. 
 not a question of intention, when, 47. 
 RIGHTS, all boimd by award, 75. 
 SEISIN, inceptive by act, 44. 
 
 does not vest till execution of award, 69. 
 SETTLEMENTS (marriage) of clause fixing 
 
 allotment with operation of, 42. 
 ' SHALL AND MAY,' imperative, when, 52. 
 STAMP on conveyance or award of land to 
 purchaser, for payment of expenses, C3. 
 
 SUBSTITUTION clause 42, 43, 47. 
 TAXES, rateability of allotment to, and poor- 
 rales, 73. 
 TENANTS IN COMMON— Whether devi- 
 sees of general allotment take as ? 49. 
 TENANT FOR LIFE, 
 
 if he may enter on allotment made to 
 remainder-man, 64. 
 
 jnay charge corpus of expenses on allot- 
 ment, 05. 
 
 paying expenses, commissioners may 
 award allotment as a security till money 
 repaid, 65, 66. 
 
 if he may fell timber to pay expenses ? 67. 
 TENANT IN TAIL, 
 
 with remainder to himself in fee, fine by, 
 no revocation, 45. 
 TENEMENT, 
 
 common in gross is, for some purposes, 73. 
 TIMBER, if tenant for life can fell for pay- 
 ment of expenses? 67. 
 
 on allotment, who entitled to, 76. 
 TITHES— of allotments in lieu of, 54. 
 
 exemption of, for barren waste, 54. 
 
 waste inclosed can seldom be such, 55. 
 
 allotment can seldom be pleaded exempt 
 from, 55. 
 
 exemption of on common, no exemption 
 of allotment, 56. 
 
 unless exemption be of mixed as well as 
 predial tithes, 57. 
 
 as to lease of, on farms having common 
 appurtenant, and allotment in lieu of 
 the common, 57. 
 
 of provision making whole parish tithe- 
 free, 58. 
 
 allotment in respect of, solely under con- 
 trol of commissioners, 58. 
 
 after 50 years it cannot be supposed they 
 have failed to consider the quantity, 
 quality, and situation, 58, 59. 
 
 mode of commuting by the allotment of a 
 perpetual corn-rent, 61. 
 
 not evaded by vacancy of possession, 61. 
 
 rector may lease allotment in lieu of, 62. 
 
 if Cth section of general iuclosure act ap- 
 plies to, 75. 
 
 if they will pass by the word ' profits,' 74. 
 TITLE, commissioners not to settle disputes 
 concerning, 34. 
 
 of clause communicating prior title to al- 
 lotments, 42. 
 
 what if there be no such clause, 42. 
 
 of the double title to lands exchanged, 51. 
 
 that allotment may be altered before award, 
 no objection to, 68, 69. 
 
 proof of, to allotment, 72. 
 VE>fDOR AND PURCHASER, of objections 
 
 to title on account of liability to re-allot- 
 
 ment, 68. 
 VICAR— (see Rector.) 
 WILBRAHAM— (see Bulkr.) 
 WILL, operation of, when made between act 
 and award, 43 to 49. 
 
 of revocation of, by disseisin, partition, 
 fine, appointment, and exchange, 45, 
 46, 48. 
 
 of clause fixing allotment with operation 
 of, 42. 
 
 ERRATUM. 
 Page 55, line 29, dele " or rather not paying any other tithe to the same parson."
 
 LAW TRACTS. 
 
 No. III. M^ 
 
 AN INQUIRY 
 
 INTO 
 
 THE SOUNDNESS OF CERTAIN IMPORTANT POINTS 
 RELATIVE TO 
 
 EXECUTORY LIMITATIONS 
 
 LATELY IMPEACHED. 
 
 BY A LICENTIATE. |p 
 
 The text of this Tract is taken from Butl. Fearne Cont. Rem. p. 1 : 
 
 " A CONVEYS land by lease and release to B and his heirs, to the use 
 of C and his heirs, from the 1st day of the following January; or 
 devises land to C and his heirs, from the 1st day of January next 
 after the testator's decease. In the first case the fee remains in A ; in 
 the second it descends to the heir-at-law of A, till the day arrives 
 upon which C is to be entitled to the lands for an estate in fee-.*imple 
 in possession. In the mean time C has not an estate in possession, 
 as he has not a right of present enjoyment: — he has not an estate in 
 remainder^ as the limitation to him depends on the estate in fee- 
 simple, which, in the first case, remains in A ; and in the second de- 
 scends to A's heir : — he has not a contingent estate, as he is a person 
 in being and ascertained, and the event, on which the limitation to 
 him depends, is certain : — and he has not a vested estate, as the 
 whole fee is vested in A and his heirs. He therefore has neither a 
 vested nor contingent estate ; the limitation is executorij, and confers 
 
 I
 
 8ri LAW TRACTS. 
 
 on him and his heirs a certain fixed right to an estate in possession 
 at a future period." — Butl. Fearne, Cont. Rem. p. 1, n. 3. 
 
 OBJECTIONS. 
 
 It is objected, first, that the fee cannot remain in A or his heir till 
 the day arrives, for, it being morally certain that the day will arrive, 
 the fee-simple and inheritance, which is an estate unbounded in dura- 
 bility, cannot be so circumscribed and fixed. 
 
 Second. That A or his executor has a term, with all the qualities 
 and attributes of a term — it has a certain commencement, — and a 
 certain end. It would, therefore, in the language of Mr. Watkins, 
 be a confounding of all ideas, — an abuse of language, — an insult to 
 common sense, to affirm that an estate of a definite dm-ation is not 
 a term. 
 
 Third. That the limitation to C is vested, the person being ascer- 
 tained and the estate defined ; it is admitted not to be a contingent 
 estate, it must therefore be vested — there is no alternative. 
 
 Fourth. That the limitation to C is not executory; because it 
 confers on C a certain fixed right to the possession at a future period; 
 that it is a misapplication of terms to call that estate executory which 
 confers on the owner a vested right of future possession. Upon that 
 ground, indeed, every vested remainder might be styled executory; 
 but the limitation in question is even less executory than a vested 
 remainder ; for it cannot, like a remainder, be barred or destroyed, 
 so certain is it of coming into possession. C's estate, therefore, is 
 executed, and not executory. 
 
 Fifth. That the limitation to C is improperly classed under the 
 head " Executory devise," for it has no one quality of that descrip- 
 tion of interest, and has all the qualities of a vested executed re- 
 mainder. It should therefore have been denominated a Remainder. 
 
 Lastly. To embody the foregoing objections into one proposition, it 
 is contended, that the sound construction of the above limitation and 
 devise is — a term to A or his executor until the 1st of January, with 
 a vested remainder to C in fee. 
 
 These objections ai*e enforced by reasons such as these : — 
 
 The subject in contemplation is conditional limitations and execu- 
 tory devises depending on events in suspense; but the exempli- 
 fication adduced is perfectly independent of every thing resembling 
 the name or nature of an event. There is no suspense whatever 
 attached to the limitation over, and it is wholly free from every con- 
 ditional quality. By the conveyance A has no right of enjoymeait 
 beyond the specified time ; he is deprived of his former unbounded
 
 LAW TRACTS. 83 
 
 Hglit of possession, and entitled to a restricted and circumscribed 
 rio-ht only. This, therefore, is an entirely new right created in A as 
 well as in C, which places him upon the footing of a termor — the 
 estate which he so takes back answering exactly to that description 
 of interest. It is admitted that the conveyance creates a momentary 
 seisin of the -whole fee-simple in B, but that for want of a declared 
 use of the immediate possession, the law furnishes one by implication, 
 viz. to A, the releasor ; now it is totally repugnant to reason, that 
 such implication should extend so far as to invest in him a greater 
 portion of interest than it is even impliedly supposed he intended to 
 reserve, and actually give him back the inheritance when he meant 
 only to take or retain an estate for years : thus making him tenant 
 in fee who has only a right of enjoyment for a few days, and the de- 
 termination of whose temporary right does not depend on any con- 
 tingency, but must unavoidably take place at the period when the 
 certain fixed right conferred on C is to commence. If it be said that 
 the limitation to C does not come within the definition of a remainder 
 because it is not the remnant of an estate expectant upon a particular 
 estate created therewith, it is asked, whether any rule of law requires 
 such particular estate to be created by words expressed ? and if not, 
 what difference it can make in respect to remainders, whether the 
 particular estate be created by words expressed, or arise from the 
 effect of words wijylied? and what can approach nearer to the idea 
 of a remnant of an estate expectant upon a particular estate, than 
 the interest of him whose right of actual enjoyment is deferred until, 
 but not- after, another's right shall cease, which is so circumscribed 
 that it must positively and inevitably terminate at a stated and 
 certain day? 
 
 With respect to the limitation over, every moment's consideration 
 will confirm the idea that in all cases of legal limitations to vest in 
 possession at a future period, when the person who is to take, and 
 the time at which the possession is to commence, are certain, the 
 effect is the same, whether a preceding estate be expressly created 
 or not ; and that, where the limitation is contingent, then, and then 
 only, the rule as to the descent of the inheritance becomes really 
 apphcable and proper. Accordingly in the case of a devise to the 
 heir of I. S., after the death of I. S., the rule undoubtedly applies; 
 because, until his death, it is uncertain who will be entitled : the 
 testator's heir must therefore remain seised so long as the suspense 
 continues; or in other words, until by such death, a person may be 
 ascertained, capable and authorized to receive the inheritance from 
 him. But under a devise in fee to an existing son of I. S., after the
 
 S4 LAW TRACTS. 
 
 death of I. S., it is apprehended the effect would be otherwise, as 
 there is no uncertainty attached to it ; a clear tenancy jMiir autre vie 
 would, as such, devolve to the testator's heir, but the inheritance 
 would vest in the son of I. S., in the same manner as if a preceding 
 estate for life had been expressly created — he being invested, to all 
 intents and purposes, with *' a fixed right of future possession." 
 
 Again — Should the property devised be of considerable value, it 
 will be perceived that the consequences of such disposition w'ould be 
 very important. For instance, if a testator, calculating upon the 
 time when an infant devisee, aged three years, would attain twenty- 
 one, should devise an estate of 500/. per annum to guch infant in fee, 
 eighteen years after his (the testator's) decease, the property, in- 
 stead of descending to the heir during this eighteen years, would go 
 to the personal representatives ; and a wife, or younger children, or 
 the next of kin, would share the benefits of a disposition presumed 
 by law to have been intended by the testator. 
 
 The fact of the inheritance remaining in the heir must arise from 
 the absolute necessity of it ; when there is no contingency to produce 
 such necessity, the rule casting the inheritance on the heir, must be, 
 and is, altogether inconsistent and incompatible with the true spirit 
 and principles of our laws of tenure, and in short, contrary to law: 
 while, on the other hand, if the application of the rule in question 
 be confined to cases of contingency only, a perfect harmony and 
 consistency with the rest of that system of which it is a component 
 part, will be fully and satisfactorily discerned ; and not without ad- 
 miration at the precision with which, in less enlightened ages, every 
 separate portion, as well as the aggregate of this great and (if the ex- 
 pression may be allowed) beautiful system was described, understood, 
 and reduced to simplicity. 
 
 COMMENTS ON THE FOREGOING OBJECTIONS. 
 
 The preceding remarks contain the substance of a pamphlet 
 entitled *' An Address to the Professors of Law, on certain Impor- 
 tant Points relative to Executory Limitations, by a Noviciate." ^ 
 
 The avowed object of this pamphlet is to overturn doctrines which 
 the author acknowledges ** have long been, and still are not only 
 acquiesced in by the leading authorities, but are sanctioned and 
 acted upon as forming part of the law of the land." After an exordium 
 on the fallacy and absurdity of precedent. Noviciate expresses 
 
 1 H. Butterworth, 1825.
 
 LAW TRACTS. 85 
 
 himself astonished that Mr. Fearne and Mr. Butler, and " a nu- 
 merous list of departed professors (by whose wisdom and labour our 
 libraries are adorned), and an innumerable host of annotators, com- 
 mentators, and revising editors, who from the first publication of 
 law books down to the present day, have unrestrictly concurred in 
 the doctrine in question," should all have been so short sighted as 
 not to have discerned its palpable inconsistency. He is assured, 
 however, that after the developement of his simple view of the case, 
 *' the doctrine will not retain that general credence it has hitherto 
 received;" and so firmly is he convinced of the irresistible cogency 
 of his arguments, that he *' pledges himself to put the merits of his 
 opinions to the test of judicial investigation so soon as his practice 
 shall furnish him with a case adapted to the purpose." It was well 
 " private reasons induced him to conceal his name," or he might have 
 been certain that fev/ opportunities would have offered, in which, at 
 the hazard of his client's ruin, he could have put to the test of 
 judicial investigation, objections so ill-founded as those he wishes to 
 establish. 
 
 A remainder is that portion of interest which on the creation of a 
 particular estate is limited over to another. 2 Lord Coke defines a 
 remainder to be " the residue of an estate in land depending upon 
 a particular estate, and created together with the same;"^ and again, 
 *' Remainder, in legal Latin, is remanere, coming of the Latin word 
 remaneo ; for that it is a remainder or remnant of an estate in lands or 
 tenements, expectant upon a particular estate created together with 
 the same at otie time."^ This imports that both the particular estate 
 and remainder expectant thereupon, must pass out of the grantor at 
 one and the same time. They must be created together — they must 
 both arise by the same means, — by creation, and not by implication or 
 act of law. The particular estate must be created first, and then 
 arises a remnant or remainder. It is impossible that there can be a 
 remainder before something is taken away. The remainder therefore 
 cannot be created first and the particular estate afterwards. But 
 such would be the effect of Noviciate's construction of the above de- 
 vise. His particular estate and remainder are not created at the 
 same time — they do not arise by the same conventional means — they 
 do not pass out of the grantor uno Jlatu — but contrary to all rules, 
 the remainder is created first — is of a different character and com- 
 plexion with the particular estate, and unconnected therewith — the 
 particular estate is not created at all, much less created together with 
 
 2 Watk. Conv. ch. 13. 3 Co. Litt. 59 a. ^ idem, 143 a.
 
 S6 LAW TRACTS. 
 
 the remainder. How then, consistently with legal principles, cftn O's 
 estate be a remainder? 
 
 Remainders are of two kinds, vested or contingent. The criterion 
 of the former is, that it be always ready to fall into possession. If 
 a period can be supposed when the remainder would not fall into 
 possession if the particular estate were determined, then the re* 
 mainder is not vested ; and the leading requisition for a valid con- 
 tingent remainder is, that although such a period may be supposed, 
 yet if the remainder does in fact fall into possession eo instante the 
 particular estate determines, that will be sufficient. Now suppose 
 A, the termor for years in Noviciate's case, to commit a forfeiture of 
 his term before the 1st of January, could the remainder to C fall 
 into possession before the period hmited for its commencement ? 
 Certainly not. It is obvious, therefore, that the limitation to C can 
 neither be a vested nor a contingent remainder. 
 
 Again, the principles of the law of tenure require that there be 
 so close a connexion between the particular estate and remainder, 
 that the former be always capable of merging in the latter, unless 
 some estate intervene. It is clear, however, that such a connexion 
 does not exist in the construction proposed by the above objections ; 
 for supposing A to surrender or assign his term to C, no merger 
 would take place, inasmuch as C has no estate till the 1st of January 
 in which the term can merge, and no acceleration of C's estate would 
 be effected, for it has not yet commenced, and that cannot be acce- 
 lerated which has no existence. 
 
 The remainder is said to be supported by the particular estate, 
 but what support does C's estate derive from A's term for years ? If 
 the particular estate be destroyed, the limitation to C is just as cer- 
 tain of taking effect. It is limited to commence on the 1st of January 
 next, and it will so commence without reference to any other estate. 
 To make it a remainder, it must assume a different form of limita- 
 tion ; in its present shape it cannot consistently be such. A remainder 
 must commence on the determination of the particular estate, not as 
 a separate or independent estate, or in derogation of the prior par- 
 ticular estate. It must also have the capacity in its inception of 
 falling into possession at any given instant of time during the limited 
 existence of the prior estate so as to form with it a continuation of the 
 inheritance. Neither of which qualities does Noviciate'^ remainder 
 possess. Consistently with the law of real property, C has not any 
 estate at all, and consequently no remainder ; his estate is not to 
 commence until the 1st of January, and when it does commence, it is 
 a new, independent, unconnected estate, totally unlike a remainder
 
 LAW TRACTS. 87 
 
 which arises purely on the determination of a prior interest in the 
 land. 
 
 If an heir-at-law endow his mother of land with remainder to a 
 stranger in fee, this has been held to be an invalid remainder for 
 want of a proper privity between the two estates — the widow is in 
 by act of law, the remainder-man by act of the party. * Of just 
 such a character is Noviciate's remainder ; the particular estate is 
 created by one means, and the remainder by another. There is not 
 any privity or connexion between them: the widow does not take 
 qua particular tenant, but as dowress ; so of the heir, or executor, 
 in the case in question. The two estates are not derived from the 
 same fountain, and do not possess the same properties. The 
 dowress derives her estate from her husband, the remainder-man 
 from the heir. In the case in question, the particular tenant is in by 
 operation of law, and the remainder-man by act of the party. If 
 the husband, in Plowden's case, were tenant in tail, and before 
 marriage, had created a mortgage for years without fine, such mort- 
 gage would attach on the particular estate in the hands of the widow, 
 but not on the remainder in the hands of the stranger, who derives 
 his estate in the post^ viz. from a person claiming per formam doni, 
 and paramount the charge ; whereas, every remainder should be 
 derived in the per, and subject to the same charges and incumbrances 
 on the inheritance as the particular estate. The author of the 
 particular estate and remainder must necessarily be one and the 
 same person, otherwise the tenants will take in different degrees, 
 whereby the necessary privity will be destroyed. 
 
 It is laid down by Frowick, J. in 21 H. 7., and acknowledged by 
 subsequent writers, '^ that if a lease for life be made to A, upon 
 condition to be void on the lessee's omission to perform a certain act, 
 and on non-performance, then that it shall remain over to B ; this 
 remainder is bad, because it does not vest during the continuance of 
 the particular estate nor eo imtante that estate determines. There 
 is first a cesser of the lease by virtue of the condition, which can only 
 be taken advantage of by the grantor. The estate must then revert 
 
 6 Plow. Com. 25 b. " It is to be considered and observed," says the learned 
 Serjeant Pollard, in the page cited, " that in every weal-public it is requisite 
 and necessary that the conveyance of things should be certain, for certainty is the 
 mother of repose, and incertainty the mother of contention, which our provident 
 law has ever guarded against, and prevented all occasions of :"— an observation 
 which the litigious stin-ing spirit of Noviciate would do well to weigh maturely 
 before he proceeds to put in practice what he stands pledged to do. 
 
 c See Plow. Com, 25 b; ib. 155} Com. Dig. Estate (B. 14.); I Sand. Uses, 150.
 
 88 LAW TRACTS. 
 
 to the author of the remainder, before it can vest in the remainder- 
 man; and ahhough this process may be the work of a moment, yet 
 that very moment destroys the connexion between the precedent 
 and subsetjuent estate, and is fatal to the remainder. The true 
 expression of this rule is, that the remainder must vest during the 
 continuance of the particular estate, or in the very instant of its de- 
 termination — not in the instant after. How could the remainder in 
 Noviciate's case be amenable to this rule ? If he should contend that 
 the remainder in his case is vested during the continuance of the 
 term, then he must completely alter the sense and meaning of the 
 words of the limitation, which it is presumed no court of law or equity 
 would take upon itself to do. Where indeed would such a despotic 
 principle end, if it were once admitted even in the most trivial 
 degree ? If then the limitation to C is not to vest in estate till after 
 the 31st day of December, that is, from the 1st day of January, it is 
 evident that Frowick's essential requisite for the validity of the re- 
 mainder is not observed. 
 
 If a devise be to the testator's heir-at-law after the decease of A B, 
 the law implies a life estate in A B ; because the limitation to the heir 
 after the particidar period, manifests an intention that he should not 
 take before, otherwise it is a well known rule that the heir takes 
 whatever is not disposed of. This instance affords a much nearer 
 approach to a particular estate and remainder than the one offered by 
 Noviciate, and it has (it is believed) been classed under that head 
 by some writers, though evidently by an improper arrangement. It 
 is the very converse to the case in question. But the learned reader 
 will easily perceive that the heir's estate is not a remainder. 
 
 It may })e further remarked, that C's remainder (if it be a remainder 
 at all) is contingent. It is not to commence presently, but only from 
 the 1st of January. It is not, therefore, vested in C till the arrival of 
 that period, but only after. If then it be not vested, it must neces- 
 sarily be contingent. Noviciate, with some astonishment, will ask, 
 On what event ? He has said there is nothing resembling an event 
 connected with the limitation to C ; that there is nothing conditional 
 or fortuitous about it — that all is stipulated, certain, fixed. He has 
 forgotten, liowever to observe, (and herein some error is imputable 
 to the text) that there is a contingency of person. If C dies before 
 the first of January, the estate will vest, on the arrival of that day, in 
 his heir ; and it is to be particularly noted, that the heir will not take 
 by descent, but by purchase, and paramount all hens and contracts of 
 his ancestor. The estate will not be assets in the hands of the heir, 
 and C cannot assign or transfer it away from him before the day
 
 LAW TRACTS. 89 
 
 arrived. He may bind himself hy estoppel, but not his heirs. If C 
 should become bankrupt, and die, or obtain his certificate in the 
 interval between the date of the conveyance and the stipulated 
 period for vesting the estate, his assignees would not be entitled 
 to the benefit of the devise. There is then, it is submitted, a clear 
 contingency of person, and consequently a contingent remainder, 
 which, as such, must fall to the ground for want of a particular 
 estate of freehold to support it. 
 
 Several other particulars will readily suggest themselves to the 
 learned reader, wherein, consistently with the principles of the law 
 of real property, it is impossible to hold that the limitation to C 
 bears the least resemblance to a remainder-. It is merely necessary 
 to add, on this part of the argument, that the consolation ^ M^hich 
 Noviciate derives from erring in such good company as that of the 
 Author of the " Principles of Conveyancing," entirely fails him ; for 
 that gentleman expressly lays it down as the second essential rule to 
 the validity of remainders, " that the particular estate and the re- 
 mainder must be created by the same deed" laying particular 
 emphasis on this latter part of the rule, as much as to say, that 
 though this rule may appear trivial, and the reason of it not to be 
 at first sight apprehended, yet if it be not identically s complied 
 with, the remainder will be bad. 
 
 Then as to the particular estate : The law says, as we shall pre- 
 sently see, that an estate of freehold vests in the heir. Noviciate 
 contends, that it would be more consistent with principle that the 
 executor should take a term. The executor, however, be it observed , 
 takes by the will. He takes all the personal estate in the testator at 
 the time of his death. But how can a term created de novo by the 
 Will of its author (which Will begins not to operate until after death,) 
 
 7 " For the imperfect manner in wliich he (Noviciate) lias performed his under- 
 taking, the pnblic are entitled to an apology; for the object of it, i\Ir. Watkins 
 is alike (if at all) censurable with him : that gentleman has supplied the text, 
 and the author (of the pamphlet) has enlarged upon it without fear. — For v\ 
 
 WOULD BE CONFOUNDING OF IDEAS, IT WOULD BE AN ABUSE OF LANGUAGE," 
 
 &c. p. 23. — Read Plowden and Palmer, Noviciate, in preference to such mawkish 
 effusions : and guard against the contraction of that wrangling, } eevish dis- 
 positicai, which your worthy prototype manifested on all occasions^mbibed 
 perhaps from his vicinity to the French Revolution, and the disappointmentij 
 he experienced in his early career. 
 
 8 The subterfuge respecting the deed creating, and deed exercising, a power can- 
 not avail. Both those instruments form in reality but one instrument, as the Isq-s^ 
 and release, fine and declaration of uses, &c.
 
 90 LAW TRACTS. 
 
 be said to be in the testator ? Such a term is created by the testator^ 
 but it can never be said to be hi him. It is submitted, therefore, that 
 the estate cannot devolve upon his executor : it is not a term ah'eady 
 created, it is not personal estate. The law has provided for casual- 
 ties of this nature. The first principle is that the estate shall belong 
 to the heir, subject to the owner's power of devising it away to 
 another person. If that power be partially exercised, all that is not 
 disposed of devolves on the heir. Another rule declares, that the 
 freehold shall not be in abeyance. If then the devise he for any less 
 estate than a fee, the heir who takes, subject to that less estate, must 
 necessarily take the freehold ; and to provide for the contingency of 
 his death before the next portion of the estate vests, he must neces- 
 sarily take an estate of inheritance, for if he were not so to take, the 
 freehold would still be liable to be in abeyance. To prevent this, 
 the law declares that it shall descend to the heir's heir. The heir 
 therefore has a freehold estate of inheritance ; he may alien or 
 devise it, and it will be assets in the hands of his heir, if not 
 otherwise disposed of. 
 
 With this impression, it is extremely difficult to understand 
 how a term can result to A in the case of a conveyance to B, to 
 the use of C in fee, from the 1st of January next. One property 
 of a term is, that it have a reversion vested in some person during 
 all the continuance of the term. This reversion cannot vest in C, 
 because he is not the grantor of the term, nor has he indeed any 
 estate till the term is determined. To whom then is the termor to 
 render his service ? — To the grantor ? Certainly not ; for he himself 
 has the term which would instantly merge in the reversion. To sueh 
 a labyrinth of difficulties is Noviciate's thesis reduced ! With all 
 these anomalies can it be upheld, — against doctrine too, which 
 it is now time to show is free from all objection, and compatible 
 with every other rule of the law of real property ? 
 
 A conditional limitation is so called from its uniting the properties 
 of a condition and a limitation. Like a condition it destroys the 
 preceding estate — like a limitation it creates a new one. A remain- 
 der commences when the particular estate determines, being, as it 
 were, a continuance of the same estate, a part of the same whole. 
 A conditional limitation is not a continuance of the estate first 
 limited, but is entirely a different and separate estate. It is not to 
 connnence on the determination of the first, but the first is to deter- 
 mine when the latter commences. It is the commencement of the 
 latter which rescinds and destroys the former ; and not the ceasing 
 of the former which gives existence to the estate. The particular
 
 LAW TRACTS. 91 
 
 estate and remainder, are in fact, as the very terms imply, but one 
 and the same estate. The estate first appointed, and the conditional 
 limitations, confer separate and distinct interests. ^ — Such is the defi- 
 nition of a conditional limitation ; and can any thing be more 
 appropriate to the case in question than this description ? If it were 
 measured for the purpose, it could not more aptly fit the estate 
 which G takes under the conveyance. 
 
 The event upon which an estate depends, and the limitation of 
 that estate, are as totally distinct as two things can possibly bo. 
 Yet Noviciate has blended them together, and made the limitation 
 depend entirely upon the event. What makes a shifting use ? Not 
 the event, but the peculiarity of the limitation. A springing use is a 
 future use limited to arise M'ithout any preceding limitation. '** Such, 
 exactly, is the use limited to C. There is no preceding limitation. 
 In cases of this nature the use results for the intermediate period.'' 
 When the period arrives for the transmutation of the estate, the 
 future use arises, and defeats the use resulted. Thus it partakes, in 
 part, of the character of the conditional limitation. The event, how- 
 ever, is perfectly immaterial to the creation of the use, — whether the 
 use is to spring up and shift at a time certain, or at a time to be 
 ascertained and rendered certain by the happening of a collateral 
 event, is a matter entirely beside the limitation of the estate. The 
 aqueduct is complete on the execution of the conveyance. The words 
 marking the time when the hatch is to be drawn up, and the estate 
 passed from one person to another, are wholly irrelevant to the cha- 
 racter of the estate so passed. 
 
 An essential ingredient in an executory devise is, that it really have 
 no particular estate (in the strict sense of that word) to precede it. 
 By this means, says Noviciate's oracle, '' a fee riiay be limited to 
 commence in future ; as, till such fee take effect, the inheritcmce shall 
 descend to the right heirs of the testator." '^ A devise therefore to C, 
 from the 1st of January, has the effect of throwing the inheritance 
 on the testator's heir till the arrival of that period, and not a term on 
 his executor. Have Noviciate's lucubrations extended beyond the 
 elementary work of his captious champion ? That gentleman, who 
 had probably spent as many days, as his intelligent pupil minutes, in 
 the investigation of the principles on which these questions de- 
 
 9 1 Fearne, 9, 414. Sand. n. 182. Watk. Elem. ch. xv. 
 
 10 2 Cru. Dig. Tit. 16. c. 5. s. 20. 
 
 11 Mutton's Ca. Dyer, 274. Shaw, P. C. 137- 
 
 1^ Watk. Elem. ch. xiv. Fearne, 537- Doe v. Timins, 1 Bam. & ^Vld. 530.
 
 92 LAW TRACTS. 
 
 pend, declares his opinion to be, that the inheritance does descend to 
 the testator's heir till the first of January. 
 
 Enough has been suid to raise a doubt, at least, whether the 
 objections detailed in the preceding part of this tract can be main- 
 tained on principle. A few adjudications will be added, to show 
 that the issue of a judicial investigation of their merits is beyond all 
 doubt. 
 
 The first is Pay's case,'^ where there was a devise to J. S. for 
 twenty years to commence at Michaelmas next after the testator's 
 death, with remainder to one Ferral in fee. The testator died before 
 Michaelmas. At Michaelmas J. S. entered, and the term expired. 
 Whereupon Ferral entered, and this action was commenced by the 
 testator's heir, to try the question whether the remainder to Ferral was 
 good. It was argued that it was not good, for that it did not vest in 
 Ferral immediately on the testator's death. It was expressly limited 
 not to begin until the particular estate commenced, which was not 
 till after Michaelmas, and the freehold, it was contended, could not 
 in the mean time be in abeyance or expectancy. But all the court 
 held, that it might very well expect, for the freehold in the mean 
 time should descend to the heir and vest in him. Wherefore, 
 without argument [on the other side], it was adjudged accordingly 
 tliat the remainder was good. 
 
 It will be observed, that the court made use of the expression 
 remainder, and adjudged that it was good. Hence Noviciate infers 
 that the court considered the estate of Ferral during the interval 
 between the testator's death and the succeeding Michaelmas, as 
 vested ; but it should be remarked, that the freehold was declared 
 to be in the heir, which could not have been if the remainder was 
 vested ; moreover if Noviciate's theory be right, a term of years to 
 support the two remainders should have vested in the testator's 
 executor till the commencement of J. S.'s term, but it was holden 
 otherwise. 
 
 The slightest inspection of the above case will show, that the word 
 remainder, was used throughout with reference to the preceding 
 estate for years; that estate had determined, and the remainder 
 (meaning the remainder on that particular estate for years) had then 
 fallen into possession. The executory devise happened twenty years 
 before, and operated to shift the fee from the testator's heir to Ferral 
 in fee. On that event Ferral became seised of an immediate estate of 
 freehold, and (as one and the same estate) of a vested remainder in fee 
 
 13 Pay's case, 1601. Cro. Eliz. 878. Noy, 43.
 
 LAW TRACTS. S3 
 
 Expectant on the determination of the term for years. The question 
 was, whether that remainder, qua remainder, was good. That 
 question involved a prior one, whether the whole fee, consisting of a 
 term and remainder, could be devised on a day to come. The court 
 lield that it could, not by way of remainder, for it was unpreceded 
 by any connected estate of freehold, but by way of executory devise 
 in order that the will of the testator might not be frustrated. The 
 court said, it might well expect till Michaelmas, in other words, that 
 it was (like every other executory devise, until it becomes an estate) 
 a bare expectancy or possibility — it was not a vested executed 
 remainder, but an executory expectant devise. They must either 
 have so interpreted the Will or have declared it void ; but another 
 rule prevented them from resorting to that alternative, inasmuch as 
 there was no valid objection to it as an expecting executory devise. 
 
 Pay's case is supposed by Noviciate to be the main support of the 
 doctrine in question. What does he think, then, of the dictum of 
 tlie Lord Chief Justice of C. B. in Clarke v. Smith ? '^ His Lordship 
 there said, that if a man devise to A, six months after his de- 
 cease, in the meantime the land descends to the testator's heir ; 
 that in all cases of executory devises the estate descends till the con- 
 tingencies happen ; and that it would be a violent construction to 
 make the heir a purchaser. — On the authority of these positions the 
 court held, that inasmuch as the heir in the case in question, was in 
 by descent, notwithstanding the devise to him charged with a gross 
 sum, and that descent being ex parte maternd, the plaintiffs (who 
 were the testator's heirs-at-law on the part of his mother) were 
 entitled to the estate in preference to the defendant, who was his 
 heir-at-law on the part of the father. 
 
 The next case is that of Gore v. Gore,^^ where the devise was to 
 trustees for 500 years, in trust to secure an annuity of 50/. given to 
 the testator's eldest son Thomas Gore, and after the determination 
 of the term, to the Jirst son of his eldest son (Thomas) in tail male, 
 with remainder to his second son in tail male, &c. The testator 
 died, leaving his eldest son a bachelor, who afterwards married and 
 had a son. The question was, whether the devise to the grandson 
 was valid. The Judges (Pratt, Powis, Eyre, and Aland) certified 
 that they had heard counsel, and were of opinion, that the devise 
 to the first son of Thomas Gore was void, because he (the grand- 
 son) could not take by way of remainder, for that there was no 
 freehold to support it, nor could he take by way of executory 
 
 14 1 Lutw. 798. 15 Gore v. Gore, 2 Mod. 28. 10 ib. 603.
 
 94' LAW TRACTS, 
 
 devise, because it was too remote, viz. after a term of five hundf€!cl 
 years. 
 
 In the latter point the Judges seem to have been in error — in an 
 equitable point of view at least; for the term is not regarded in 
 equity as ever preventing the vesting of estates where they can vest, 
 and being only a security for a sum of money, the estates in remain- 
 der, subject to that charge, may, if vested, be immediately ahened 
 as well as the term assigned. Ten years after this certificate, (Lords 
 Macclesfield, Talbot, and King, Chans, having in the interim all 
 all expressed their doubts as to the tenability of the reason why the 
 will might not take effect by way of executory devise) a second case 
 was sent to the Court of B. R. and the Judges there were of opinion 
 that the devise over was not too remote, for that it must in all events 
 have happened one way or the other, upon the death of Thomas 
 Gore, whether he should have a son or not; and accordingly 
 they certified that the devise to the first son of Thomas Gore was 
 good by way of executory devise, the freehold descending and 
 vesting in the testator's heir-at-law until the birth of a son. 
 
 The construction of this devise therefore was, to A for 500 years, 
 reversion to the testator's heir in fee, with executory devise over, 
 1st. In favour of a grandson in tail male immediately on his birth, 
 with divers remainders over : 2d. In favour of the testator's second 
 son, in tail, &c. in the event of his eldest son dying without having 
 had a son. 
 
 In another case ^^ a testator devised, that if his wife should, in four 
 years, pay his daughters 550/., then his lands should go to her for life, 
 with remainder to his eldest son in tail, with remainder over. Lord 
 Hardwicke held, that this was an executory devise by way of con- 
 ditional Ihnitation ; that the freehold descended to the son as heir- 
 at-law to the testator till the four years were elapsed or the testator's 
 wife had performed the condition ; that it so descended to the son 
 as part of the inheritance undisposed of; and that where an estate 
 vests by descent, it cannot afterwards be divested. ''' — Noviciate will 
 perhaps object that these cases depend on events; whereas the 
 devise over in his case is sure to happen. But he should be told 
 that the reasons which support a vested remainder in his case, will 
 equally well support a contingent remainder in the cases here cited. 
 Lord Hardwicke hov/ever declared the reason why the wife in the 
 instance before him took an executory devise, was that she could not 
 
 16 Ilayward v. Stillingfleet, 1 Atk. 422. 
 
 1" This latter position requires considerable qualification.
 
 LAW TRACTS. 95 
 
 take a contingent remainder for want of a particular estate of free- 
 hold to support it, — though his Lordship might have holdeii that 
 the freehold was in the heir, and that such freehold was a sufficient 
 support for the remainder. 
 
 Again, (the tiresome citation of authorities must be borne) — the 
 books furnish us with this further instance of the application of the 
 doctrine in question. A testator devised to A for hfe, with remainder 
 to an unborn son of C in tail, with remainders over. A died in the 
 testator's hfetime, and it was held that the estate descended to the 
 testator's heir-at-law till the birth of a son of C, or his death without 
 a son ;*^ Lord Talbot said, that if there had not been any express 
 estate given to A for life, it was clear that the devise to the son of 
 C would take effect by way of executory devise, there being no ante- 
 cedent estate to support it, and consequently not able to enure as a 
 remainder. Then should the accident of A's death after the will 
 revoke the whole will ? The method of courts was not to set aside 
 the intent because it could not take eifect so fully as the testator 
 desired ; the rule was, to let it work as far as it could ; so here, if the 
 son of C were allowed to take an executory devise, the intent would 
 be served, but if he were holden to take in remainder it would be 
 quite destroyed, there being no precedent estate to support it as a 
 remainder. The very being of executory devises showed a strong 
 inchnation both in the courts of law and equity to support the tes- 
 tator's intent, and though they were not of ancient date, they were 
 of the same nature with springing uses, which were as old as uses 
 themselves. Whatever interest in or profits out of real estate, were 
 undisposed of by a testator, (were his intent that the heir should 
 take or not,) the law threw upon the heir, since the heir takes not 
 by the will or intent of the testator, hut by operation of law, for 
 somebody must take, and 7io?ie being appointed by the testator, the 
 estate descends to the heir. 
 
 Similar law was propounded and acted on in Taylor v. Biddal, '^ 
 also in Bullock v. Stones. -•' It was there, as in the last case, held, 
 that it makes no difference as to the above construction, whether 
 the gift be of legal or equitable estates, the rule being cequitas 
 sequitur legem. 
 
 From these cases and observations, it is submitted that Noviciate's 
 idea of a remainder cannot be maintained, for the best of all possible 
 reasons, the want of a connected particular estate to support it. If 
 
 18 Hopkins V. Hopkins, Ca. T. Talb. 44. 1 Ves. 268. 1 Atk. 511. 
 
 19 2 Mod. 292. '^^ 2 Ves. 251.
 
 9G LAW TRACTS. 
 
 a freehold estate be created by one deed, and a limitation amounting' 
 in fact to a remainder be made by another, these estates never can 
 stand in the relation of particular estate and remainder. The remain- 
 der in this instance must necessarily be created out of the reversion, 
 and cannot be so connected with the preceding estate as to be de- 
 pendent upon it. As to the notion of an implied connexion between 
 the particular estate and remainder, several instances may be 
 adduced in which such a doctrine might have been inferred ; but 
 the courts have uniformly decided that the particular estate and 
 remainder must be connected by the operation of the same instru- 
 ment and both derive effect from the same source. 
 
 With respect to the whole fee descending to the heir, — it has 
 been repeatedly determined that it cannot vest in the executory de- 
 visee, it must therefoi-e descend to the heir ; for one and the same 
 estate cannot be at one and the same time entirely in two different 
 persons, viz. in the heir and in the devisee both ; and the best evi- 
 dence that the freehold and inheritance is in the heir and out of the 
 devisee, is, that the devisee cannot, before the shifting of the 
 estate, alien or assign his interest ; whereas the heir may alien or 
 assign, subject to the vesting of the executory devise. It is also 
 observable, that if a term be in the heir it must arise by implication ; 
 now an estate cannot arise to the heir by implication. 
 
 Is it possible, then, that Noviciate, on a principle unrecognized by 
 any other writer — on reasoning which is in direct opposition to all 
 received notions on the subject — and in open defiance of a long 
 unbroken chain of sound authority, — shall be successful in his at- 
 tempt to overturn doctrines so well settled and fixed as those 
 ■which he has pledged himself to impugn? 
 
 On the whole, it is submitted that the text of this inquiry contains 
 a sound expression of the law on which it treats. 
 
 THE END OF No. III.
 
 LAW TRACTS. 
 
 No. IV. 
 
 ON THE 
 
 MORTGAGE OF TOLLS, 
 
 UNDER TURNPIKE ROAD ACTS. 
 
 The making and maintaining a turnpike road must obviously re- 
 quire a great outlay of capital. To meet the expenditure, the 
 trustees are empowered to raise money on mortgage, and they usually 
 raise it in small sums, granting the lender such proportion of the 
 tolls as the sum advanced bears to the whole money borrovred till 
 the sum lent be discharged. This plan has been adopted in the 
 General Turnpike Road Act, 3 Geo. 4. c. 126, (1823) ; but its policy, 
 and even legality, has been lately very seriously questioned. Before 
 we enter into the consideration of this question, it will be necessary 
 to advert, somewhat at length, to two prior adjudications on the 
 subject, which are acknowledged by the framer of the bill to have 
 been the foundation of the clauses in view. 
 
 The first case came on in the King's Bench in the year 1787, on 
 the 11 Geo. 3, c. 87, for repairing and widening the road from 
 CheacUe to Leek, Stafford. By this act the trustees are authorized 
 to erect turnpikes and toll-houses: and the right and property 
 thei'eof, and all the materials of the same, are thereby vested in 
 them : and seven or more of them ar^ enabled by writing under their 
 hands and seals to lease the tolls arising from the road : And they 
 are further authorized to take up at interest any sum upon the credit 
 of the said tolls, and to assign over and convey the said respective 
 tolls to any person who should advance their money thereon. It is
 
 98 LAW TRACTS. 
 
 further enacted, that no preference should be given to the persons 
 lending money on the credit of the said tolls in respect of the priority 
 of advancing such sums; but that all persons to whom such respec- 
 tive morttratres or assiainnents should be made, should be in their 
 several proportions, creditors on the said respective tolls in equal de- 
 gree one with another. " 
 It will be observed that the act authorizes the trustees to mort- 
 gage the tolls only, and not the toll-houses and turnpikes. The 
 more natural remedy for the recovery of tolls would appear to be an 
 action of ejectment for obtaining possession of the toll-houses and 
 turnpikes ; but this would be a prospective remedy merely, and for 
 tolls already received, an action for money had and received should 
 seem to be the only proper resource. It may indeed be fairly 
 questioned, whether the toll-houses and turnpikes are not so far 
 incident to the tolls (barring the awkwardness of a corporeal here- 
 ditament being appurtenant to an incorporeal one), that a power 
 authorizing a mortgage of the tolls should warrant a mortgage of the 
 best incidental means of recovering them ; viz. the toll-houses and 
 turnpikes. This question arose on the local act above recited. 
 The trustees having occasion to raise a sum of money, advertised 
 accordingly, and the lessors of the plaintiff having answered the ad- 
 vertisement, mortgages were executed to them of the tolls, and also 
 of the toll-houses and toll gates by a sufficient number of the trustees. 
 The interest on the mortgages becoming in arrear, the plaintiffs com- 
 menced ejectments against the trustees and toll keepers ; and the 
 question reserved at the assizes was, whether such ejectment would 
 lie. Ashurst, J. in banco delivered the opinion of the Court as 
 follows : — 
 
 *' It is clear that the trustees under this act of parliament had no 
 power to mortgage the toll-houses or the turnpike gates. The act 
 expressly gives the trustees power to mortgage the tolls ; but the 
 reason why it docs not give them a farther power is, because no cre- 
 ditor is to have a preference. — Now if any creditor had a power to 
 enter and take possession of the toll gates, he would gain a priority 
 which the act has denied. And it is very fit that this should not be 
 taken out of the hands of the trustees ; because they are trustees for 
 all the creditors, and were considered hij the legislature as the most 
 proper persons to have the ivhole management of every thing to be 
 done in pursuance of the act. It was foreseen that the whole sum 
 wanted would not be advanced by any one person ; and therefore, for 
 the encouragement and security of all persons who were willing to 
 advance money, it was necessary that the collection of the tolls should
 
 LAW TRACTS. 99 
 
 remain with the trustees. As then the trustees had no power to 
 mortgage the toll-houses, another question is, whether they are 
 estopped to say so ? In general the party granting is estopped by 
 his deed to say he had no interest : but that general principle does 
 not apply to this case, where the trustees were not actino- for their 
 own benefit, but for the benefit of the public; and it would be 
 hard that other creditors who are not parties to the deed, should 
 lose the benefit which the act has given them. Besides, there is a 
 still farther reason why the trustees should not be estopped ; for this 
 is a pubhc act of parliament, and the court are bound to take notice 
 that the trustees under this act had no power to mortgage the toll- 
 houses. This deed, therefore, cannot operate in direct opposition 
 to an act of parliament which negatives the estoppel." The rule 
 nisi was consequently discharged. ^ 
 
 The other case arose on the act 17 Geo. 3, for repairing and 
 widening the road from Halifax to Sheffield. The act was similar to 
 the last, except that it enabled the trustees to mortgage the toll- 
 houses and pikes. In consideration of 100/. paid by the lessor of 
 the plaintiff to the treasurer of the road, the trustees according to 
 the direction of the statute, granted, bargained, sold, and demised to 
 the lessor of the plaintiff, such proportion of the tolls arising from 
 the road and toll-houses for collecting the same, as the said sum of 
 100/. should bear to the whole sum due and owing on the credit 
 thereof: — to be holden from the 5th of April 1779, during the con- 
 tinuance of the above statute, till the said sum of 100/. with interest 
 at 5 per cent, should be paid. Four years interest being in arrear, the 
 lessor of the plaintiff commenced an action of ejectment against the 
 defendant, to whom the trustees had let the tolls, toll-houses, and 
 turnpikes, at the rent of 300/. a year. The counsel for the defen- 
 dant contended, that the ejectment could not be supported, being 
 contrary to the policy of the act ; for that in p. 745, it was directed 
 that all persons to whom any mortgage should be made under the 
 act, should in proportion to the sum mentioned in the mortgage be 
 creditors on the tolls in equal degree one with another, and should 
 have no preference in respect of the priority of money advanced ; 
 whereas, if any one mortgagee were allowed to recover, he would 
 thereby gain a priority denied him by the act : but the mortgagee 
 would not be without remedy, for the trustees, like other public 
 officers, were liable to be punished for any misapplication of the 
 money intrusted to them. — Their Lordships, however, were of a 
 
 1 Fail-title v. Gilbert, 2T. R. 1/1.
 
 KX) LAW TRACTS. 
 
 different opinion, as will appear by the following extracts of the 
 judgment of the court of C. P., delivered hy Lord Eldon, C. J. : — 
 " The case of Fairtitle r. Gilbert admits all tliat is necessary for 
 the plaintiff to contend. The reason why the creditor in that case 
 could not maintahi his ejectment was, because, if allowed, he would 
 have obtained a priority which the act denied. But why should he 
 have gained a priority ? Because the mortgage was of all the tolls, 
 not of any proportion, but when a proportion only is mortgaged no 
 privity will be gained, since the mortgagee will become the bailifi' for 
 the rest of tlie creditors as to all [the tolls] except his own proportion. 
 It seems to have been thought, that if a power had been given to 
 mortgage the toll-gates [in the Stafford Act] a difficulty would have 
 arisen, by giving a preference, which was contrary to the intention 
 of the act. But it does not appear to me that this difficulty would 
 have arisen even if such a power had been given. For I should have 
 been inclined to hold, that whatever were the form of the demise, it 
 could only operate so as to effectuate the act; that is, so that every 
 other creditor should receive his due proportion, for which purpose the 
 mortgagee must have stood in the situation of bailiff or trustee for all 
 the other creditors. The act in this case, however, seems calculated 
 to meet the very difficulty which the court there felt : for this act 
 empowers the trustees * to demise or mortgage the said tolls or any 
 jiart or parts thereof, and the turnpikes and toll-houses for collecting 
 the same.' If any one person advanced the whole sum, then the 
 whole was to be mortgaged ; if several, then the form of the 
 mortifajre inserted in the act shows, that each ci'editor was to have in 
 mortgage, only such proportion of the tolls as the sum advanced by 
 him should bear to the whole sum advanced. ^ All the difficulty 
 therefore, suggested in the argument of the case in the King's Bench, 
 is obviated by this act. There is a great difference between a de- 
 mise of tolls and of toll-houses. The former only gives a personal 
 interest, in respect of which an action for money had and received 
 may be maintained, the latter gives an interest in land which is 
 within the Statute of Mortmain. The trustees in this case have exe- 
 cuted an indenture under the act, the effect of which was, to trans- 
 fer the title vested in them. Being authorized to grant a real in- 
 terest in the toll-houses, all the consequences of law must attach 
 upon that interest, unless excluded by the act. The money ad- 
 vanced by the mortgagee would be very ill secured if his only 
 
 - These words are inserted in the General Act hereafter noticed. That act 
 being prepared on the foundation of this case, the judgment of my Lord Eldun- 
 above cited, may be read as an explanatory comment on the act.
 
 LAW TRACTS. 101 
 
 remedy was either an application to the vindictive power of the 
 Court of King's Bench, or a suit in Chancery, in which all the 
 other thirty-five mortgagees must be made parties. With respect to- 
 the action for money had and received, it would be a sufficient de^ 
 fence for the trustees to show that they had distributed all the money 
 received according to the provisions of the act." Judgment was 
 accordingly given for the plaintiff. ^ 
 
 A mortgage of a portion of the tolls equivalent to the money lent,^ 
 . is manifestly a much more sensible and consistent security than a 
 mortgage of the whole tolls to each successive lender, when perhaps 
 there may be some hundreds. Passing by the mathematical incon- 
 gruity of the same individual containing one hundred wholes, — 
 the mortgagees (supposing each mortgage to be of the entirety) 
 Would acquire that very priority, which the legislature throughout 
 all the acts on this subject has shown such a solicitude to prevent. 
 The second mortgage would be in fact a mortgage of the equity of 
 redemption on the first, and so on to the end, which necessarily be- 
 gets the relation of prior and subsequent incumbrancer ; whereas, 
 the economy of legislation on this subject, requires that all the mort- 
 gages should be in equal degree, and that neither one should have 
 preference to the other. The mortgage is therefore properly of a 
 portion of the tolls, instead of the whole. 
 
 The usual mode of mortgaging at the present day is by way of 
 condition precedent ; but there is a species of security known by the 
 name of a Welch mortgage, which is effected by means of a condition 
 subsequent. An estate is conveyed to the mortgagee to commence 
 immediately, and to continue in him until he shall have been paid his 
 principal interest and costs out of the rents and profits — when he 
 has been so paid, his estate to cease. The mvum vadiuyn of the 
 ancients resembled this species of security, and the adopted form of 
 a mortgage of turnpike-tolls is of a similar character. It should be 
 observed, that the road commissioners themselves have no interest in 
 the tolls ; they have merely power to grant them to persons advan- 
 cing money to the treasurer, but have no share in the unappropri- 
 ated profits. The commissioners do not covenant to repay the 
 money borrowed, nor are they personally bound to make good any 
 loss occasioned by a failure of the road. Neither as a corporate 
 body are they responsible to the mortgagee for payment of the 
 money. No funds are vested in them, but only the management of 
 the trust. 
 
 3 Doe dcm. Banks v. Booth, 2 Boa. & Pul. 219.
 
 102 LAW TRACTS. 
 
 Hence they could not stipulate to pay the money at a certain day, 
 when neither aggregately, nor individually do they mean to pay the 
 money at all ; and, to say generally, that the money borrowed shall be 
 repaid on a certain day, without saying by whom, approaches very 
 near, if it be not actually, that indefinite contract which is void in law 
 for uncertainty, particularly when it is known that no such person is 
 in contemplation who either intends or can be compelled to pay the 
 money on the day mentioned or at any time after. The mortgage is a 
 transferable and negotiable security, partaking but very slenderly of 
 the character of a common mortgage. There is no foreclosure, no 
 mortgagor, — no priority of one incumbrancer to another, no tacking, 
 no eqxnty of redemption, for the mortgage is always cognizable in a 
 court of law. The mortgagee never can call in his money in one sum, 
 but must wait for the leisurely perception of an aliquot part of the 
 profits. Like stock in the pubHc funds he can sell and transfer and 
 receive interest, but he cannot at his own pleasure demand or recover 
 payment of the principal. 
 
 With property of this description, then, it is submitted that the 
 ordinary mode of mortgaging by way of condition precedent, is 
 entirely incompatible. Such has been the uniform opinion of the 
 legislature, manifested by the standing form of mortgage, introduced 
 into most local turnpike-road acts, and such is the form adopted by 
 the General Turnpike-road Act ; to which it is now time to refer. 
 
 3 Geo. 4. cap. 126. 6th August 1822. — " An Act to amend the general 
 laws now in being, for regulating turnpike roads in that part of Great Britain 
 called England." By sec. 4. it is declared that this act shall extend to all 
 local acts for making and repairing turnpike roads. 
 
 Sect. 81. — Tuner to borrow money, — -form of mortgage and assignment. 
 And be it further enacted, that it shall be lawful for the trustees or commis- 
 sioners of any turnpike road, to borrow and take up at interest, on the credit 
 of the tolls arising on such road, such sum or sums of money as they shall from 
 time to time respectively think proper, and to demise and mortgage the tolls 
 on such road, or any part or parts thereof, and the turnpikes and toll-houses 
 for collecting the same, (the costs and charges of which mortgages shall be 
 paid out of the tolls) as a security to any person or persons or their trustees, 
 who shall advance svich sum or sums of money, which mortgages shall be in 
 the words or to the effect following (that is to say,) 
 
 " By virtue of an act passed in the year of the reign of 
 
 " intituled [^here set forth the title of this actfl We, whose hands and seals are 
 " hereunto subscribed and set, being of the trustees [or commis- 
 
 " sioners] for putting into execution an act, passed in the year of 
 
 •* the reign of intituled, [here set forth the title of the act
 
 LAW TRACTS. 103 
 
 " under rvh'ich the trustees or commissioners borrowing the money and (rranting 
 " the mortgage shall act,'\ in consideration of the sum of sterling 
 
 " advanced and paid by A.B. of to the treasurer of the said 
 
 " trustees [or commissioners,] do hereby grant and assign imto the said A. B. 
 " and his executors, administrators, and assigns, such proportion of the 
 " tolls arising and to arise on the said turnpike road, and the toll-gates and 
 " toll-houses erected or to be erected for collecting the same, as the said sum 
 " of doth or shall bear to the whole sum now or hereafter to be- 
 
 " come due and owing on the security thereof: To have, hold, receive, and 
 " take the said proportion of the said tolls, toll-gates, toll-houses, and pre- 
 " mises, with the appurtenances, unto the said A. B. and his executors, ad- 
 " ministrators, and assigns, for and during the residue of the term for which 
 " the said tolls are granted by the said last-mentioned act, unless the said 
 ** sum of with interest after the rate of per centum per annum, 
 
 " shall be sooner repaid and satisfied. 
 
 " Given under our hands this day of ." 
 
 And copies of all such mortgages shall be entered in a book or books to 
 be kept for that purpose by the clerk or treasurer to the said trustees or com- 
 missioners, for which entry, such clerk shall be paid the sum of five shillings 
 and no more, out of the tolls payable on such road, and which said book or 
 books, shall and may at all seasonable times be perused and inspected with- 
 out fee or reward ; and it shall and may be lawful for all persons respectively, 
 to whom any mortgage shall be made as aforesaid, or who shall be from time 
 to time entitled to the money thereby secured, to assign or transfer his or their 
 right, title, and interest, in and to such mortgage, and the principal money 
 and interest thereby secured, to any other person or persons whomsoever ; 
 which assignment or transfer may be made in the following words, or words 
 to the like effect, to be indorsed on such mortgage security, or to be under- 
 written, or thereunto annexed, and signed in the presence of, and attested 
 by one or more credible witness or witnesses (that is to say) : — 
 
 " I, A. B. \or I, C. D. assignee, executor, or administrator of ^. B. as the 
 " case may happen,^ do hereby assign and transfer this mortgage security, 
 " with all my right and title to the principal money thereby secured, and all 
 " interest now due, and hereafter to grow due upon the same, unto E. F. 
 " his or her executors, administrators and assigns. Dated this 
 " day of one thousand eight hundred and 
 
 " Witness G. H. (Signed) A. B. or C. D." 
 
 Which transfer shall be produced and notified to the clerk or treasurer of 
 the said trustees or commissioners, within two calendar months next after 
 the day of the date thereof, who shall enter the same in the said book or 
 books, for which entry, the said clerk or treasurer shall be paid the sum of 
 five shillings and no more ; and such transfer shall then entitle such assignee, 
 his executors, administrators and assigns to the full benefit of such mortgage
 
 104' LAW TRACTS. 
 
 aecurity ; and every such assignee may, in like manner, assign or transfer the 
 same, and so toties quoties ; and it shall not be in the power of any person or 
 persons (except the person or persons to whom the same sliall be last trans- 
 ferred, his, her, or their respective executors or administrators) to release, 
 discharge or make void the original mortgage secm'ity or the monies due 
 thereon, or any part thereof; and all persons to whom any such mortgage 
 or transfer shall be made as aforesaid, shall, in proportion to the sum or sums 
 of money thereby secured, be creditors on the tolls by such act granted, and 
 on the said toll-gates and toll-houses, in equal degree one with another, or in 
 such order as shall be agreed upon and stipulated by the said trustees or 
 commissioners at the time of the advance of their respective shares. 
 
 Sec. 49. — An action of ejectment may he supported by one mortgagee. 
 
 And be it further enacted, that if any mortgagee or mortgagees of any tolls, 
 toll-gates, bars, chains, toll-houses, and buildings on any turnpike-road, 
 shall seek to obtain the possession of the said toll-gates, bars, chains, toll- 
 houses, and buildings, in order to pay himself, herself, or themselves the 
 principal money and interest, or any part thereof due to him, her, or them ; 
 it shall be competent for him, her, or them, as lessor or lessors of the plaintiff, 
 and upon his, her, or their demise only, and without uniting in such demise, 
 the other mortgagees of the said tolls and premises, to obtain such posses- 
 sion ; but such person or persons who shall obtain the possession thereof, 
 shall not apply the tolls which may consequently be received by him, her, 
 or them, to his, her or their own exclusive use and benefit, but to and for the 
 use and benefit of all the mortgagees of the said premises, j)ciri passu, and in 
 proportion to the several sums which may be due to them as such mortgagees. 
 
 Sec. 47. — Mortgagees in possession of the tolls to account. 
 
 And be it farther enacted, that all and every mortgagee and mortgagees 
 that hath or have taken and been in possession, or shall hereafter take or be 
 in possession of any toll-gate or bar, set up or erected on any turnpike 
 road, or of any lands or tenements, the rents and profits whereof are appro- 
 priated to the repairs of any part of any turnpike road, shall, within twenty- 
 one days afterhe, she, or they shall have received notice in writing from the 
 trustees or commissioners of such turnpike road, render an exact account in 
 writing to such trustees or commissioners, or to such person as they shall ap- 
 point, of all monies received by such mortgagee or mortgagees, or by any 
 other person or persons, for his, her, or their use and benefit, or by his, her, 
 or their authority, at such toll-gate or bar or otherwise, and what he, she, or 
 they have expended in keeping or repairing the same ; and in case he, she, or 
 they shall neglect to render such account when required as aforesaid, he, she, 
 or they shall severally forfeit and pay to the said trustees or commissioners, 
 for every refusal, neglect, or omission, the sum of fifty pounds, to be applied to 
 the use of the road on which such toll-gate or bar shall be erected.
 
 LAW TRACTS. 105 
 
 Sec. 48. — If mortgagee keqrs possessmi after he has received the money due, he 
 shall forfeit double the sum and treble costs. 
 
 And be it further enacted, that if any such mortgagee or mortgagees shall 
 keep possession of any toll-gate or bar by him, her, or themselves, or by any 
 other person or persons, on his, her, or their behalf, and receive the tolls or 
 duties thereat ; or of any such rents and profits as aforesaid, after such mort- 
 gagee or mortgagees shall have received the full sum or sums of money due 
 on their respective mortgage or mortgages, and the interest thereof, with 
 costs, such mortgagee or mortgagees shall forfeit and pay as a penalty, to the 
 trustees or commissioners, double the sum or sums of money he, she, or 
 they shall have received, over and above the sum or sums of money due as 
 aforesaid, with treble costs of suit, to be recovered by the treasurer or clerk 
 to such trustees or commissioners, by action of debt, bill, plaint, or informa- 
 tion, in any of His Majesty's Courts of Record, which when recovered shall 
 be applied to the use of the respective road or roads on which such toll-gate 
 or bar shall be placed, or such rents appropriated. 
 
 Sec. 64. — Trustees may be mortgagees. 
 
 On the qualification of the trustees, it is provided, that no mortgagee or 
 assignee of any mortgage or other security, or any lender of money upon the 
 credit of the tolls, or receiving interest thereout for the same, shall on tliat 
 account only be deemed unqualified to act as a trustee or commissioner in 
 the execution of any such act ; and any trustees or commissioners, appointed 
 or to be appointed under any such act, who are or shall be in the commission 
 of the peace, may act as such justices of the peace, in the execution of any 
 such acts, notwithstanding their being such trustees or commissioners, except 
 in such cases only wherein they shall be personally interested otherwise than 
 as a trustee, commissioner, mortgagee, assignee, lender of money, or holder of 
 any security on the credit of the tolls granted by any such act. 
 
 By an act to explain and amend the foregoing act, the following 
 clauses are relevant : — 
 
 4 Geo. 4. c. 95. sec. 60. — Instead of paying off creditors rateably, trustees 
 may do so by lot. 
 
 And be it further enacted, that in case the trustees or commissioners of 
 any turnpike roads shall at any time or times be desirous of paying off any 
 portion of the principal monies due and owing upon the credit of such road, 
 where all the interest due thereon shall have been fully paid or otherwise 
 satisfied, it shall and may be lawful for them, at any meeting to be holden ac- 
 cording to the directions of the said recited act or this act, or of the act or 
 acts in execution of which they shall act, (notice of such intended meeting, 
 and of the purposes thereof, being first given at least twenty-eight days pre- 
 ceding the same by advertisement, in some newspaper printed in or usually 
 
 M
 
 lOG LAW TRACTS. 
 
 circulated in the neighbourhood of the said road) if they shall think fit, instead 
 of paying the same rateably amongst all the creditors, to determine by lot to 
 which of such creditors the whole or any portion thereof shall be so paid, and 
 to pay the same to such creditor or creditors only, or to any of the creditors 
 with the consent of all the other creditors. 
 
 Sec. 61. — Trustees not jjersonally liable for mortgages. 
 
 Provided always, that the trustees or commissioners for making or main- 
 taining any turnpike-road shall not be personally subject to or liable to be 
 charged with the payment of any sum or sums of money, by reason of their 
 having signed or executed any mortgage, or assignment by way of mortgage, 
 or other security to be made by virtue or in pursuance of any act for making 
 or maintaining any turnpike-road. Provided also, that in case any action, 
 suit, or prosecution shall be brought or commenced against any such trustee 
 or commissioner, for any thing done by virtue or in pursuance of the said 
 recited act, of the third year of his present Majesty, or this act, or any such 
 act for making or maintaining any turnpike-road, all the costs, charges and 
 expences of defending such action, suit, or prosecution, or which such trustee 
 or commissioner shall incur in consequence thereof, shall be defrayed out of 
 the tolls arising on the turnpike road for which such trustee or commissioner 
 shall act. 
 
 These are the principal, and indeed only entire clauses relating to 
 mortgages, throughout the 247 sections of the original and amended 
 act ; and as far as the writer is capable of judging, he considers 
 them well calculated to carry into effect the purposes for which they 
 were intended. But it has been objected in no very measured terms 
 that " the form of mortgage is one complete solecism from beginning 
 to end." 
 
 " By this form," it is said, (to give the critic's objection all 
 the benefit of his own language) " the trustees are made W grant 
 and assign, whereas they were authorized to detnise and mortgage. 
 What they grant and assign is such proportion of the tolls, toll-gates, 
 toll-houses, &c. Whereas they were to demise and mortgage not a 
 proportion but the u^hole of the tolls, turnpikes, and toll-houses; 
 and it is quite incompatible with the ejectment clause, to mortgage a 
 proportion and give a right to recover the whole, as it is also with 
 the jjari passu clause (as it shall for brevity be called) above alluded 
 to, and as it is indeed with every principle of reason and good sense. 
 Then comes the habendum, the grasping ' To have, hold, receive, 
 and take' — and it certainly clenches the imperfection of the whole. 
 To hold during the residue of the term for which the tolls are grant- 
 ed, unless the mortgage money shall be sooner repaid and satisfied.
 
 LAW TUACTS. 107 
 
 appears to be language never giving an absolute estate in law, or the 
 right to talce what the party is to hold. — It should have been to hold 
 for the residue of the term, with a proviso to be void if the money 
 were paid in a given (lesser) term, say six months. — These months 
 expired and the money not paid, the demise or mortgage is absolute 
 in law subject only to redemption in equity, and an ejectment may be 
 supported ; but it may be very questionable whether, under the pre- 
 sent form, it could. — ' To hold unless^ &c.' giving a long life to the 
 condition and no life to the habendum, is like a rule nisi, not capable 
 of being made absolute, or, in other words, good for nothing. — The 
 form of the assignment of mortgage is also imperfect, it assigns only 
 the right and title to the money secured. Speaking therefore of the 
 power to mortgage, of the form of mortgage, and form of transfer, 
 the author"* does not hesitate to say, they betray a total want of pro- 
 fessional science, — of logical system and of legal efficiency : — a mort- 
 gage of tolls only, and a mortgage of tolls and toll-houses, are very 
 different things, since tolls are not the subject of an action of eject- 
 ment, whereas the toll-houses and gates are ; so that a person having 
 a mortgage of tolls only, has not any remedy but by application to 
 a Court of Chancery, whereas if the corporeal property, the houses 
 and gates, were mortgaged to him in such way as to make his estate 
 absolute by forfeiture of the condition for payment, he would have 
 the much more summary remedy of ejectment, and thereby getting 
 possession of the toll-houses, gates, and funds, and paying himself 
 and all the other mortgagees in equal proportion.^ — (See Doe dem. 
 Banks v. Booth, 2 Bos. and P. 219 — and Fairtitle t'. Gilbert before 
 referred to.) Through the whole of this trifling publication a wish 
 has been entertained to abstain from the use of technical words and 
 reasonings as much as possible, but in commenting upon the language 
 and effect of an Act of Parliament, it is not practicable to avoid a 
 departure occasionally from such a plan. — To return however to this 
 subject, and to speak in a way which will be intelligible to all men, 
 the writer begs to use the following simple metaphorical hypothesis. 
 — Suppose any one came to a pawnbroker's shop to raise money on a 
 chest of oranges, the pawnbroker would take care to have an absolute 
 
 4 This is an extract from a pamphlet entitled " Observations and Critical Re- 
 flections upon the last Act of Parliament relating to the Turni)ike Roads in England, 
 intended to point out its imperfections and inconsistencies ; respectfully addressed 
 to the trustees, clerks, treasurers, and managing surveyors, of all turnpike roads, 
 by Bernard John Wake, of Sheffield, solicitor." Baldwin and Co. Paternoster- 
 row, 1822.
 
 108 LAW TRACTS. 
 
 property in tlic oranges at a time long preceding the period of their 
 decay, and his bargain would not be (like the mortgage here prescrib- 
 ed) to hold tlic said oranges till they are rotten, unless the said sum 
 be sooner paid." 
 
 Mr. Dchany, the learned counsel who prepared this act, and whose 
 logic, law, and professional efficiency are thus wantonly impeached, 
 in a note to his edition of the act writes in answer as follows : — 
 
 " This clause and others in the act relating to mortgages have been 
 very violently and learnedly attacked by a gentleman who has pub- 
 lished observations and critical reflections upon the act, and whose 
 anxiety, like that of most critics, is to discover defects : he patheti- 
 cally laments the want of attention shewn to the interests of those 
 persons who lend money on the security of tolls, and states the im- 
 possibility, on an instrument framed according to the form given 
 above, oif enforcing the powers given to the mortgagee, to obtain 
 possession of the toll-houses by an action of ejectment. In answer 
 to his arguments, it is only necessary to refer to the case of Doe on 
 the demise of Banks against Booth, 2 B. & P. 219, which was an 
 action of ejectment by one mortgagee to recover the possession of 
 toll-houses, on a deed almost in terms the same as the form in this 
 clause, and the plaintiff had no difficulty in recovering and subse- 
 quently supporting his verdict. — It was in reference to this case that 
 the form in the act was adopted as one long known and in familiar 
 use, and which it was thought more adviseable to retain, no difficul- 
 ties being suggested to have arisen from its phraseology, than to 
 frame another: this, as before stated, was the plan adhered to in 
 preparing the bill, where the provisions of former acts were to be 
 re-enacted, and more particularly m those cases on which decisions 
 of the courts were found in the books. In Fairtitle on the dem. of 
 Mytton and others against Gilbert, 2 T. R. 169, the plaintiff could 
 not recover, because the act gave no authority to the trustees to 
 mortgage the toll-gates and houses : here such a power is expressly 
 given." ^ 
 
 Controversy would be interminable, if reply were allowed on reply. 
 The charge has been heedlessly made if its principal arguments have 
 been so far omitted as to require a replication. Mr. Wake's " Reply 
 in support of his doctrine" ^ adds little to his argument. It is 
 
 5 Dehany's Turnpike Road Act. 
 « Clarke, 1823.
 
 LAW TRACTS. 109 
 
 headed, indeed, with an alarming annunciation to mortgagees: 
 " Lenders of money on mortgage of tolls, &c. cannot under the 
 present act have any legal security." He at once " boldly ventures 
 to maintain that the case referred to [by Mr. Dehany] has no bearing 
 or analogy whatever upon the subject under discussion." Then fol- 
 lows the ensuing extracts : — 
 
 " If any one will take the trouble to refer to it, he will find the 
 pith of it, and its decision, alone to be, that one mortgagee might 
 maintain his action, notwithstanding a clause in the act, that all the 
 mortgagees should be creditors in an equal degree ; whereas, my 
 doctrine is, that the form of mortgage, prescribed by the present 
 act, renders it impossible that any mortgagee can recover at all by 
 ejectment. — That case determined a dispute only upon the point 
 which came before the court, and there was not a single dictum ut- 
 tered, either by the court or counsel, which can, in any wise, be 
 deemed pertinent to the present question. ^ But I will, for the sake 
 of argument, and for that sake only, concede an analogy. The 
 words of the form [in Doe v. Booth] were, ' to hold the said tolls, 
 &c. till the said sum of 100/. with interest, should be paid :' — those 
 in the form in question are, ' to hold the said tolls, &c. during the 
 residue of the said term, for which the said tolls are granted, unless 
 the mortgage money and interest should be sooner paid.' 
 
 ** Till and unless are surely words which have no synonymous mean- 
 ing. It is known to every Tyro in the study of the law, that all 
 issues joined in the Courts of Record at Westminster, are appointed 
 to be tried there, unless the king, or, in other words, his represen- 
 tatives, the judges, should sooner come into the county where the 
 venue is laid. Nisi prius adveneat Rex. Now, if in this instance, 
 the word donee (until) were substituted for nisi (unless), it would, I 
 apprehend, make perfect nonsense of the record. If A B granted 
 to C D his estate, until he (A B) paid a certain sum of money, C D 
 would instantly acquire an absolute interest in the mortgaged estate, 
 and he would continue to have it until the money should be paid ; 
 but if A B granted to C D his property for a term of twenty-one 
 years, unless he should sooner repay the money, I apprehend, that 
 C D's estate would be sub modo, and that the twenty-one years must 
 elapse before C D acquired such absolute legal estate, which would 
 then be worthless. To enable CD to support his ejectment, his 
 estate must be absolute at law ; and to revert to my former argument, 
 
 7 To rebut this round assertion, the judgment is introduced in the preceding 
 part of this tract verbatim.
 
 110 LAW TRACTS. 
 
 it is plainly and simply this, — that C D, for want of this absolute 
 estate, could not su})p()rt his cjectinent, and would be left to his 
 remedy in equit}'. With such a remedy only, who would lend 
 money on mortgage of any property whatever ? I may be allowed to 
 ask Mr. Dehany, what opinion any eminent conveyancer would give 
 on a mortgage of any other species of property worded as this is. I 
 feel much confidence in anticipating, that he would agree with me, 
 that it would be destitute of the remedy by ejectment, if not by 
 foreclosure." 
 
 A humble member of the body invoked, begs to declare his 
 opinion, that mortgagees under the present turnpike acts are perfectly 
 safe as far as the legal form of their security goes. — They have all 
 the remedies intended them by the legislature, and those remedies 
 are as ample as the nature of the property will admit. There can 
 be no well founded doubt that an ejectment would lie. The Court 
 of Common Pleas has declared as clearly as it can well speak, that 
 such an ejectment will lie, and it is sufficiently obvious that the legis- 
 lature intended that the form in question should support this remedy, 
 by declaring " that an action of ejectment may be maintained by one 
 mortgagee without the others." ^ Foreclosure is out of the question : 
 Who is the person, and what is the thing, to be foreclosed? — 
 Surely not the toll-house, for it would be absurd that a person should 
 have an absolute property in the incident, and a qualified one in the 
 principal. The thing mortgaged is the toll, and not the dish which 
 contains it. The trustees have power to mortgage the toll, and as a 
 necessary consequence, to demise not only the toll but the toll-house, 
 &c. As to the discrepancy respecting the grant and demise, the 
 act must be interpreted as speaking continuously, and should be read 
 thus : — Be it enacted, that the commissioners shall have power to 
 mortgage and demise the tolls by way of grant and assignment. Now 
 a mortgage does not depend upon the words used, but on the nature 
 of the transaction, and a term being granted, it ii in fact a demise : 
 no person can deny that the form prescribed is a " demise and mort- 
 gage." Besides, the mortgage is not to be imperatively by way of 
 grant, but " in the words or to the effect following," &c. The power 
 further enables the trustees to mortgage the tolls, or " z.ny part or 
 parts thereof Hi's they shall think pro])er." The words in italics seem 
 to have been entirely overlooked by the critical observer, who con- 
 
 « Ante, p. Kil
 
 LAW TRACTS. Ill 
 
 ceives that the trustees were empowered to demise the whole only, 
 and not a proportion. 
 
 If I grant an estate to A until B returns from Rome, the meaning 
 is, that as soon as B returns A's estate shall cease. Suppose I am 
 possessed of a leasehold estate for a term of 30 years, and can pro- 
 cure money upon it only by way of Welch mortgage ; I should assign 
 the estate to the lender, — To hold to him for all the residue of the 
 term, unless the sum borrowed should be sooner rejjaid and satisfied. 
 This habendum, in the very words of the act, appears to be neither 
 untechnical nor insensible. It has been shown in the preceding part 
 of this tract, that the nature of the property under consideration 
 admits only of a mortgage by way of condition subsequent; and if 
 so, the form adopted by the General Act is in exact accordance with 
 the acknowledged form for the correct expressions of that species of 
 condition. 
 
 The elegant allusion to the rotten oranges bears a strong resem- 
 blance to the argument, — the whole is equally unsound and untenable. 
 A moment's reflection will show that two subjects of property cannot 
 well be devised, which shall be more dissimilar than a chest of 
 oranges and a turnpike toll. The mortgagee is not simply to hold, 
 but he is also to receive the toll, and that for his "own benefit," 
 during the period for which the mortgage is made ; and he may ob- 
 tain possession immediately upon the execution of the moi'tgage, or 
 at any time afterwards. What more absolute property in the article 
 mortgaged could his legal adviser desire ? — He is not to hold it till it 
 becomes useless, but to pluck the fruit from day to day as it ripens. 
 The objector's rhetoric is on a par with his philology. 
 
 The acumen of his perception too seems somewhat blunted ; for 
 the most palpable deficiency in the act has entirely escaped him. 
 Provision is made for enabling the mortgagees to obtain possession, 
 but there is no clause enabling them to recover the tolls from travel- 
 lers neglecting or refusing to pay. The 39th section declares that 
 it shall be lawful for the person authorized or appointed to collect 
 such tolls, to distrain any cattle, carriage, &c. for the recovery of the 
 toll imposed ; the mortgagees are not appointed to collect the toll ; 
 they may indeed be said, from the general tenor of the act, to be 
 authorized to receive them, but it is clear from the wording of this 
 section that mortgagees in possession were not in contemplation — the 
 section relates simply to the Collector. The mortgagees are cer- 
 tainly to account for all the tolls they do receive ; but if they cannot 
 obtain payment peaceably, are they empowered to invade the liberty 
 of the subject by stopping the traveller on his journey, depriving
 
 112 LAW TRACTS. 
 
 him of his property, and selling it at the next market town? Such 
 an exertion of power requires the strongest possible warrant, but 
 it is nowhere expressly given throughout the act. Is inference 
 enough to support it ? It is submitted that it is not ; but that the 
 remedy is by summons in the county court, action of debt, or other 
 civil process. 
 
 Nor is it immediately apparent what line of conduct the mortgagee 
 in possession is to adoi)t in regard to the tolls he actually does receive. 
 Is he to appropriate the whole sums received in liquidation of the 
 principal and interest on all the mortgages, leaving the roads to re- 
 pair themselves? or what proportion is he to set apart for reparations? 
 — This should have been more clearly defined ; but that mortgagees 
 under the present turnpike act have no legal security, is a pro- 
 position which cannot for a moment be maintained on solid grounds. 
 
 The learned counsel who prepared the act states that he adopted 
 the form in question because it was " long known and in familiar 
 use." A reference to the road acts for the last century will amply 
 verify this remark. Mr. Wake, however, with a very questionable 
 politeness, begs to contradict thefact, for that ever since the year 
 1818, the following clause, prescribing the form of mortgage will, he 
 says, be found inserted in all private acts : — 
 
 " ' By virtue of an act passed, S:c. intituled, [Jiere set forth the title of this 
 
 * act~\ We of the trustees for putting the said act into 
 ' execution, in consideration of the sum of paid by of 
 ' to the treasurer of the said road, do hereby bargain, sell, and 
 ' assign unto his, her, or their executors, administrators and 
 ' assigns, the tolls arising by virtue of the said act, and the toll-gates, bars, 
 ' chains, and toll-liouses for collecting the same, and the buildings and ap- 
 ' purtenances thereunto belonging ; to hold the same unto the said 
 
 ' his, her, or their executors, administrators and assigns, from the day 
 
 ' of the date hereof, for and during the continuance of the said act, subject to 
 
 * the following proviso ; that is to say, provided always, that if the said sum 
 ' of with interest for the same, at the rate of pounds 
 
 * per centum per annum, shall be repaid and satisfied to the said his, 
 
 * her, or their executors, administrators or assigns, within calendar 
 ' months from the day of tlie date hereof, then the mortgage and assignment 
 
 * shall be void. In witness whereof we have hereunto set our hands and 
 ' seals, this day of in the year of our Lord one thousand 
 
 * eight hundred and .' 
 
 " This clause," he adds, " was originally penned by myself, and, 
 after some opposition, the noble earl who is chairman of the com-
 
 LAW in ACTS. 113 
 
 mittees of the House of Lords, not only consented to its insertion 
 into the bill, in which I introduced it, but actually required it in ail 
 subsequent bills, with some few exceptions." 
 
 On this form of mortgage it may be permitted to inquire, by, 
 whom the money is to be paid at the day mentioned ? — no person can 
 be named who is bound to make such payment. If then it be in- 
 cumbent on no one to perform the condition, is it not void for want 
 of proper parties, or for uncertainty ? To every condition a right 
 of re-entry or' its equivalent is incident ; in whom does such right re- 
 side in the present instance ? Not in the trustees, for every right 
 must be accompanied with a correlative duty, and they are not in- 
 cumbered with any duty of this nature. If the condition be not 
 performed on the day, the tolls become absolutely vested in the 
 mortgagee, discharged of the condition at law ; — and who is to re- 
 deem in equity ? — the trustees ? — with what money ? If they have 
 any surplus money in their coffers they may certainly redeem, not as 
 mortgagors, but by virtue of the 50th section of the amending act, 
 and it is quite clear that a second mortgagee could not enforce a re- 
 demption. But observe the whole tolls of the entire line of road are 
 conveyed to the mortgagee, and by non-performance of the condi- 
 tion become absohitehj vested in him. Now it is a palpable incon- 
 sistency to convey the entirety of the tolls to the mortgagee, when 
 the act of parliament declares he shall be entitled to an aliquot part 
 only. Suppose the mortgagee to hold over after perception of his 
 principal interest and costs, and to appropriate all the tolls to him- 
 self, could the trustees eject him? Certainly not upon principle, for 
 they have conveyed to him the whole tolls as long as the road shall 
 last, and the condition (if condition it be) not being performed, they 
 would be without remedy at law; and if the treasury be nearly 
 insolvent, they would be without remedy in equity. To such a di- 
 lemma does the noble Earl's adopted mortgage reduce them. The 
 fact is, that such a mortgage is incompatible with the spirit of the 
 act, — the nature of the property, — and the principles of the laws of 
 England, and would clearly have been void, were it not for the de- 
 claration of my Lord Eldon, ^ that whatever be the form of the 
 demise, it will operate so as to effectuate the intention of the act. 
 
 What benefit a mortgagee obtains by entering into possession 
 and receipt of the tolls is not immediately apparent. The trustees 
 or commissioners are the persons in whom the exclusive management 
 resides. The mortgagee obtains merely the right of receiving the 
 
 y Aulc, {1. 100 of this Tract.
 
 114 LAW TRACTS. 
 
 tolls for himself and other incumbrancers with all the trouhle of the 
 accounts. Can he appoint a collector ? Certainly not. But he 
 may perhaps appoint an agent to receive such tolls as are willingly 
 paid, though it is apprehended he cannot charge in his account the 
 expenses of such agencj', nor are the other incumbrancers bound to 
 contribute towards payment of the agent's salary, for they may 
 much prefer the regular collector who has power to distrain. 
 
 
 $ 
 
 THE END OF NO. IV. 
 
 # m 
 
 %
 
 LAW TRACTS. 
 
 No. V. 
 
 AN EXAMINATION OF THE AUTHORITIES 
 
 ON THE QUESTION, 
 
 Whether Executors having a Poiver to Sell can viahe a 
 good Conveyance of the Legal Estate in the Land 
 without the Concurrence of the Heir-at-law ? 
 
 A PECULIAR species of bargain and sale is noticed by some writers,i 
 called a bargain and sale at common law, upon which a use may be 
 limited to another person than the bargainee and to the perfection 
 of which enrolment is not essential. The single instance of its appli- 
 cation is under a naked authority, as where commissioners of bank- 
 rupt are empowered to bargain and sell the real estate of the 
 bankrupt without having any actual interest in the estate themselves; 
 or, where a testator directs his real property to be sold by his 
 executors for payment of his debts, and they sell and convey by a 
 deed of bargain and sale. The first species of bargain and sale is 
 of statutable introduction, and can scarcely be called a bargain and 
 sale at common law. It operates by way of appointment, and any 
 other deed indented and enrolled would answer as well. The 
 bargain and sale by executors, under a naked authority to sell, is the 
 only approach to a bargain and sale of the above singular descrip- 
 tion. But it is submitted, that no such instrument was ever known 
 at common law, and that if it can be now maintained it will require 
 enrolment. 
 
 This doctrine is founded on Littleton's Tenures, sections 167 and 
 169, but it will be observed that Littleton is speaking of special 
 
 1 2Pres. Abs. 256. 2()U
 
 116 LAW TRACTS. 
 
 customs, wliicli are in direct C(mtravention of the common law, and 
 rather evidence >vhat the coninion law was )U)t tlian what it was. 
 When Littleton wrote, a tenant in fee simjde had not the power of 
 devising his estate,—" but by the custom of Borough-Enghsh," says 
 the learned Judge, " a man may demise by his testament, his lands 
 and tenements, which he hath in fee simple within the same Ijorough 
 at the time of his death ; and by force of such devise, he to whom 
 such devise is made, after the death of the devisor, may enter into 
 the tenements so to him devised, to have and to hold to him after 
 the form and effect of the devise, without any livery of seisin thereof 
 to be made to him," sect. 167. ''Also by such custom a man may 
 devise by his testament, that his executors may alien and sell the 
 tenements that he hath in fee simple, for a certain sum to distribute 
 for his soul. In this case, though the devisor die seised of the tene- 
 ments, and the tenements descend unto his heir ; yet the executors, 
 after the death of the testator, may sell the tenements so devised to 
 them, and put out the heir, and thereof make a feoffment alienation 
 and estate by deed, or without deed to them to whom the sale is 
 made. And so may ye here see a case where a man may make a 
 lawful estate, and yet he hath nought in the tenements at the time of 
 the estate made. And the cause is for that the custom and usage is 
 such. For a custom used upon a certain reasonable cause, depriveth 
 the fcommon law," sect. IGD. My Lord Coke adds, "For albeit the 
 execvitors in this case have no estate or interest in the land, but only 
 a bare and naked power, yet this feoffhient amounteth to an aliena- 
 tion to vest the land in the feoffee, as it appeareth here, and the 
 feoffee shall be in by the devisor." 
 
 The Statute of Wills- then enacted, that all persons having any 
 manors, lands, tenements or hereditaments, holden in socage, or of 
 the nature of socage tenure, should thereafter have full and free 
 liberty, power and authority, to give, dispose, will and devise, as well 
 by his last will and testament in writing, as by any act or acts law- 
 fully executed in his life, all his said manors, &c. or any of them, at 
 his free will and pleasure. — To the above passage in Littleton's 
 Tenures, that " the executors may alien and sell the tenement," 
 Lord Coke adds, " and that which in Littleton's time a man might 
 do by custom in particular places, he may now do by the Statute of 
 Wills generally," Co. Litt. 112, b. But Lord Coke does not proceed 
 to say that the executors might do what by custom they were 
 
 3-' lien. 8. can. 1.
 
 LAW TRACTS. 117 
 
 enabled to do ; viz. to alien the legal estate without having aught in 
 the tenements. The Statute of Wills authorized the tenant in fee- 
 simple to devise, but it must be intended that it so authorized him to 
 devise according to the rules of the common law, and not accoi-d- 
 ing to the customs of Borough-English. As a fundamental maxim of 
 the common law, a man cannot pass an estate to another without livery 
 of seisin or its equivalent, which a devise is necessarily considered 
 to be. Treating the devise purely upon principle, it is submitted 
 that under a will which directs that the testator's lands should be 
 sold by his executors, the legal estate passes to his heir-at-law, and 
 remains in him until transferred by some conveyance under his hand 
 and seal ; — that the direction to sell creates a trust in equity, which, 
 if the executors die, the court itself will perform, decreeing the heir- 
 at-law to convey ; — that this case is totally different from a devise to 
 A, after he shall have attained twenty-one; for on his attaining 
 twenty-one, the legal estate which descended to the heir in the mean 
 time is transferred by the operation of the will to the devisee. 
 Here, however, there is no actual devise, but a mere trust in equity, 
 which a court of law cannot compel the performance of. Here is no 
 devise to the vendee, and no estate or interest vested in the executors. 
 In the case of a devise to such persons as A shall appoint, the case is 
 different ; for on appointment the devisee may well enough be said to 
 be in by the devisor, the devise being to him. So if the will be 
 that the executors shall sell, and the testators adds " that upon 
 such sale he devises the estate to the purchaser accordingly," this 
 would be a good executory devise, and the mere contract for sale 
 would convey the legal estate to the vendee without more. But it is 
 difficult to conceive how, without such devise, any instrument which 
 the executors can execute would pass the legal estate to the devisee 
 so as to enable him to maintain ejectment. It is admitted by all the 
 authorities on this subject, and even by Lord Coke himself, that the 
 devise passes no estate or interest to the executors, but merely a 
 naked power or authority. The vendee therefore can take no estate 
 or interest from them, and he clearly takes nothing by the will — how 
 then can he acquire the legal estate by the rules of the common law ? 
 — by custom, indeed, the executors might pass a lawful estate, 
 although they have nought in the premises themselves, provided the 
 money be distributed in masses for the benefit of the testator's soul ; 
 but since the abolition of superstitious uses, it may l)e fiurly ques- 
 tioned, whether lands in Borough-English even could be passed by 
 the means marked out by Littleton. A distinction is made l>y
 
 118 LAW TUACTS. 
 
 Lord Coke, between a devise ** that executors shall sell," and a devise 
 " of land to be sold by executors." In the former case, the executors 
 are treated as taking a mere naked power; in the latter, as taking 
 a vested interest in the land, which must necessarily be in fee- 
 simple, as no less estate is named. His own words are more striking, 
 ** Devised his lands to be sold by his executor : This must be intended 
 to be of lands devisable by custome, for lands by the common law 
 were not devisable (as hath been said :) for in this section is implyd 
 a diversity, viz. when a man deviseth that his executor shall sell the 
 land, there the lands descend in the mean time to the heire, and 
 until the sale bee made the heire may enter and take the profits. 
 But when the land is devised to his executor to be sold there the 
 devise taketh away the descent, and vesteth the estate of the land 
 in the executor, and he may enter and take the profits, and make 
 sale according to the devise. And here it appeareth by our author, 
 than when a man deviseth his tenements to be sold by his executors, 
 it is all one as if he had devised his tenements to his executors to be 
 sold : and the reason is, because he deviseth the tenements, whereby 
 he breakes the descent."^ 
 
 Mr. Hargrave treats this distinction as having the appearance of 
 a too curious and overstrained refinement ; such as rather consists 
 in the formal arrangement of words than any thing substantial ; and 
 Lord Chief Justice Rolls doubted of this opinion, because, he said, 
 it was only a descent, according to the words of Littleton ; and that 
 it appeared to him, that when lands are devised to be sold by exe- 
 cutors, there no interest passes ; Lord Nottingham's MSS., Co. 
 Litt. 236 a, n. (1)^ — The distinction was however recognized by Lord 
 Hale, in Barrington v. Attorney General.^ His Lordship observed, 
 that if a man devise that his lands shall be sold by his executors 
 for payment of his debts, that will give the executors an interest 
 as well as if he had devised his lands to his executors to be sold : 
 otherwise, where he devises in general that his lands shall be sold, 
 without saying by whom, though in that case the executors must 
 sell, 15 Hen. 7. — On referring to the Year Books for the case cited, 
 it will be found to be perfectly irrelevant to the subject in discussion ; 
 the only part of the case that could be at all applicable, is a passage 
 at the end, where the point in question was compared to the case of 
 executors having a power to alien the land devised to them, in which 
 case it was said that if the executors refused, neither the feoffees to uses 
 
 a Co. Litt. 23G, a. * Et vide Co. Litt. 113, a. n. (2) * Hard. 419.
 
 LAW TRACTS. 1 19 
 
 nor any other person could execute it for them. — In Kielway c also, 
 the distinction alluded toby my Lord Coke is noticed, but it is stated 
 in a very different way. The words of the Report are *' Nota cest 
 diversitie fuit prise si home en son testament voile que son execut 
 poient vender son terre et faire distribution pur son alme, en cest 
 case apres le mort le testator le franktenenit discend al heire, me^ 
 auterint est si en son Testament il doii son terre a les ea^ecpur distribut 
 pur son alme, car en cest case le franktent est en le exec apres le mort le 
 testator et nemy en I'heyre." On sound construction it should fol- 
 low that Lord Coke's distinction cannot be maintained. But if the 
 executors do take an interest, as distinguished from a mere authority, 
 then their bargain and sale must necessarily pass a use and require 
 enrolment, in which case, the concurrence of the heir-at-law could 
 not be necessary ; but it may be inferred from the later authorities, 
 that such a devise does not pass an interest, and in that case it is 
 submitted that the concurrence of the heir-at-law will be necessary 
 to complete the conveyance to the purchaser. 
 
 Mr. Powell, indeed, speaking of authorities expressly given to 
 executors to sell, says, that after the death of the testator, the 
 freehold descends to the heir, who is entitled to the profits until the 
 sale. But the executors may enter and make a feoffment of the 
 land; and this will be a good execution of the will to convey the 
 land to the feoffee, because he will be in by the devise. The learned 
 gentleman cites the following authorities, Kielway, 45, 108. — 
 Moore, 774.-9 H. 6, 24.— Co. Litt. 113.— 1 Roll. Ab. 330. Sup- 
 posing these authorities to be exactly in point, it will be observed, that 
 they were all before the statute of Wills, and mere bequests for 
 pious or superstitious uses. The only applicable passage in Kielway, 
 is a dictiun of Read, J. who said, " that if a man will that his land be 
 sold without naming any person who shall make the sale, the exe- 
 cutors shall sell, for they represent the estate of their te^fetator, in 
 which case, the heir shall have the profits of the land before the sale 
 made, but after, the heir shall cease meddling with the land." The 
 other quotation from Kielway, is that before cited. On this dictum, 
 it is merely necessary to remark, that before the statute of Wills, the 
 plan adopted to circumvent the common law, was to make a feoff- 
 ment to A B, to such uses as the feoffor should by will appoint: if 
 he devised his lands to be sold, then per Read, J. his executors 
 should sell, and after sale, the testator's heir, who took the use till 
 
 6 p. lOS.
 
 1:J0 LAW TllACTS. 
 
 sale, should cease meddling with the land. But the learned Judge 
 does not say, that the concurrence of i\\e feoffees was unnecessary. 
 The legal estate was outstanding in them, and their conveyance was 
 essential to transfer it to the vendee. By the operation of the Statute 
 of Uses, the heir stands now exactly in the same situation as the 
 feoffees did formerly. He has the legal estate in fee simple, subject 
 to a trust to arise at a future period. Till that period arrives, he, as 
 formerly, is entitled to the rents and profits of the land ; after a sale 
 has been made, he ceases to have any beneficial interest, but the 
 legal estate still remains in him in trust for the vendee, who can com- 
 pel a conveyance at his pleasure — which doctrine has been fully 
 confirmed by two very recent cases hereafter mentioned. 
 
 If then the concurrence of the heir be necessary when executors 
 are not specifically named, and if when they are named, they have 
 precisely the same bare naked authority and no actual interest, it 
 should follow that their bargain and sale can only pass the trust and 
 not the legal estate. The vendee in this case, we shall be presently 
 told, is in of the devisor ; but is he not as much in of the devisor 
 when the executors exercise the power of sale without being speci- 
 fically named? Yet in that case it has been repeatedly held that he is 
 not in the seisin, but that a conveyance from the heir-at-law is necessary 
 to give him that seisin. In Carpenter v. Collins, ' the devise was, 
 that the testator's executor should have the oversight and dealing 
 of all his lands till his children came of age. It was adjudged that 
 these words gave no interest, but only an authority to the execu- 
 tors, and that the estate vested by descent in the son. This can 
 be no authority that the concurrence of the son was not necessary to 
 pass the legal estate to the vendee ; but on the contrary it shows 
 that the estate was vested in him. 
 
 The following is from the Year Book, 9 Hen. 6. 24, 5 — "Paston: 
 If a man devise in London that his executors shall sell his lands, and 
 die seised, his heir is in by descent; and yet by the sale of the exe- 
 cutors he shall be ousted, and in the same manner his heir after 
 him : but if a man devise his lands to his executors, then the free- 
 hold is in them by the devise. But if the heir of the devisor 
 abates, and dies seised, and his heir enters by descent, in that case 
 the executors cannot oust him who is in by descent." 
 
 The merits of Co. Litt. \VS, have already been discussed, and 
 1 Roll. Abr. 330, is founded upon Littleton's section above cited. 
 
 ' Moore, 771.
 
 LAW TRACTS. 1^1 
 
 In this stage of the question, it is submitted, that the assertion 
 that the vendee is in of the devisor, is not enough to pass the legal 
 estate to him, unless consistently with the principles of the law of 
 real property, a sufficient aqueduct is formed so to pass it. The 
 exact question was not involved, and the circumstances are ma- 
 terially different — but it is necessary to pass on to the succeeding 
 cases. 
 
 In the case mentioned in Jenkins,^ from the Year Books, the devise 
 was to the executors to sell, and they were held to have the fee to 
 enable them to sell. — So it was noted by Popham,^ that if the devise 
 be, that J. S. shall make a feoffment or lease for life, this will be an 
 interest in the devisee, because otherwise he cannot make livery. 
 But a devise that executors shall sell, will not give an interest, al- 
 though the reasoning of Jenkins and Popham might be equally 
 well applied. 
 
 In Carvill v, Carvill, '** the testator gave several legacies, 'and ap- 
 pointed them to be paid by sale of his lands, and made the plaintiffs 
 executors, who on the death of the testator filed a bill against his 
 heir-at-law ; averring, that though no person was in express words 
 named to sell the lands, yet the sale ought to be made by the execu- 
 tors, and praying that the heir ought to be compelled to join in the 
 sale. The Court of Chancery, upon reading the will, decreed the 
 said lands to be sold by the said executors, and the said legacies to 
 be paid thereout according to the will, and gave judgment for the 
 plaintiffs. 
 
 The Anonymous case in Leonard^' determined three points: — 1st, 
 That where a general authority is given to sell for the payment of 
 debts and legacies, and no person named to sell, the executors may 
 selL 2nd, That if there be several executors and one dies, the 
 survivors may sell ; and 3dly, That though the estate be directed to 
 be sold after the death of the tenant for hfe, the executors may sell 
 during the hfe of the tenant for life. 
 
 In Pitt V. Pelham'^ the testator devised that his estate should be 
 -sold and the money arising thereby distributed between his heir and 
 three nephews ; Lord Keeper Bridgman after great consideration, 
 held that the will was void for uncertainty. But it was afterwards 
 decreed in the House of Lords, that the heir should sell ; for 
 \vhen no person is appointed to sell, it ought to be intended that he 
 shall sell who has the estate, which is the heir ; and the Chancellor's 
 
 8 Jenk. 44. 9 Cro. Eliz. 678. 734. ^^ 2 Ch- Rep. 303. 
 
 •12 Leon. 220. >2 \ Lev. 304.
 
 122" LAW TRACTS. 
 
 decision was reversed accordingly. — This case is not exactly parallel 
 to the one under discussion, because in Littleton's case the executors 
 are directed to sell ; but it is a clear authority for this position, that 
 where a testator directs his lands to be sold and the money applied 
 by his executor in payment of his debts, the concurrence of the 
 heir-at-law is necessary to the completion of the conveyance ; for 
 though the executors may sell by reason that the money is to be 
 applied by them virtute officii, yet no person being appointed to sell, 
 the legal estate must be considered as vested in the heir ; and even 
 when executors are appointed to sell, it may, it is submitted, be fairly 
 inferred from this case that the heir-at-law must join in the sale, for 
 the qviestion in that case was not in whom the legal estate resided — 
 for it was admitted to be in the heir — but who should exercise the 
 power of sale : the estate not being devised to any other person it must 
 necessarily descend to and remain in the heir ; and although a person 
 may be appointed to sell and take the purchase money, yet that 
 simple direction will not amount to a devise. The position that when 
 no person is appointed to sell he shall sell who has the estate, means 
 merely that when a person is specifically appointed to sell, he who 
 has the estate shall not interfere in the disposition of the property: — 
 it can never be adduced as an authority that he who is appointed to 
 sell shall have the estate also ; on the contrary it rather proves that 
 the legal estate remains in the heir until it be regularly transferred 
 out of him, although a person be directed to sell. If an estate be 
 devised to A and his heirs in trust to sell, then he can not only sell 
 but also convey, and his conveyance must be M'ith livery or its equi- 
 valent, for he has superadded to the power the estate also ; and in 
 such case it may be truly said that a power of sale authorizes a con- 
 veyance. But a naked authority to sell does not per se warrant a 
 common law conveyance : the conveyance, whatever be its shape, 
 can only operate as an appointment and not by way of transmu- 
 tation of possession — it operates to designate a person, but not to 
 pass an estate. A devise that A should sell and keep the money, 
 would doubtless operate as a devise to A of the legal estate in fee- 
 simple, for A, being entitled to the entire produce of the estate, 
 may elect to have the land, and being both trustee and cestui que 
 trusty the former character will merge in the latter ; and as to the legal 
 estate, if that be considered as descending to the heir, it would 
 instantly be transferred to A by virtue of the statute of uses, and so 
 he become seised of the legal estate in fee-simple. But under a devise 
 th^ the executors should sell and apply the money in payment of 
 debts, this course of reasoning is altogether changed. The legal
 
 LAW TRACTS. 123 
 
 estate is never executed by the statute unless the cestui que use or 
 trust has some estate. It cannot therefore be transferred to a person 
 who has a mere naked authority and not even an equitable estate, 
 nor can it be transferred to the appointee, because the testator has 
 not given him any estate use or trust wherein the possession may be 
 executed. It may indeed be said that a devise to be sold means " to 
 be sold to some person" and that when such person is ascertained by 
 a sale, the devise is virtually to that person, who may then be said to 
 be in under the will ; but this refinement ^ would scarcely hold in 
 ejectment, except perhaps to rebut an objection equally unsubstantial 
 as that the devise is not within the statute of Wills, because the 
 statute says, " any person having land may devise it to another :" 
 whereas a devise that executors may sell is neither a devise to the 
 executors nor to the vendee. 
 
 In Yates r. Compton ^^ a person devised that his executors should 
 sell his land, and out of the proceeds pay an annuity. One executor 
 died, and the other renounced. The annuitant also died, and her 
 administrator, who was also administrator with the will annexed of 
 the testator, filed a bill against the heir to compel a sale and out of 
 the money arising therefrom to pay the arrear of the annuity. Lord' 
 King decreed the land to be sold and the heir to join ; and as to the 
 objection that the surviving executor was not made a party, it was 
 answered, that the estate descended to the heir-at-law, and he was 
 only a trustee to the use of the will; and as the executor renounced, 
 there was no occasion for him to be a party : And so it was held 
 Sel. Ca. Ch. 54. On this authority it is open to remark, as Mr. 
 Hargrave has in effect observed previously,''^ that if the power of sale, 
 which the Court held the administrator alone might well execute, 
 would on its execution have conveyed the legal estate, the concur- 
 rence of the heir could not have been necessary — yet he was decreed 
 to join. 
 
 The devise in Foon v. Blount'^ was in these words : " In order to 
 raise money for these payments, my estate at B must be sold to the 
 highest bidder as soon after my decease as it conveniently may be 
 done. To this end I do appoint, constitute and empower R. and S., 
 whom I make executors of this my last will, to sell, let, or set to sale, 
 both my estates of B. and E." Lord Mansfield : — " This is no devise 
 to the executors of the lands, but only a power and authority to them 
 eo nomine as executors to sell the lands for the purpose of paying 
 debts and legacies." This case completely sets aside the very nice 
 
 iS 2 P. Wms. 308. i-» Co.'Litt. 113 a, n. (2) i& Cowp.446.
 
 10.|, LAW TUACTS. 
 
 and refined distinction of my Lord Coke, if indeed the Noble Earl 
 was acquainted with it. 
 
 Where a testator devised all his real and personal estate whether 
 freehold or copyhold to be sold for payment of his debts, and appointed 
 the defendants executors, Lord Hardwicke decreed the estate to be 
 sold, and that the executors and heir should join in the sale.'*' It 
 was observed by the court in this case that where lands are devised 
 to trustees to be sold for payment of debts, and the heir-at-law is an 
 infant, he has no day given him to show cause on his coming of age ; 
 otherwise, ivhere there is no devise of land expresslt/ to any particular 
 person, for in that case he has; and this being one of these cases, his 
 Lordship directed the infant, the customary heir of the copyhold 
 premises, to join in the sale thereof on attaining 21, unless &c. — 
 This case does not exactly meet the one in review. If the devise be 
 to a. person in trust to sell, the legal estate is necessarily in him to 
 enable him to complete the trust, and he can make a good convey- 
 ance. If no person be directed to sell, the heir-at-law must concur. 
 Why ? — because the legal estate is not given away from him. The 
 question then is whether, if the devise be that executors shall sell, 
 the same reason does not hold : the legal estate is not given away 
 from the heir, though as in the other case it is subjected to a trust. 
 
 The strongest case in the Books agamst the construction here 
 contended for is that of Dike v. Ricks.'^ A, by will in writing, de- 
 vised land to B for life, and devised further that B (whom he made 
 his executor) should have power to sell the reversion in fee in case 
 there should not be sufficient goods to pay his debts, and died. 
 Afterwards B, not having sufficient goods, sold the land by bar- 
 gain and sale enrolled to H. S. and his heirs. Though the estate 
 for life passed by this bargain and sale by the statute of 27 Hen. 8. of 
 Uses and Eni'olments, yet the reversion in fee did not pass, because 
 the vendee came in by force of the devise, and not by the statute ; 
 yet it should pass by this deed indented and enrolled as a sale accord- 
 ing to the will, though neither the will nor j)ower were recited in the 
 deed, because B had no power to sell the fee of the land, but by the 
 will : and all the Judges held that the reversion in fee passed by vir- 
 tue of the power given by the will, and not by the bargain and sale ; 
 therefore Berkely and Crooke said that the plea was bad, for that it 
 averred the party was seised in fee by the said bargain and sale and 
 enrolment and the statute of Uses, which was not so — " Sed Jones 
 semble que per bon construction reddend' singula singulis, ceo est 
 
 le Blatdi V. WUdes, 1 Atk. 420. 17 W. Jones, 327. Cro. Car. 335.
 
 LAW TUACTS. 12.5 
 
 bon, car Testate pur vie del' feme passe per I'estatute tie uses, et le 
 reversion per le vendition, sed ceo ne sist riens, I'un voy ou Tauter." 
 Though this case is thus express as to the operation of the deed 
 executed by the executrix ; yet we find that the heir-at-law did 
 actually release to the purchaser, which shows the opinoin of lawyers 
 in that day : and the Court did not say that such concurrence was 
 nugatory. — In Daniel v. Upley *^ the devise was to the executor, 
 which therefore takes the case out of the point in debate ; and it will 
 be observed that Littleton's case is that of a devise to executors to 
 alien and sell. The word alien means specifically to convey, but 
 that construction would not upon principle assist the case unless 
 the executors have an estate to convey. 
 
 In Warneford v. Thompson'^ the testator willed that all his lands 
 and houses, whether freehold or copyhold, should continue to be held 
 or otherwise disposed of in such manner as his executors should think 
 most conducive to the trusts of the will. The executors sold, and it 
 was the opinion of an eminent conveyancer, (as stated in the argu- 
 ment) that the executors could not make a good title without the con- 
 currence of the heir-at-law : and some question was made as to the 
 validity of the power of sale, on account of the obscure and untech- 
 nical manner in which it was expressed. But the Master of the 
 Rolls was clearly of opinion that there was a power of sale. It was 
 true, there was no estate devised to the plaintiffs in the freehold 
 estate : but there was a power to sell. Till that power was executed 
 the estate descended to the heir-at-law ; but as soon as the power 
 was executed, the legal estate was in the vendee. — The words in this 
 will would almost amount to a devise. "To hold and dispose of" are 
 words importing an estate, but it is submitted that the grounds upon 
 which his Honour placed his decision were not strictly conformable 
 to the rules of real property. Mr. Justice Lawrence has said that a 
 power of sale does not of itself give the legal property, and that 
 where a man directs his executors to sell, till sale the land descends 
 to the heir-at-law, and he may enter.^" This it is true does not ex- 
 pressly decide that after the sale the legal estate is outstanding in the 
 heir; but if it be true that the power of sale does not give the 
 legal property [neither to the executors nor the vendee] that conse- 
 quence is inevitable. 
 
 The exact question has, it is believed, never occupied the attention 
 of the Court, but a late case ^^ has afforded strong grounds for infer- 
 
 18 Latch. 9. 19 3 Ves. 513. =^" 3 East, 557. 
 
 21 Bentham v. Wiltshire, 4 IMadd. 44. et vide S. L. Newton v. Bennett, 1 Bro. 
 Ch. Ca. 137.
 
 126 LAW TRACTS. 
 
 ence. The case was this : A testator devised the estate in question 
 to one for her hfe provided she did not marry, and directed that 
 " after her decease the estate should be sold " (not saying by whom) 
 to the highest bidder by public auction, and the money or monies 
 arising from such sale thereof to be disposed of amongst certain 
 illegitimate children in the will named. After the death of the 
 tenant for life the executors sold the estate, and the purchaser ap- 
 proved of the title ; but in the draft conveyance he made the heir-at- 
 law a party. The Master settled and approved of the draft, and 
 reported his opinion that the heir was a necessary party. — To this 
 report exceptions were taken on the ground that the heir was not a 
 necessai-y party to the conveyance. After the citation of various 
 authorities, the counsel in support of the exceptions contended that 
 all the authorities proved, that where a sale is directed for payment of 
 debts or legacies and no person is named to sell, the executors may 
 sell; and thus the difficulty of getting a reluctant heir to join in the 
 sale was obviated, for the testator having disinherited his heir could 
 never mean him to act as trustee. On the other side the rule was 
 stated to be, that if there is no power of sale given to any one by 
 name, the heir-at-law becomes a trustee for that purpose, and he 
 must sell ; and consequently it is necessary that he must join in the 
 conveyance : The Vice Chancellor — " To enable executors to sell, 
 the power must either be expressly given to them, or necessarily to be 
 implied from the produce being to pass through their hands in the ex- 
 ecution of their office, as in payment of debts and legacies ; but here, 
 the executors have nothing to do with the produce of the sale, nor 
 have they any power of distribution with respect to it. It is a further 
 circumstance that the sale is directed to be made after the death of 
 the tenant for life, who was one of the executors ; there is here there- 
 fore no power of sale in the executors." The exceptions were 
 consequently overruled. His Honour seems to have adopted Lord 
 Coke's opinion, that if executors had been named it would not have 
 been necessary to have called upon the heir to execute the trusts for 
 sale. But would it not have been necessary to have called upon him 
 to convey the legal estate after the power of sale had been exer- 
 <;ised ? This question was not affiacted by the lastly mentioned 
 case except incidentally, which cannot be relied on. The conse- 
 quence of his Honour's decision was, that the purchase went off, the 
 heir beinjr absent and not to be found.^^ 
 
 22 1 Jac. and \V. 193.
 
 LAW TRACTS. 127 
 
 In a subsequent case-^ a testator devised certain lands unto his chil- 
 dren, the same to be sold when the executors and trustees of his will 
 should see proper to dispose of it, and the money arising out of the 
 said lands and tenements to be equally and severally divided among 
 his above named children. — It is plain, said his Honour the Vice 
 Chancellor, that the testator intended that the trustees should have an 
 immediate power of sale. Some of the children were infants, and 
 not capable of signing receipts. I must therefore infer that the 
 testator meant to give to the trustees the power to sign receipts, 
 being an avithority necessary for the execution of his declared pur- 
 pose. — The inference from this case is, that the trustees had power to 
 convey the legal estate as well as to sell and give receipts, for other- 
 wise the sale could not have been completed untill the eldest child 
 became of age. 
 
 Another will in which property was directed to be sold but no 
 • person named to carry it into execution, has since come before the 
 court.-"* The money not being to be applied for debts or legacies, the 
 question was whether the heir, the trustees, or the executors were 
 the proper persons to sell. The Master of the Rolls said, a legal 
 conveyance could not be made without the heir, and decreed that he 
 was the person to sell although he was a minor. — The question has 
 not since occurred ; and the standing authorities and impression of the 
 profession is certainly against the conclusion proposed in this note. 
 But it is submitted that the origin of the doctrine is founded in mis- 
 take, and it is at least questionable whether a court of law (which has 
 not yet fairly expressed an opinion on the subject) would view the 
 question in the same light as it appears now to be looked upon in a 
 court of equity. It should also be remembered that the heir, if not 
 completely disinherited, may tender to the executors the worth of the 
 land ; and if they refuse to accept it, he may enter upon the land and 
 oust them ; and in equity he may prevent a sale by paying off a charge ; 
 and may by an injunction, it is apprehended, prevent the sale on 
 offering to bring the money into court.^^ — The practical result is, 
 never to dispense with the concurrence of the heir-at-law where it 
 can possibly be obtained. 
 
 With respect to the mode of assurance, it is submitted that Little- 
 ton's precept respecting the feoffment could not be followed at this 
 day. The feoffinent he alluded to was, it is apprehended, a feoff- 
 ment with livery in the usual way, and passed an estate, as distin- 
 
 23 Sowarsby v. Lacy, 4. Madd. 142. 24 Patton v. Randall, 1 Jac. & W. 189. 
 25 2 Pres. Shep. Tou. 449.
 
 128 LAW TRACTS. 
 
 guished from an instrument which merely designates a person. The 
 feoflhient under tlie power in question would operate merely as an 
 appointment and not as a feoffment. There is no custom to give it 
 any other effect ; so with respect to the bargain and sale, which is said 
 by some writers to be a bargain and sale at the common law. The com- 
 mon law recognizes but one species of instrument of that description ; 
 and it is a singular mis-application of terms to denominate that a 
 bargain and sale which has not one feature resembling it. If the 
 instrument be in reality a bargain and sale, it will require enrolment ; 
 if it be not so, the mere use of the words " bargain and sell," 
 though required by a power, will not bring it within the Statute of 
 Enrolment. Those words will be considered as substituted for the 
 more common words " direct, limit and appoint." ^^ It is in fact an 
 appointment, though effected by the words "bargain and sell."-'' To 
 call it a bargain and sale at common law is a violent mis-application 
 of terms and productive of great confusion. However, if it can be 
 maintained as a bargain and sale, it is quite clear that it requires 
 enrolment, for the statute enacts that after the year 1536, *' no man- 
 ors, lands, tenements or other hereditaments shall pass, alter or 
 change from one to another, whereby any estate of inheritance or 
 freehold shall be made or take effect in any person or persons, or any 
 use thereof to be made, by reason only of any bargain and sale 
 thereof, except the same bargain and sale be made by writing in- 
 dented, sealed and enrolled in one of the King's Courts of Record 
 at Westminster." -^ 
 
 2« Ingram v. Pai-kcr, Raym. 239. 2; 3 Kcl). 511. 538. 28 2^ Ilcn. H. c. IG. 
 
 THE END OF NO.
 
 LAW TRACTS. 
 
 No. VI. 
 
 OF THE SEVERAL REMEDIES OF EXECUTORS^«> 
 
 FOR 
 
 THE RECOVERY OF RENT, 
 
 AND PARTICULARLY 
 
 Of the Remedies given to them hy the Stat. 32 H. 8. c. 37. 
 
 BY A MEMBER OF THE INNER TEMPLE. 
 
 The object of the present tract is to present a concise view of the 
 several remedies which Executors have for the recovery of rents due 
 to them in their representative capacity ; and particularly of the 
 remedies given to them by the Statute of the 32 H. 8. c. 37. I am 
 induced to devote a considerable space to the examination of this 
 statute, by the circumstance of its having been a subject of discus- 
 sion in the Court of Common Pleas in three recent cases, which ap- 
 pear to me to deserve particular remark. It was my original intention 
 to have made this statute the only subject of my inquiry, but I am 
 inclined to think that I shall render this paper more generally useful 
 and acceptable to my readers, by introducing a few prefatory obser- 
 vations on the remedies of executors for the recovery of rents at 
 common law. 
 
 The remedies for the recovery of rent in arrear are two-fold, 
 viz. action and distress. Of real actions it is not my intention 
 to speak ; inasmuch as an executor is not the real representative 
 of the deceased. An executor is he, to whom the execution of 
 
 (a) The following observations apply equally to the case" of Executors and Ad- 
 ministrators, but I have thought it better to omit mention of the latter, for the 
 sake of brevity. 
 
 P
 
 130 LAW TRACTS. 
 
 a last will and testament of personal estate is, by the testator's 
 appointment, confided.' He is therefore the personal representative 
 of the deceased, and lias for the most part the same personal actions, 
 ■which the deceased Inmself might have had in his lifetime ;- wherever, 
 therefore, the testator could at the time of his death have an action 
 of delit for the recovery of rent in arrear in his lifetime, his executor 
 mav have the same remedy : so where the deceased might at the time 
 of his death have maintained assumpsit or covenant for arrears of 
 rent due to him, his executor may have the same. The reason why 
 the executor is enabled to maintain these actions is, that the rent in 
 arrear at the lessor's decease does not descend to the heir with the 
 reversion in the land, but sinks into and becomes part of his personal 
 estate, and is assets in the hands of his executor for payment of debts, 
 legacies, &c. ; and as the executor is accountable for the rent due 
 to the testator at his death, it is necessary that he should have a 
 remedy to recover it. However, to give the executor a title to the 
 rent, it must have become wholly due in the testator's lifetime, for 
 if it become due one hour only after his death, the entire rent from 
 the preceding day of payment will go to the heir, together with the 
 reversion, and not to the executor, unless the reversion to which the 
 rent is incident be for years. Whether rent accrues due in the 
 testator's life or not, is sometimes a question of dispute. It is held, 
 that if the testator die after sunset, and before midnight on the day 
 on which the rent is payable, the executor cannot claim the rent 
 falling due on this day, but it will go to the heir, because the rent is 
 not due till the last moment of the natural day ; and as the testator 
 could not claim it in his lifetime, so neither can his personal repre- 
 sentative after his decease.^ If the rent was due on a lease made by 
 a tenant for life, it has been held that, if the lessor lived till the 
 beginning only of the rent day, his executor should have the rent 
 rather than it should be lost.'* But now, by the statute of the 
 11 G. 2. c. 19. s. 15, after reciting the inconveniences arising where 
 the death of a lessor having only an estate for Hfe in the lands 
 demised happens before or on the day on which any rent is reserved 
 or made payable, it is enacted *' that where any tenant for life shall 
 happen to die before or on the day on which any rent was reserved 
 
 1 Toller's Executors, 33. 
 
 2 Rent due to a deceased husband on a lease of his wife's chattels real reserving 
 rent to himself and wife, forms an exception, and will go to the surviving wife, 
 and not to the husband's executors. See Roper on the Law of Husband and Wife, 
 vol. i. p. 171. 3 Duppa V. Mayo, 1 Saund. 287- 
 
 4 10 Rep. 127, b. ; 2 Saund. 288, e. in notis.
 
 LAW TRACTS. 131 
 
 or made jjayable upon any demise or lease of any lands, tenements, 
 or hereditaments, which determined on the death of such tenant for life, 
 the executors or administrators of such tenant for life shall and 
 may, in an action on the case, recover from the under-tenant or 
 under-tenants of such lands, tenements, or hereditaments, if such 
 tenant for life die on the day on which the same was made payable, 
 the whole, or if before, then a proportion, of such rent according 
 to the time such tenant for life lived, of the last year or quarter 
 of a year, or other time in which the said rent was growing due as 
 aforesaid, making all just allowances, or a proportionable part 
 thereof respectively." 
 
 It will be observed that the statute speaks of those leases only 
 which determine on the death of a tenant for life, so that it does not 
 extend to leases made under a power and which have continuance 
 notwithstanding the death of the tenant for life.^ But it has been 
 held to extend to a lease made by a tenant in tail after possibility of 
 issue extinct f so it has been held to extend to a lease by tenant in 
 tail,'' and to the case of a demise from year to year by the guardians 
 of an infant tenant in tail.s These cases seem to determine that the 
 expression tenant for life is appUcable generally to all persons whose 
 interests determine with their life. In the case of Wykham v. 
 Wykham,^ it is asked by Mansfield C. J. whether it had ever been 
 determined that the executor of a tenant pur autre vie is entitled to 
 recover a portion of the rent from the last quarter day under this 
 statute; and Mr. Evans in his Collection of Statutes, in a note on this 
 section, observes that the language of the statute will not admit of 
 such an interpretation ; and I apprehend it will not, because the 
 statute refers only to the case of a lease determined by the death of 
 a tenant for life ; and a lease made by a tenant pur autre vie is not 
 determined by his death, but by the death of cestui que vie. 
 
 In one case at common law, the executor might have an action of 
 debt for arrears of rent due in the testator's lifetime, when the 
 testator himself could not have such action : as, if a lease had been 
 made for the hfe of the lessor rendering rent, the lessor could not in 
 his life have an action for the recovery of arrears of rent, because 
 the estate of freehold was continuing ; and the common law would 
 not suffer a real injury (for such the non-payment of rent on a free- 
 hold demise was considered) to be remedied by an action that is 
 
 5 Earl of StaflFord v. Wentworth, Prec. Ch. 555. " Paget v. Gee, Ambl. 1!)8. 
 
 7 Whitfield V. Pindar, cited in Vernon v. Vernon, 2 B. C.C. 659. 
 ^ Vernon r. Vernon, idem sup. ^ 3 Taunt. 331.
 
 \32 LAW TUACTS. 
 
 merely personal :'•' but the estate of freehold being determined by 
 the lessor's death, his executor might maintain debt for the arrears : 
 so, althougli the grantee of a rent-charge for his own life could not 
 maintain an action of debt for the arrears, his executor might after his 
 decease. This distinction, so far as relates to rent reserved upon 
 leases for life, is done away by the statute 8 Ann. c. 14. s. 4, by 
 which it is enacted " that it sliall be lawful for any person or persons 
 having any rent in arrear or due upon any lease or demise for life or 
 Kves, to bring an action of debt for such arrears of rent, in the same 
 manner as they might have done, in case such rent were due and 
 reserved upon a lease for years." This enactment only extends to 
 cases between landlord and tenant. Therefore a devisee of an 
 annuity or yearly rent charged upon land, and payable to the devisee 
 during the life of B, cannot during B's life, maintain debt for the 
 arrears. "^ 
 
 In order to enumerate all the instances in which an action may 
 be maintained by an executor for rent arrear in his testator's lifetime, 
 it would be necessary to inquire when the testator might himself 
 maintain an action — an inquiry much too extensive for so small an 
 undertaking as the present. I shall therefore content myself with 
 repeating, that wherever the deceased might at the time of his death 
 have brought a personal action for the recovery of rent in arrear, 
 there in general the same action may be brought by his executor.'^ 
 
 The remedy of the executor by distress is however by no means 
 coextensive with his remedy by action. Perhaps I shall be correct 
 in laying it down as a maxim, that an executor as such cannot at 
 common law distrain for rent due to his testator. The only cases in 
 which he can distrain will be found to depend on their own pecu- 
 liar circumstances, and to form exceptions to, and not examples of, 
 a general rule. 
 
 Distress for rent is a remedy given by the common law to the 
 landlord, or to speak in the language of feudal times, to the lord, 
 enabling him to enter on the lands held of him by his tenant ; and 
 to seize the goods there found as a pledge for the satisfaction of the 
 arrears of rent due in respect of the same land. Distress is incident 
 to the reversion : wherever the right to tlie rent in arrear and the 
 reversion are in the same person, there distress may be had for the 
 arrears ; but where, as in the case of a lease for years by a tenant in 
 fee, the rent in arrear is due to one person, viz. the executoi', and the 
 reversion in the land is in another, viz. the heir or devisee, there dis- 
 
 » 3 Bl. Comm. 232. ^0 Webb v. Jiggs, 4 M. & S. 1 13. n Sec ante, p. 130.
 
 LAW TRACTS. 13o 
 
 tress cannot be had at common law : not by the hen* or devisee, for he 
 is not entitled to the rent in arrear ; nor by the executor, for he has 
 not the reversion. There are only two cases of which I am aM'are, 
 in which an executor can at common law distrain for rent due to his 
 testator, viz. first, where lessee for years underlets for a part of his 
 term, leaving a reversion in himself for years ; on his death within 
 the term granted by the underlease, the arrears of rent together 
 with the reversion for years will vest in his executor, who in respect 
 of that reversion may distrain for the arrears. It is evident that 
 the executor in this case can distrain, not merely because he is 
 entitled to the rent arrear as executor, but because he is possessed 
 of the reversion. The other case is, where a rent charge is granted 
 to a person for years, with power to him and his executor to distrain 
 for it, and in this case the executor derives his power to distrain from 
 the words of the grant. I have before observed that the executor 
 of a tenant for his own life could maintain an action of debt at 
 common law for arrears of rent due in his testator's lifetime. So 
 also the executor of a tenant ^jwr mitre vie could, after the death of 
 cestui que vie, maintain debt for arrears of rent due to his testator 
 in the life of cestui que vie. 
 
 But at the common law, neither the real nor personal representa- 
 tives of a man seised of a rent in fee simple, fee tail, or for the life of 
 another dtu-ing the life of cestui que vie, had any remedy either by 
 action or distress for the arrearages incurred in the life of the owner 
 of such rents. 
 
 However by the S% H. 8. c. 37, (which Lord Coke calls a right 
 profitable statute,) after reciting that by the order of the common 
 law the executors or administrators of tenants in fee simple, tenants in 
 fee tail, and tenants/or term of lives ^- of rents services, rents charges, 
 rents seeks, and fee farms, had no remedy to recover such arrearages 
 of the said rents or fee farms as were due unto their testators in their 
 lives, nor yet the heirs of such testator, nor any person having the 
 reversion of his estate after his decease, might distrain, or have any 
 lawful action to levy any such arrearages of rents or fee farms, due 
 imto him in his life as aforesaid, it is enacted " that the executors and 
 administrators of every such person or persons, unto whom any such 
 rent or fee fapm is or shall be due, and not paid at the time of his 
 death, shall and may have an action of debt for all such arrearages* 
 against the tenant or tenants that ought to have paid the said rents 
 
 1- Lord Coke observes that the preamble concerning executors of tenants for 
 life is to be intended of tenants ;«<r autre vie. Co. Litt. 162, a.
 
 134 LAW TRACTS. 
 
 or fee farms eo being behind in the Ufe of their testator, or against 
 the executors and administrators of the said tenants : and also 
 furthermore, that it shall be lawful to every such executor and 
 administrator of every such person or persons unto whom such rent 
 or fee farm is or shall be due, and not paid at the time of his death 
 as aforesaid, to distrain for the arrearages of all such rents and fee 
 farms, upon the lands, tenements, and other hereditaments, which 
 were charged with the payment of such rents or fee farms, and 
 chargeable to the distress of the said testator, so long as the said 
 lands, tenements, or hereditaments continue, remain and be in the 
 seisin or possession of the said tenant in demesne, who ought imme- 
 diately to have paid the said rent or fee farm so being behind to the 
 said testator in his life, or in the seisin or possession of any other 
 person or persons claiming the said lands, tenements, and heredita- 
 ments, only by and from the same tenant by purchase, gift or descent, 
 in like manner and form as their said testator might or ought to 
 have done in his lifetime ; and the said executors and administrators 
 shall for the same distress lawfully make avowry upon their matter 
 aforesaid." 
 
 The 2d section it is not material to notice. 
 
 The 3d section enables a husband seised in right of his wife of 
 any estate in fee simple, fee tail, or for life in any rent, and Ms 
 executors, to bring an action of debt for the arrearages accruing in 
 the wife's life,'' and it further enables the husband after his wife's 
 death to distrain for the. sjiid arrearages. 
 
 By the 4th section it is provided " that if any person shall have any 
 rent or fee farm for the life of any other person, and the said rent or 
 fee farm shall be behind in the life of the cestui que vie, and after the 
 cestui que vie die ; then he unto whom the said rent or fee farm was 
 due, his executors or administrators, shall have an action of debt 
 against the tenant in demesne that ought to have paid the same 
 when it was first due, his executors and administrators, and also 
 distrain for the same arrearages upon such lands and tenements, out 
 of which the said rents or fee farms were issuing and yjayable, in 
 such like manner and form as he ought or might have done, if such 
 person or persons by whose death the aforesaid estate in the said 
 rent was determined and expired, had been in full life and not dead 
 — and the avowry for the taking of the same distress to be in man- 
 ner and form aforesaid." 
 
 i-J Including arrears due before marriage as well as those accruing during the 
 coverture. Co. Litt. 162 b.
 
 LAW TRACTS. lg|> 
 
 It will be seen that the statute gives a double remedy in some 
 cases to persons who had before none, — viz. the double remedy of 
 debt and distress, to executors of tenants in fee simple and tenants 
 in fee tail of rents ; to executors of tenant pur autre vie of a rent 
 during the life of cestui que vie ; and to the husband after death of 
 his wife for rent accrued due to his wife before marriage. It some- 
 times operates by giving a further remedy in addition to one existing 
 at common law, viz. the remedy of distress in addition to the former 
 remedy of action of debt, to executors of a grantee for his own life of 
 a rent ; to executors of tenant pur autre vie after the death of cestui 
 que vie ; and to the husband in right of his wife for rent accrued 
 during coverture : for although Sir Edward Coke in his Commentary 
 on Littleton observes, " that the preamble concerning tenant for life 
 is to be intended of tenants pur autre vie so long as cestui que vie 
 liveth, yet the enacting part of the statute has a more extensive 
 operation : and it has been held that the statute being remedial 
 extends to the executors of all tenants for life ; as well to those 
 executors who before the statute were entitled to action of debt, as 
 to those executors who had no remedy whatever." '^ 
 
 The action of debt for rent under this statute, must be brought 
 against the tenant who ought to have paid the same, or against his 
 executors or administrators ; and the distress (in all cases except 
 tensincy pur autre vie of a rent) is to be taken on the lands charged 
 with the rent, so long as they are in the hands of the tenant who 
 ought to have paid the same rent, or of any person claiming by and 
 from the same tenant, by purchase, gift, or descent ; that is, by title 
 derived from or through such tenant, and not by elder title, or title 
 paramount, such as is the title of the lord claiming by escheat.^^ 
 
 The following instance will serve as an example to show the differ- 
 ence between the first and last sections of this statute, as to the 
 persons in whose hands the land charged continues subject to dis- 
 tress. If A makes a lease to B for life, remainder to C for life, re- 
 mainder to D in fee, neither C nor D claim under B the first tenant 
 for life. It is evident that they claim independently of B, and there- 
 fore the executors of A cannot distrain upon the land in the posses- 
 sion of C or D, for rent accrued in the life of B.^^ But if A, seised 
 of land in fee subject to a rent charge to B for the life of C, lets the 
 land to D for life with remainder to E in fee, and C dies, rent being 
 in arrear, and afterwards D dies, — in this case, although E does not 
 
 1^ Hoole V. BeU, 1 Ld. Raym. 172. See also Co. Litt. 18th edit. 162 b, n. I & 4, 
 15 Co. Litt. 162 b. 16 Ibid.
 
 130 LAW rUVCTS. 
 
 claim under D the tenant for life, who ought to have kept down the 
 rent charge ; yet as B might in the Hfetime of C have distrained for 
 the rent in arrear, so after tlie deatli of C he and his executors, by 
 force of the wording of //re Ath section of this statute, may distrain 
 the land in the possession of E for the same arrearages.'' 
 
 Lord Coke interprets the words " in like manner and form as the 
 said testator might or ought to have done in his lifetime," to mean 
 that the executor should have remedy under this statute in those 
 cases only, in which the testator could have had some kind of re- 
 medy for the same rent at the time of his death : for instance, if gran- 
 tee for life of a rent charge assigns his rent and dies,'® his executor 
 could not have debt for arrears due before the assignment, because 
 the only remedies of the testator for the rent during the continuance 
 of the estate of freehold were a real action and distress, and of these 
 he deprived himself by the assignment of his estate of freehold ; and 
 so, having no remedy left for the recovery of the arrears, his execu- 
 tors could have none after his death. But if the testator in the 
 above case had surrendered his life estate to him in reversion, it 
 would be otherwise ; for the freehold being determined by the sur- 
 render, the real contract would be dissolved into personalty, and 
 the testator would become entitled to the personal action of debt : 
 and so his executor would be within the benefit of this statute.'^ in 
 cases between landlord and tenant, before the above-mentioned 
 stat. 8 Ann. c. 14, if a person to whom rent was due on a lease 
 made by him of land for life, had assignpd hi<? reversion and died, 
 his executor would have been without remedy for the reason above 
 given ; but as since the passing of this statute a lessor having rent 
 in arrear due on a lease for life may, notwithstanding the continuance 
 of the freehold, have the personal action of debt for the arrears, 
 there seems to be no reason why he should not after assignment of 
 his reversion have the same remedy for the arrears due before, and 
 why his executors should not have the same remedy after his 
 decease. But it appears to m« very doubtful whether the executors 
 could in such case distrain for these arrears under the stat. 32 H. 8. 
 c. 37; for though since the stat. 8 Ann. c. 14. a person having rent 
 due to him on a freehold lease, of which he has assigned the rever- 
 sion, is not without remedy at the time of his death, yet it is not 
 such a remedy as existed in the like case at the time of passing 
 the statute of 32 H. 8. 
 
 '7 Co. Litt. 162 b. "« 4 Co. 506. 19 See Co. Litt. 162.
 
 LAW TRACTS. 137 
 
 It has been seen, that where the testator was seised of a rent for 
 any estate of freehold, there his executor may under the last-men- 
 tioned statute distrain for the rent in arrear at his death ; but it has 
 been held that the statute does not extend to copyhold rents ; -** be- 
 cause, though by custom the copyholder has an estate as indefeasi- 
 ble as a freeholder, yet in strict contemplation of law, he holds at 
 the will of his lord. But if one seised of a manor in fee grants a 
 rent charge out of it, and afterwards a subsequent lord of the manor 
 (claiming under the grantor of the rent charge) grants a copyhold 
 to be held of the same manor, the copyholder will hold the land 
 charged with the rent : for the rent does not depend on the weak 
 estate of the copyholder, but on the seisin of the lord.^^ It has also 
 been held that the statute does not extend to the case of a creditor 
 of tenant for life holding by elegit. "^"^ 
 
 Whether an executor may distrain for arrears of rent arising out 
 of a lease for years, appears to be a question not yet finally decided. 
 Lord Coke says, " If a man make a lease for life or lives, or a gift in 
 tail reserving rent, this is a rent service within the statute ;" from 
 which it may be inferred that he thought a rent reserved upon a lease 
 for years was not within it : and Mr. J. Buller in quoting this passage 
 adds — '' I apprehend it is not, for the landlord is not tenant in fee, 
 fee tail, or for life of such a rent ; and it is the executors of such 
 only who are mentioned in the act."-^ In accordance with this 
 opinion is the case of Turner v. Lee,-'' where defendant avowed as 
 executor for the arrears of a rent charge granted to the testator for 
 years if he so long lived ; and on issue taken on quod non concessit, it 
 was found for the avowant — after verdict, and motion in arrest of 
 judgment, it was resolved that it is not within the statute : and though 
 the reason there given for this resolution, viz. that the statute gives 
 remedy only where the executor had none at the common law, cannot 
 be supported,-^ yet, as observed by Mr. Bradby, in his Treatise on 
 the Law of Distresses, there is a much better reason for this deci- 
 sion ; namely, that terms for years are not mentioned in the statute. So 
 in the case of Renvin v. Watkin,^^ where A, seised in fee of land let 
 to the plaintiff for 21 years, and afterwards dying seised of the re- 
 version, the defendant administered, and distrained for half a year's 
 rent due to the intestate, for which he avowed: on demurrer to 
 the avowry, it was objected, that there was not any privity of estate 
 
 20 Appleton v. Doiley, Yelv. 135. 21 Clifton and Cordell's case, 2 Leon. 153. 
 2:^ Bull. N. P. 56. 23 Ibid. 57- 24Cro. Car. 471. 
 
 2S See ante, p. 135. 2C m. 5. (i. 2. B. R. Mss. Sclw. N. P. 6th ed. 678. 
 
 Q
 
 \iiS LAW TRACTS. 
 
 between the administrator and the lessor ; and therefore the avowry, 
 uliich is in the realty, could not be maintained by him : and it was 
 obsicrved that this was a case out of the stat. o2 H. 8. c. 37, for 
 that only gives a remedy by way of distress for rents of freehold ; 
 and of this opinion seemed the Court. 1 Inst. 162 a. 4 Rep. 50. Cro. 
 Car. 471. Latch, 211. and Wade v. Marsh, were cited. But in 
 Powell V. Killick,-'^ a case at the Middlesex sittings, M. 25. G. 2. where 
 in trespass for entering plaintiff's house, and carrying away his goods; 
 upon Not guilty pleaded, defendant gave in evidence, that he was 
 executor of A, who had leased to plaintiff for years; and that he 
 distrained for rent due to his testator at the time of his death : it 
 was objected for the plaintiff, that an executor was enipowered to 
 distrain only by virtue of the statute in question, and that this was 
 not a case within the statute ; but Lee C. J., before whom the cause 
 was tried, overruled the objection, and said this was a rent service, 
 the testator in his lifetime being seised in fee, and the plaintiff 
 holding under a tenure which implied fealty,-'^ and in consequence 
 the plaintiff had a verdict. This Nisi Prius case is I believe the first 
 decision that the stat. -32 H. 8. c. 37. extends to rents reserved on 
 leases for years ; but it has the support of three recent decisions in 
 the Court of Common Pleas, namely the cases of Meriton v. Gilbee,-^ 
 Martin r. Burton,-^ and Staniford v. Sinclair.^^ In the first of these 
 cases, Meriton v. Gilbee, the defendant avowed as administratrix 
 of William Gilbee, because one J. Gilbee for a certain tme until the 
 death of the intestate, held the locus in quo as tenant to the intestate 
 under a demise, at a certain yearly rent ; that the intestate was 
 seised in fee of the /ocus in quo, and being seised died ; and thereupon 
 administration was granted to the defendant, who then avowed dis- 
 training in the locus in quo for rent in arrear in the lifetime of the 
 intestate ; the locua in quo being charged with the payment thereof, 
 and before and at the time of the distress continuing and being in 
 the possession of the plaintiff only by and from James Gilbee as his 
 tenant thereof, 'lliere was a second avowry nearly similar to the first. 
 The plaintiff pleaded separately to each avowry : 1st, Non tenuit. 
 2dly, No rent arrear ; and then to both avowries, a 5th plea. That 
 William Gil!)ee was seised in fee of the locus in quo, and being 
 seised died intestate, whereupon the locus in quo decended to one 
 other W. Gilbee, the son and heir of the said W. G. mentioned in 
 
 '« Bull. x\. P. 57. Selw. N. P. 679. 
 
 2" See post, p. 141. -'« 2 B. Moore, 48. 8 Taunt. 159. 
 
 •-'» 1 B. and B. 279. ■^<^ 2 Bingh. 193.
 
 LAW TRACTS. 139 
 
 the avowries, and thereupon the said W. G. the son became and 
 was, and at the time of the plea was seised of the locus in quo in fee. 
 The defendant joined issue on the four first pleas, and demurred 
 generally to the last. At the assizes, the plaintifFconsented to strike 
 out the last plea, without prejudice to the legal objections to the 
 avowries, and a verdict was found for the defendant, subject to an 
 award as to the amount of rent in arrear. The arbitrator made his 
 award, stating that a certain sum was due to the intestate from James 
 Gilbee on a demise to Jmn for twenty-one years, and judgment was 
 entered for the amount awarded. A rule having been obtained to 
 show cause why the verdict and judgment should not be set aside 
 and judgment entered for the plaintiff, or why the last plea in bar 
 or the demurrer thereto should not be restored, on the ground that 
 this was not a case within the stat. 32 H. 8. c. 37, as the arbitrator 
 had determined that the arrears were due on a demise for years : 
 The Court held, that as the tenancy did not appear on the face of 
 the avowries to be for years, and that as it was not necessary for the 
 defendant to show that the land was held by purchase, gift or descent, 
 such avowries were sufficient, and the rule was consequently dis- 
 charo-ed.^^ In the second case, Martin v. Burton, the defendant 
 made cognizance that the plaintiff for a certain time, and from thence 
 until the death of J. Arden, held and enjoyed the locus in quo as 
 tenant to the said J. Arden deceased, at a yearly rent ; and because 
 15/. of the said rent was due to the said J. Arden deceased, in his 
 lifetime, and continued in arrear from the plaintiff to the defendant 
 as executrix, defendant acknowledged distraining in the locus in quo 
 for the said rent arrear. After verdict for the defendant, a rule 
 nisi was obtained, to enter judgment for the plaintiff 7ion obstante 
 veredicto, on the ground that the defendant did not bring herself 
 distinctly within the terms of the statute in question, which it was 
 contended a party acting under a statutable authority was bound to 
 do. But the Court discharged the rule, Dallas C. J. observing 
 that the point in question was decided in Meriton v. Gilbee ; and 
 Richardson J. said, that an appHcation to enter up judgment non 
 obstante veredicto cannot be entertained, unless it appears upon re- 
 cord that the party making cognizance has no title. The third case, 
 Staniford v. Sinclair and others, was argued on general demurrer. 
 The avowry demurred to was nearly similar to that in Martin v. 
 Burton ; the only substantial difference being, that the defendants 
 
 31 Mr. J. Biirrough expressed his opinion that the case of Powell v. Killick 
 was rightly decided. xAIr. J. Park declined giving an opinion on that point.
 
 1 10 LAW TRACTS. 
 
 in tlie present case in their avowry averred, that the plaintiiFremain- 
 eil in possession of the locus in quo,//o/« the death of the testator till 
 the time of the distress made. The objections made to the avowry 
 were, tliat the distress appeared to be made after the determination 
 of tlie demise — tliat the possession of the plaintiff from the time of 
 the testator's death till the time of the distress made, was not suffi- 
 cient to authorize a distress — that some privity was necessary between 
 the party distraining and the party distrained — that the 11 G. 2. 
 c. ly. does not extend to distress by executors for freehold rent 
 under the 32 H. 8. c 37, — and that the avowry was not sufficient 
 under the latter statute, because it did not appear that the testator 
 was seised of any estate of freehold in the rent distrained for. But 
 the Court overruled the demurrer for the following reasons, viz. — 
 That since the statute of the 11 G. 2. it was sufficient for the 
 avowant to show a prima facie right ; and if there be any answer, it 
 is for the plaintiff to plead it in bar. That the avowants in the 
 present case had shown a prima facie right, the avowants having 
 ' shown that the plaintiff was in possession, and the rent due. That 
 the contrary not being alleged, it must be taken that the testator 
 was owner of a rent in fee : and lastly, that the case of Powell v. Kil- 
 lick had already decided that executors may distrain for rent in 
 arrear in their testator's lifetime, on a lease for years made by tenant 
 in fee.^^' 
 
 Is it then to be considered as a settled point, that on a lease 
 for years made by a tenant in fee simple, his executors may le- 
 gally distrain for rent arrear in his lifetime, and that on a distress 
 for this rent they may avow generally under the stat. 11 G. 2. ? 
 I confess that notwithstanding the oi^inions expressed by the learned 
 Judges who presided in the three last-mentioned cases, I find it 
 difficult to come to this conclusion. It will have been observed that 
 the two first of these cases arose after verdict, and the last on general 
 demurrer ; and that although the learned Judges expressed their 
 concurrence in the doctrine laid down in Powell v. Killick, yet the 
 judgment in each of the three cases seems to have proceeded on the 
 
 3^ There are several mistakes in the report of this case ; for instance, Mr. Ser- 
 jeant Taddy is made to say that rents in fee are not mentioned in the stat. 32 
 H. 8.: and again, the C. J. is stated to have said in the commencement of his 
 opinion, that if the plaintiff in this case were entitled to judgment, the executors 
 of a lessor who died seised of a freehold rent would have no remedy for arrears 
 accruing in the testator's lifetime, until a new act of parliament should be passed ; 
 whereas the executors of a person seised of a freehold rent are within the very 
 words of the 32 H. 8. c. 37. s. 1.
 
 LAW TRACTS. 141 
 
 ground, that tlie defendant had stated a, prima facie title to distrain, 
 which was established by the verdict in the two first cases, and ad- 
 mitted by the general demurrer in the last. As it was not necessary 
 for the Judges, in order to arrive at this conclusion, to determine the 
 general question of the right of executors to distrain for rent reser- 
 ved on a lease for years, or to determine that the prima facie state- 
 ment just referred to will be in all cases sufficient, I shall take the 
 hberty to investigate both these points. 
 
 First, with respect to the general right of executors to distrain for 
 rent arising out of a term of years. — 
 
 In making this inquiry I do not think it necessary to go into 
 the principles of distress at common law. It must be admitted that 
 this right, if it exists, (except in the cases before noticed ^^) is founded 
 on the stat. 32 H. 8. c. 37. It will be remembered that this statute 
 speaks of executors and administrators, of tenants in fee simple, fee 
 tail, and for term of life of rents ; and it enacts that the executors 
 and administrators of every stick person shall have the remedies 
 thereby given ; and I have before referred to the opinion of Mr. J. 
 Buller, and the case of Turner v. Lee, as authorities to show that 
 rents reserved on a lease for years are not within this statute. In the 
 case of Powell v. Kilhck, the only question raised appears to have 
 been whether the rent then in question was a rent service ; and Lee 
 C. J. held that it was, (determining in effect that a rent service may be 
 for years ^^) and it seemed to be taken for granted that if it was a rent 
 service, the executors might distrain for it — a conclusion which does 
 not appear to be warranted by the premises. A rent charge, as well 
 as a rent service, is mentioned in the statute ; but it has been deter- 
 mined in Turner v. Lee, that a rent charge for years is not within 
 the statute ; so that, independently of the three recent cases in tlie 
 Court of Common Pleas, I do not see that the balance of authority 
 is in favour of Powell v. Killick. In Meriton v. Gilbee, as reported 
 in 8 Taunt. 162. Mr. J. Burrough asks, " what reason is there why 
 the statute should not extend to the case where the party, whose 
 representative distrains, was seised in fee of the land ? " The answer 
 appears to me to be obvious, viz. because a seisin fee of the land, ex- 
 cludes the idea of a seisin of the rent issuing out it, and the executors 
 of those only who are seised of a rent are mentioned in the statute. 
 If a person seised in fee of rent purchase the fee of the land out of 
 which the rent issues, the lesser estate becomes merged in the 
 
 33 Ante, p. 133. 
 
 3-1 It was held in v. Cooper, 2 Wils. 375. that there is no such thing as a 
 
 rent service issuing out of a term for yeai"s.
 
 H;i LAW TKACTS. 
 
 greater, and the rent is extinguished : if he purchases the land for 
 life only, the rent is suspended. But if one seised of land in fee- 
 makes a lease for years reserving rent, he is still said to be seised in 
 fee of the land ; but with respect to the rent he has only a chattel in- 
 terest : for the estate in the rent cannot be greater than the estate 
 in respect of which it is reserved, that is, for years. 
 
 The only reason I can find stated in either of the cases in support 
 of the doctrine in Powell i". Killick is, that this stat. of 32 H. 8. 
 c. 37. is a remedial law, and that therefore the Court is bound to put 
 upon it the largest and most beneficial construction they can, and 
 bring within it all the cases which are within the mischief to be pro- 
 vided against.'''' 
 
 In answer to this observation, I respectfully submit, that there is 
 a substantial distinction between cases which come within the equi- 
 table construction of a statute, that is to say, cases which without 
 addition to the words of a statute can by an equitable construction 
 be brought within its meaning, and cases which, though within the 
 mischief intended to be provided against by a statute, ai'e excluded 
 from its operation by being omitted in the enumeration of its several 
 objects. Here the several objects of the statute are enumerated, 
 and rents reserved on leases for years are omitted ; and without ad- 
 dition to the words of the statute, they cannot be brought within its 
 provisions. I will not pretend to dispute that it is a remedial act ; 
 but admitting it to be so, still as the case in question does not come 
 M-ithin its obvious meaning, I am disposed to agree in the observa- 
 tion of Sir David Evans, who says, in speaking of another statute — 
 *' It might be very reasonable to make a statute for the purpose ; but 
 certainly the language of the present statute will not admit of such 
 an interpretation ; and it would be much better, until there is 
 another, to let the inconvenience remain as it is than to allow the 
 assumption of that judicial legislation, of which it is more easy to 
 check the beginning than to calculate the end." ^^ 
 
 It would be tedious to dwell longer on this point : I shall therefore 
 proceed to consider, secondly, what is a sufficient averment of title to 
 distrain in an avowry by executors ; and in order to this, it will be 
 necessary to take a concise view of the mode of making avowry on 
 distress for rent in ordinary cases. 
 
 35 Per Best C. J. in Staniford f. Sinclair, 2 Bing. 19/. — I believe the reason 
 given by the C. Justice at the commencement of his judgment relates to the form 
 of the avowry ; but there is evidently a mistake in the report, so that it is impos- 
 sible to draw any inference from it. 
 
 3« Evans's Collection of Statutes, vol. A. p. 1/8.
 
 LAW TRACTS. 14.J 
 
 An avowry on a distress for rent is an acknowledgment by the 
 defendant of the taking of the goods &c. in the manner complained 
 of, together with a justification of the taking, — as a distress for rent in 
 arrear due at the time of the distress made. An avowry at common 
 law for rent arrear begins with a statement of the defendant's 
 title, as that he was seised in fee ; or, if he was seised or possessed 
 of a less estate, it states the seisin out of which the estate was 
 derived, and deduces it to the grantor of the lease : so that it may 
 appear that the lease was made under a sufficient authority ; — it then 
 states the lease, and the rent reserved, &c., shows the amount of rent 
 in arrear, and avows the taking of the goods as a distress for the 
 same. This was in substance the form of all avowries for rent be- 
 fore the stat. 11 G. 2. c. 19. s. 22, and is still the substantial form 
 of avowries in all cases which do not come within its provisions.^'^ 
 By this section it is enacted, in substance, that it shall be lawful for 
 all defendants in replevin, to avow or make cognizance generally, 
 that the plaintiff in replevin or other tenant of the lands, &c. whereon 
 the distress was made, enjoyed the same under a grant or demise at 
 such a certain rent during the time wherein the rent distrained for 
 incurred ; or that the place where the distress was taken was parcel 
 of certain tenements held of such an honour, lordship, or manor ; 
 for which tenements the rent, Sec. was due, without further setting 
 forth the grant, tenure, demise or title of such landlord or landlords, 
 lessor or lessors, owner or owners of such manor, &c. 
 
 The operation of this statute is confined to cases between landlord 
 and tenant ; and therefore it will still be necessary for a party avowing 
 for any kind of rent, unless reserved on a grant or demise of land, to 
 avow specially as before the passing of this statute. 
 
 Thus it was determined in the Leominster Canal Company v. 
 Cowell and another,^^ that a rent charged on rates by a Canal Act 
 is not within the statute. So in the case of Lindon v. Collins, ^^ it 
 was held that the statute does not extend to an avowry for a rent 
 charge ; and the same point was determined in the case of Bulpit v. 
 Clarke. ^*^ In making avowries under this statute, it has always been 
 usual to show a tenancy subsisting at the time of the distress ; and 
 Mr. Chitty in a note to a precedent for such an avowry, ^^ observes 
 that it is material to do so. It seems to follow, therefore, that in no 
 
 3'' Of course the avowry varies in each case, according to tlie nature of the 
 rent, and other circumstances. 
 38 B. & P. 213. See also the same Company v. Morris, 7 T. R. 500. S. P. 
 :'» Willes, 42.9. -lo i N. R. 66. 4i Ch. PI. 543. n.
 
 141 LAW TU VCTS. 
 
 case will an avowry under this statute be good, unless it states that 
 the plaintift* or other tenant of the land was tenant to the party 
 claiiniiig the rent at the time of the distress made. To apply this 
 reasoning to the case of executors, if rent accrue due to executors 
 after the death of the testator, they may of course avow in their own 
 right like any other persons. If the rent became due to the testator 
 (a tenant for years) on an underlease by him, in that case the reversion 
 for years vesting in the executors, together with the rent arrear, they 
 may distrain for it at common law, in respect of their reversion ; and 
 avow, as in the case of Lingham v. Warren, ^- that the plaintiff held 
 the locus in quo as tenant to the testator in his life, and from the 
 time of his death, as tenant to the defendants, as executors by virtue 
 of a demise made by the testator at a certain rent, &c. : ^ but if a 
 lease be made by a tenant in fee simple, it is evident, that though the 
 rent arrear at his death will go to his executors, the reversion 
 depending on the lease, will go to the heir or devisee ; and that, as the 
 executors could not aver a tenancy under themselves, it would be 
 necessary for them to bring themselves within the statute 32 H. 8. 
 c. 37, by setting forth their title specially in the avowry; that is, 
 supposing it to be a rent within the meaning of that statute. 
 
 Taking it for granted, that the rent in question in Staniford v. 
 Sinclair, was a rent for which a distress might be had, I will take 
 the liberty to ask whether the avowry showed a sufficient title in the 
 defendants to make such distress ? It will be remembered, that the 
 avowry stated in substance ^ that the plaintiff held the locus in quo 
 as tenant to the defendants' testator for a certain time, until his death, 
 
 42 4 B. Moore, 409. 
 
 '13 Mr. J. Park, in delivering his opinion in the case of Staniford v. Sinclair, 
 refen-ed to the following words made use of by Mr. J. Richardson in the above 
 mentioned case of Lingham v. Warren : " Tlie avowry is good on the face of it, 
 as it is therein alleged that rent was due from the plaintiflf to the testator, as well 
 as to the defendants as his executors ;" but it seems to have escaped the observa- 
 tion of the learned Judge, that in the case of Lingham v. \A'arren, the avowry 
 stated that the plaintiff held the locus in quo as tenant thereof to one H. in his life- 
 time, and from his death until the time of the distress, as tenant to the defendants as 
 executor and executrix ; so that the avowry showed that the relation of landlord 
 and tenant subsisted between the plaintiff and the defendant at the time of the 
 distress, and it was therefore undoubtedly a good avowry within the 1 1 G. 2. 
 c. 19. s. 22. ; — but the avowry in the case of Staniford v. Sinclair, merely 
 averred that the plaintiff was in possession at the time of the distress, but not as 
 tenant to the defendants ; so that the observation of Mr. Justice Richardson, though 
 midoubted law, does not appear to warrant the conclusion drawn from it by Mr. 
 Ju<tice Park. 44 gge ante, p. 139.
 
 LAW TRACTS. M 5 
 
 at a rent, and that, because rent in arrear at the testator's death 
 continued due and unpaid to the defendants as executors, and 
 because the plaintiff was in possession, the defendants as executors 
 distrained for the said rent. I submit that the defendants in this 
 case should either have shown a right to distrain as landlords, by 
 averring a tenancy under themselves by the plaintiff, or some other 
 person, at the time of the distress, or they should have shown their 
 authority to distrain, by setting forth their title to the rent specially 
 on the record. But the Court held, that it being stated that the 
 plaintiff was in possession of the locus in quo, and that rent was due 
 to the defendants as executors, a sufficient prima facie title was 
 shown, within the 11 Geo. 2. c. 19, and that if there was any answer 
 it was for the plaintiff to plead it in bar. 
 
 Perhaps it will not be useless to inquire what is the meaning of 
 the expression '' prima facie title." I consider a, prima facie state- 
 ment of title to be a general averment of title, without showing its 
 derivation or commencement. As a statement of possession of lands 
 or goods, without stating how possession was obtained, in an action 
 of trespass against a wrong doer, or a statement in an avowry, that 
 A B held and enjoyed land as tenant to another, without showing 
 the commencement of the tenancy, or the estate of the party de- 
 mising. These are prima facie statements, because they consist of 
 mere general averment of title, without allegation of facts in proof 
 of it; whereas, a title specially pleaded is demonstrated hy a parti- 
 cular statement of facts on record, and the only way of avoiding the 
 conclusion of title thus specially deduced, is to deny some one of the 
 facts alleged in its support. But every averment of title, whether 
 prima facie or otherv/ise, must be positive in its terms, or must 
 consist of such a statec^ent of facts as will, if uncontroverted, 
 necessarily induce a presumption of the right claimed. Thus an 
 averment that A B held land as tenant to another, and that rent 
 became in arrear, is a sufficient statement of title to distrain for the 
 rent, because distress is the known common law remedy, given to a 
 landlord for the recovery of rent arrear, and it is unnecessary to aver 
 specially a conclusion of law. But an averment that A B held as 
 tenant to C D ; that rent became in arrear in the hfe of C D, and 
 that at the time of the distress, the same rent continued due to the 
 defendants as executors of C D, and that A B continued in pos- 
 session at the time of the distress, does not appear to me to be a 
 prima facie statement of title to distrain for rent; for it is by no 
 means a necessary inference, that because rent arrear is due to exe- 
 cutors from the tenant of their testator, they have a right to distrain
 
 14G LAW TRACTS. 
 
 for it: — on the contrary, the general presumption would be against 
 such a right. Prima facie, no one can distrain hut the party having 
 the reversion of the land, in respect of which the rent is reserved ; 
 and if a party does not appear to have the reversion, or (to use the 
 words of Mr. J. Bayley, M'hen counsel in the case of Bulpit r. Clarke,) 
 if he does not appear to be dominiis pro tempore, he has prima facie 
 no riglit to distrain. Special powers of distress accompanying a 
 grant of a rent chai'ge, or given by statute, are cases of eatraordinarij 
 right ; and it is a general rule, that parties claiming under a statuta- 
 ble or other special authority, must bring themselves within the terms 
 of it. ■*^ This form of avowry is, however, precisely the same as that 
 in Staniford v. Sinclair, and it must therefore be considered that such 
 an avowry is suflicient on general demurrer. 
 
 The effect of a general demurrer is to admit the truth of all the 
 facts stated in the pleadings demurred to, and at the same time, to 
 waive all formal defects in the statement of those facts ; so that the 
 only question for the consideration of the Court is, whether the facts 
 stated are sufficient to establish the claim in support of which they 
 are adduced. Thus the general demurrer in Staniford v, Sinclair, 
 admitted the tenancy by the plaintiff under the defendants' testator, 
 the possession of the plaintiff at the time of the distress, and that 
 an arrear of rent, incurred in the testator's lifetime, was due from the 
 plaintiff to the defendants as executors ; and the Court of Common 
 Pleas considered that these facts showed a svxf^cient prima facie title 
 within the statute 11 Geo. J3. c. 19. s. 22. As it clearly appears 
 that this statute extends only to cases between landlord and tenant, 
 it must be presumed that the Court also considered, that the avowry 
 in that case contained a sufficient prima facie statement of tenancy 
 under the defendants at the time of the distress. It is obvious, that 
 the avowry contains no direct averment of a tenancy under tlie defen- 
 dants; but admitting that there was sufficient averment by implication, 
 and that this case was therefore rightly decided on general demurrer, 
 which precludes all objections to matter of form — it by no means fol- 
 lows that the same decision would take place on a special demurrer, 
 in which the particular defect in form would be pointed out. But, in 
 order to ascertain more clearly the probable effect of a special 
 demurrer, let us first see in what manner a plaintiff can plead to a 
 general avowry by executors, so as to take advantage of the feet of 
 there being no subsisting tenancy at the time of the distress. 
 
 *> See the argument of Mr. Serjeant (now iMr, Baron) Hullock, in the case of 
 Martin v. Barton, 1 B. & B. 281.
 
 LAW TRACTS. 
 
 147 
 
 If such an avowry as the one in Staniford v. Sinclair, be considered 
 to contain an averment of a tenancy under the defendant as executor ; 
 it follows that a plaintiff may plead that he did not hold the locus in 
 quo as tenant to the defendant, and that the defendant will be bound 
 to take issue on that plea, and, if in fact no such tenancy existed, the 
 consequence will be that the defendant must be defeated. Perhaps, 
 however, the defendant might be advised to demur to such a plea, 
 on the ground that it pretends to traverse a fact not averred in the 
 avowry. If it should be considered that such a plea is bad on that 
 ground, it seems to follow, as a necessary consequence, that the 
 plaintiff may demur to the defendant's avowry, assigning (amongst 
 other special causes of demurrer) that it does not appear by the 
 avowry that any tenancy existed at the time of the distress, so that 
 the plaintiff is precluded from taking issue on that fact ; for it is an 
 established rule of pleading, that every necessary averment should 
 be so certain that issue may be taken on it, and an averment of 
 tenancy must certainly be a material part of a general avowry, which 
 is applicable only to cases between landlord and tenant. This will 
 impose on the defendant the necessity of amending his avowry, and 
 of setting forth specially his title to the rent, and the facts on which 
 he grounds his right to distrain for it ; and if it should appear by his 
 special avowry, that he distrains in respect of rent reserved on a lease 
 for years, made by his testator as tenant in fee simple, the question, 
 whether such a rent is within the provisions of the statute 32 H. 8. 
 c. 37, will be brought fairly before the Court for their decision, which 
 it does not appear to have been since the above mentioned Nisi Prius 
 case of Powell v. Killick. 
 
 The practical conclusions I draw from the foregoing obs ervations, 
 on the right of executors to distrain for rent reserved on a lease for 
 years, made by a tenant in fee simple, are, that as it has been deter- 
 mined by the last-mentioned case at Nisi Prius, confirmed in some 
 degree by the recent cases of Meriton v. Gilbee, Martin v. Barton, 
 and Staniford v. Sinclair, that an executor is entitled to distrain for 
 such a rent, it would be imprudent for a party distrained on to rely 
 on the contrary doctrine, though expressed by men whose opinions 
 have always been held in the highest respect — and further, that in 
 case a plaintiff should be desirous of bringing this question to a deci- 
 sion, and the defendant should avow generally, as in either of the 
 three last-mentioned cases in the Court of Common Pleas, it would 
 be improper for the plaintiff to rely on a general demurrer ; but he 
 should either plead, that he did not enjoy the locus in quo as tenant 
 to the defendant, or demur specially to the avowry in the manner
 
 MS LAW TRACTS. 
 
 above suggested, and I incline to think, that the latter course is most 
 advisable. On the other hand, I think an executor would run some 
 risque in distrainino- for a rent of the last-mentioned description ; for 
 the case of Powell r. Killick, taken singly, is certainly overbalanced 
 by the cases of Turner v. Lee, and Renvin v. Watkin, and the 
 opinion of Mr. J. Duller in commenting on the implied opinion of 
 Lord Coke; and notwithstanding all the respect I feel for the very 
 learned Judges of the Court of Common Pleas, I cannot but consider 
 the authority of their opinions on this point to be very much dimi- 
 nished, by the circumstance of their not being necessary to the 
 decision of the cases in which they were expressed. I am therefore 
 disposed to recommend executors (unless in cases of such particular 
 emergency as to induce them to run the risque of being defeated) to 
 rely on their common law remedy of action for a rent of this descrip- 
 tion, the more especially as they will not be subject to costs as plain- 
 tiffs ; whereas, when defendants in an action of replevin, their 
 character of executors will not excuse them from this liability. 
 
 Lastly when an executor becomes defendant in an action of reple- 
 vin, it will be dangerous for him to consider the case of Staniford 
 V. Sinclair as an authority that he may in all cases avow generally 
 under the statute 11 G. 2. c. 19. s. 22, for arrears of rent due to 
 him in his representative capacity, for I think I have clearly shown 
 that this statute applies only to cases between landlord and tenant ; 
 and therefore, a general avowry can be proper in those cases only, in 
 which the party avowing or making cognizance can show a tenancy 
 subsisting at the time of the distress, either under himself or the 
 person to whom the rent is due. 
 
 As to common costs on an avowry in replevin, I do not know any 
 distinction between the case of an executor and any other person, 
 and it may be taken for granted, that whenever any defendant in such 
 an action would be liable to costs, an executor would in the like cir- 
 cumstances be subject to the same liability. The title of an executor 
 to be paid costs, depends on the statutes of 7 H. 8. c. 4, 21 H. 8. 
 c. 19, 17 C. 2. c. 7, and 11 G. 2. c. 19. By the 7 H. 8. c. 4. s. 3, 
 and 21 H. 8. c. 19. s. 3, the defendant in replevin making avowry, 
 cognizance, or justification for rents, customs, or services, or for 
 damage feasant, is entitled to costs, if the avowry, cognizance or 
 justification be found for him, or the plaintiff be nonsuited or other- 
 wise barred; and by the statute 17 C. 2, c. 7. s. 2, costs are given 
 to the defendant in replevin on distress for rent, on nonsuit of the 
 plaintiff before or after issue joined, and on judgment for the defen- 
 dant on verdict, or demurrer.
 
 LAW TRACTS. 
 
 119 
 
 By the statute 11 G. 2. c. 19. s. 22, if a plaintiff in replevin 
 become nonsuit, discontinue, or have judgment against him, the 
 defendant will be entitled to double costs of suit. 
 
 The three first of these statutes extend lo all kinds of rent, whether 
 reserved on lease or otherwise, and any party entitled to distrain, 
 whether in his own right, or as executor, will be entitled to costs 
 under them. But it has been determined that the last-mentioned 
 statute extends only to cases of distress between landlord and 
 tenant. '^^ It therefore follows, that where a defendant cannot avow 
 as landlord, or dominus pro tempore, he will not be entitled to double 
 costs of suit ; and as the only case in which an executor can avow as 
 landlord is, where a reversion for years, lo which rent is incident, 
 vests in him on the testator's decease, as ii the before-mentioned case 
 of Lingham v. Warren, it is consequenty the only case in which an 
 executor when defendant in replevin can claim double costs. 
 
 I have now made all the observations which at present occur to 
 me, on the remedies of executors for tlie recovery of rent. I do 
 not pretend to have given in this small tract all the information which 
 may be required on this subject, but I am not aware that I have 
 omitted any thing peculiar to the case of executors : and without 
 professing to be perfectly correct in all I have advanced, I have at 
 least endeavoured to be so. 
 
 ^ See the cases of Bulpit v. Clarlev &c. ante, p. 143. 
 
 THE L'.Nn OF >iO. VI.
 
 LAW TRACTS. 
 
 No. VIL 
 
 AN ANALYSIS 
 
 FIRST AND BEST EDITION OF 
 
 PRESTON ON ESTATES; 
 
 BY WAY OF 
 
 QUESTION AND ANSWER.
 
 CONTENTS. 
 
 Prefatory Remarks. 
 
 Introductor}/ Questions and Definitions of Terms. 
 
 Chap. I Of Freeholds. 
 
 Chap. II. Sect. 1. Of Estates in fee. 
 
 2. Of the creation of Estates in fee in Deeds. 
 
 S. Of the creation of Estates in fee in Wills. 
 
 Chap. III. Sr.cT. 1. Of Conditional Fees. 
 
 2. Of Estates tail. 
 
 3. Of the creation of Estates tail. 
 
 Chap. IV Of Estates for Life. 
 
 Chap. V Of Estates after jiossihilitij of issue extinct. 
 
 Chap. VI Of Curtesy. 
 
 Chap. VII Of Doiver. 
 
 Chap. VIII Of Terms for Years. 
 
 Chap. IX Of Estates at Will. 
 
 Chap. X Of Estates by Sufferance.
 
 PREFATORY REMARKS. 
 
 The compiler of the following Analysis having found it ex- 
 tremely serviceable in aiding the studies of his pupils, conceives 
 that it may not be unacceptable to other professional preceptors 
 whose avocations do not permit them to devote any large 
 portion of time to the regular examination of the progress of 
 the gentlemen under their guidance. The plan he has adopted 
 with considerable success himself has been this : After a second 
 reading of Blackstone, he has directed the pupil ''to get up" 
 (in the technical language of the schools) Preston on Estates, 
 giving him the following eight hundred questions in a separate 
 shape, (which may be easily copied off,) and requesting that 
 he will prepare himself with exphcit answers, (written or 
 verbal, as he may best prefer) to as many of the questions as 
 two hours dihgent study of the text will enable him. In the 
 examination, the student's difficulties and misapprehensions 
 will, with the assistance of the ensuing pages, be easily and 
 expeditiously detected; and a text being thus afforded, tlie 
 experienced tutor will have an opportunity of explaining any 
 discrepancy, marking any anomaly, and directing attention to 
 the more important doctrines,— in short, of imparting much 
 valuable practical information to his pupil which he could 
 never obtain from the study of books alone. 
 
 But without the advantages of oral instruction, the student 
 may derive considerable benefit from this analysis, by using it 
 as a test to his oWn written answerg. The recurrence to tlie
 
 PREFATORY REMARKS. 
 
 subject will serve to fix it on his mind and make it peculiarly 
 his own. Until that be accomplished, a law-book cannot be 
 considered as profitably read. Mere silent reading is a passive 
 operation, and makes little impression on the memory ; but 
 the reduction to writing, (in one's own familiar phraseology,) 
 of an answer to a pointed question, converts the mind into an 
 active agent, and tends to fix upon it the subject it has been 
 considering. Hence, any plan which renders the intellectual 
 faculties alert and active, is the plan best calculated to promote 
 a beneficial result from private study; and it is submitted, 
 that the mode proposed by this Analysis is as effectual as any 
 to keep the mental energies awake. 
 
 It may be thought, that the second edition of the " Essay on 
 Estates" should have been selected in preference to the first, 
 but the interpolations in that edition have, to the mind of the 
 compiler, rendered it quite unfit for study. The original 
 edition bears a strong resemblance to Co. Litt. omitting the 
 more obsolete passages, and therein consists its excellence. 
 However, as the Analysis is unique in itself, and treats wholly 
 of principle, it may be read and studied with advantage with- 
 out reference to either edition of the work of which it professes 
 to contain a faithful epitome.
 
 AN ANALYSIS- 
 
 INTRODUCTORY QUESTIONS. 
 
 1. What is the subject of property wherein estates may be had? 5. 
 
 Land in its several species and interests, and the personal 
 duties and privileges arising therefrom. 
 
 2. Name the three articles of property ? 5. 
 
 1. Lands, 
 
 2. Tenements, and 
 ,'J. Hereditaments. 
 
 3. " i««c?" comprehends what? 5. 
 
 All terrestrial subjects which admit of manual occupation 
 and are permanent and immoveable, such as houses, build- 
 ings, fields, gardens, orchards, &c. 
 
 4. What does the term " Tenement" comprise?- 5. 
 
 Every thing that may be holden so as to create a tenancy, 
 as land, a house, a rent-charge, or a common. 
 
 5. Explain the nature of an " Hereditament V G. 
 
 Under the term hereditament, is comprehended every 
 thing that may be taken in hereditary succession. Every 
 species of land and tenement is of this class ; so is an an- 
 nuity, and a right of common. There are also many per- 
 sonal chattels which descend upon " heirs," and are called 
 hereditaments. 
 
 G. Under what general divisions may real property be comprised? 6. 
 
 1 . Things lying in livery. 
 
 2. Things lying in grant. 
 
 7. When may the subjects of property be said to lie in livery ? 7. 
 AVhen the owner of the first estate of freehold therein is 
 in possession of the property, as then the only mode of
 
 15G ''AW TKACTS. 
 
 transmitting such estate of freehold to another person is by 
 a conveyance accompanied with Hvcry (or dehvery) of pos- 
 session or seisin, or some form equivalent to such livery of 
 seisin, as by lease and release and the statute of uses, M-hich 
 operates to transmit the fi-eehold precisely in the same 
 manner, though not by exactly the same means, as actual 
 livery of seisin. 
 
 8. When may property be said to lie in grant? 7. 
 
 1st. When the owner of any estate in land is not entitled 
 to the possession, as then he may pass such estate to another 
 by grant, to the perfection of which livery of seisin is not 
 essential. — Hence, a remainder or reversion may be said to 
 lie in grant, and 
 
 2d. All other property may be said to lie in grant which 
 is not land itself, but which arises from land, as rent, tithes, 
 corrodies, commons, and most incorporeal hereditaments, as 
 hereafter explained. 
 
 Hence the division of things lying in livery and grant 
 arises from the consideration of the modes of conveyance by 
 which they may be transmitted from one person to another. 
 
 9. Is land a tenement or an hereditament ? 7. 
 
 It is both ; for it may be holden, and may descend to 
 heirs. 
 
 10. Are lands and tenements the same, or distinct things? 7. 
 
 Lands and tenements may be said to be the same things, 
 for nothing will pass as land but what may pass as a tene- 
 ment ; but a tenement and land may be distinct things, as 
 rent is a tenement, but not land. 
 
 11. Is an hereditament of necessity a land or tenement ? 7. 
 
 No, it may be neither, as in the instance of a personal an- 
 nuity descendible to heirs. 
 
 12. Hereditaments are distributed into what two species? 7. 
 
 Into 1, Corporeal, and 2, Incorporeal hereditaments. 
 
 1.']. Of what do corporeal hereditaments consist? 8. 
 
 Of land in all its species, as houses, gardens, orchards, 
 fields, &c.
 
 LAW TRACTS. 157 
 
 11. Of what do incorporeal hereditaments consist? 8. 
 
 Of all such tenements as are not land, but which never- 
 theless issue out of, or are collateral to land, as rents, com- 
 mons, &c. ; and also of hereditaments which savour nothing 
 of the realty, as annuities, corrodies, &c. 
 
 1 o. What incorporeal hereditaments are said to He in premier, and 
 
 why ? 8. 
 
 Such as the owner enjoys by taking, as commons, which are 
 taken by the mouths of cattle ; and because it is taken, the 
 hereditament is said to lie in prendre, from the French verb 
 prendre, to take. 
 
 1 G. What incorporeal hereditaments are said to lie in render, and 
 why? 8. 
 
 Such as make it incumbent on another to render money or 
 other service at a stipulated time ; and because the property 
 is rendered, the hereditament is said to lie in render. 
 
 This division of incorporeal hereditaments into such as 
 lie in render, and such as lie in prendre, arises from the con- 
 sideration of the mode of their enjoyment. 
 
 17. What generic distinction is worth observing between corporeal 
 
 and incorporeal hereditaments ? 9. 
 
 This — that land is always the same, from the most remote 
 period to the present time, and will continue so for ever : — 
 but interests in or issuing out of land owe their creation to 
 the time when they were first granted, and may be granted 
 every day, and may be extinguished. 
 
 18. What division or secondary classification of incorporeal heredita- 
 
 ments arises from this distinction ? 10. 
 
 This — That incorporeal hereditaments may be considered 
 with reference, 
 
 1st. To interests created de novo ; and 
 2d. To interests already created. 
 
 19. When is an incorporeal hereditament said to be granted de 
 
 novo ? 10. 
 
 When the time of its continuance is marked by the same 
 instrument by which it is created.
 
 I.W LAW THACTS. 
 
 no. What ilocs the term estate inchidc? 10. 
 
 Tliat interest which any one has in an hereditament, con- 
 ferring a right of present or future enjoyment. 
 
 ^1. How does it differ from a right ? 
 
 (An estate seems to point to a right which is cstahUslicd, 
 but a mere right seems to require acknowledgment or estab- 
 lishment) — Thus the right of possession or enjoyment may 
 be interrupted (by disseisin or otherwise) ; in which case the 
 estate is said to be turned into a right, or something inferior 
 to an estate ; which estate can be restored by entry or action 
 only. 
 
 U2. What forms the quantity of an estate ? 11. 
 
 The time for which the right of enjoyment is to continue. 
 
 23. What forms the quality of an estate ? 11. 
 
 The maimer in which that enjoyment is to be had. 
 
 24. Adduce an example wherein the quantity and quality of an 
 
 estate may be distinguished ? 11. 
 
 This may be exemplified in the case of a term for years. — 
 The duration of the term is the quantity of estate, and the per- 
 sonal attributes of the term — as, that it confers an interest less 
 than a freehold and is descendible to executors, &c. — is the 
 quality of the estate of the termor in the term. 
 
 25. Into what two general branches may estates in land be di- 
 
 vided? 11. 
 
 Into, 1st. Estates of freehold ; and 
 2d. Estates less than freehold. 
 
 26. How may estates be classed with respect to their extent ? \\. 
 
 1st. Into general or simple estates. 
 2d. Into qualified or conditional estates ; and 
 3d. Into particular or immediate estates with remainders 
 over. 
 
 27. How as to cer^ae/i/y of enjoyment? 12. 
 
 1st. They may be vested or executed ; and 
 2d. They may be contingent or executory.
 
 LAAV TRACTS. l/iQ 
 
 28. How as to the time of enjoyment ? 12. 
 
 They may be in possession, remainder, or reversion. 
 
 29. Woyf , in xeg-axdi io i\\Q 7iu7nber of tenants ? 13. 
 
 They may be held, 
 
 1st. By one separately; or 
 2d. By several together. 
 
 30. Under what variations may two or more tenants hold estates? 13. 
 
 They may hold, 
 
 1. By intireties, 
 
 2. In joint tenancy. 
 
 3. In coparcenary ; or 
 
 4. In common. 
 
 31. How may estates be created, limited or transferred ? 13. 
 
 1 . By hmitation of the legal estate. 
 
 2. By limitation of use. 
 
 3. By resulting use. 
 
 4. By limitation of trust ; and 
 
 5. By implication of law. 
 
 DEFINITION OF TERMS. 
 
 32. What is a limitation? 14. 
 
 The fixture of a limit to the time for which an estate is to 
 be enjoyed, whereby the termination of that estate is marked 
 either in express words or by referring to some event, or it 
 may be defined by construction of law. 
 
 S^. What is necessary in the limitation of a fee simple ? 15. 
 
 That the word " heirs " be introduced without any addition 
 except the words " for ever, " which are not necessary but 
 are usual and proper. 
 
 34. What, in the limitation of a qualified or determinable fee ? 15, 16. 
 
 That the word heirs be followed by restrictive words, as 
 during the standing of a certain tree, or during the life of 
 another person.
 
 M;() law t a acts. 
 
 '^'i. What, in the limitation of an estate tail? l/». 
 
 That the heirs be confined to a particular class, as to u 
 man and his heirs on the part of his father, or to a man and 
 his heirs of his body generally. 
 
 .'?{). What estate passes by a limitation to a man generally without 
 the word heirs, or words expressive of the quantity of in- 
 terest? 16. 
 
 An estate at will, if the conveyance be by grant, or an estate 
 for the life of the grantee, if the conveyance be by livery, ex- 
 cept the grantor have a term for years, in which case the re- 
 sidue of the term will pass. 
 
 .'>7. What passes by the limitation of an estate of freehold to a man 
 and his executors ? 17. 
 
 The same estate as would have passed, if no mention had 
 been made of the executors, that is, an estate at Mill, for life, 
 or for years, according to circumstances. 
 
 38. Does the word " heirs " admit of qualification ? 17. 
 
 Yes, as in the instance of a limitation to A and his heirs 
 during the life of B ; A takes a qualified fee determinable on 
 B's death — or rather, a descendible freehold. 
 
 rjf). What estate passes by a gift to a man and his heirs for a term of 
 years ? 18. 
 
 A leasehold estate only ; and the grantee's executors would 
 take in preference to his heirs. 
 
 'JO. How would a gift to A and his heirs male for a term of years be 
 construed in a will? 18. 
 
 So as to give the devisee an estate tail ; and all that related 
 to the term would be considered as surplusage. 
 
 Obs. Then a devise to A and his heirs for years should 
 give the fee, which quaere — and quaere also the eflfect of a 
 /imitation to a man and his heirs for years, when ihh gran- 
 tor has more than an estate for years — as for instance, a fee. 
 But heirs male could not be turned into executors so well 
 as heirs general. Would it not be more consistent that the 
 devise in Qu. 40 should confer a ter?n determinable on the 
 failure of issue male?
 
 LAW TRACTS. 161 
 
 41. Name the four several sorts of limitations ? 18. 
 
 Limitations may be 
 Absolute, 
 Conditional, 
 Direct, or 
 Collateral. 
 
 4)2. What is the peculiar characteristic of an absolute limitation? 18. 
 
 It names a time or event which will certainly happen, for 
 the commencement of the estate. 
 
 43. What is the effect of a conditional limitation? 18. 
 
 It makes it necessary that some act should be done, or 
 some event should occur, before a right to present or future 
 enjoyment is conferred. 
 
 44'. What is the office of a direct limitation? 19. 
 
 Its office is to mark the boundary or duration of estate, as, 
 that it be for hfe, — for years, — for general or specific heirs. 
 
 45. What is a collateral limitation ? 19, 20. 
 
 The expression of some event which may happen during 
 the period of direct limitation and on the happening of which 
 event the limitation is to cease : as, to A for 99 years if he 
 shall so long live — or to C till the return of B from Rome : — 
 here C takes for life determinable on B's return from Rome, 
 if B so return during C's lifetime. 
 
 46. Does the limitation cease immediately on the happening of the 
 
 collateral event? 20, 21. 
 
 Yes, never to revive, if the event happen by act of the 
 party : but if by act of God, as in the case of a limitation to A 
 and his heirs so long as B has issue, and B dies without 
 issue, but his wife being ensient is afterwards dehvered of a 
 child, on the birth of the child the estate will revive and 
 have continuance as from the parent's death. 
 
 Note. An infant en ventre sa mere is for most legal 
 purposes considered as in existence. 
 
 47. What is the effect of a condition ? 21. 
 
 Its effect is to defeat the estate before the time marked out 
 in the Umitation.
 
 \{jj LAW TliACTS. 
 
 48. Give an instance (if a condition ? iiS. 
 
 Limitation to A and his heirs, provided that if he shall not 
 pay a certain sum at a day to come, then his estate shall he 
 void. 
 
 40. Distinguish a condition from a collateral limitation ? 23. 
 
 A condition is a clause annexed to a direct or collateral 
 limitation, (commencing with words of proviso and terminating 
 with words of avoidance) whereby, on the happening of the 
 conditional event, the estate is to be defeated. A collate- 
 ral limitation is a species of alternative annexed to the limita- 
 tion of an estate, and on the hap})cning of tlie collateral event 
 the estate determines of itself; whereas an entry or claim is 
 necessary to restore the possession on the happening or non- 
 happening of a condition. 
 
 50. Adduce an example of a collateral limitation with a condition 
 
 annexed ? 
 
 Limitation to A for 99 years if he shall so long live, provi- 
 ded that if he does not pay B the sum of 201. within six 
 
 months his estate shall be void. 
 
 / • ■ / ■' - 
 
 51. What consequence ensues from the condition and collateral limi- 
 
 tation fixing on the same event for the avoidance and termina- 
 tion of the estate ? 22. 
 
 The condition is rejected as repugnant. 
 
 52. Do springing and shifting uses partake of the nature of con- 
 
 ditions or limitations ? 25. 
 
 Of conditions as to the estates they defeat, and of limitations 
 as to the estates they give rise to. 
 
 53. By whom only can conditions be taken advantage of? 25. 
 
 By the person making the conveyance or his heirs. 
 
 54. What docs a general estate comprise ? 26. 
 
 The fee simple. 
 
 55. How is it distinguished from a qualified estate ? 26. 
 
 In that the latter is confined in descent to a particular class 
 of heirs.
 
 LA"\V TRACTS, K>3 
 
 66, What title or interest does a particular estate confer ? 26. 
 
 A portion only (and that, generally the previous and im- 
 mediate portion) of the tune of a general estate. 
 
 57. Distinguish a vested from a contingent estate ? 26, 21. 
 
 The former gives a fixed right of present or fviture enjoy- 
 ment ; — ^the latter confers a right on the happening of an un- 
 certain event, till which time the party has but a contingent 
 interest. 
 
 58. By what may a vested remainder be Invariably distinguished from 
 
 a contingent remainder ? 29. 
 
 By its present capacity of taking effect in possession the 
 moment the preceding estate falls in. To the perfection of 
 a vested remainder, the person to take the remainder and the 
 event on which it is to arise must be so ascertained, that sup- 
 posing the particular estate to determine at any time, the 
 remainder will be ready to vest in possession. 
 
 59. When the particular estate is to determine on a contingent event, 
 
 is the succeeding remainder necessarily contingent? ;^'T. 81. 
 
 Not certainly so, as the vesting of the remainder does not 
 necessarily depend on the termination of the particular estate. 
 The remainder may vest immediately on its creation, — it may 
 vest during the continuance of the particular estate, — or it may 
 vest eo instcmte the particular estate determines and by the 
 same event which defeats or terminates that estate : — as to A 
 for life, with remainder to B if he shall return from Rome in 
 A's lifetime : hei'e the remainder vests on B's return. So, to A 
 till B returns from Ptome, and after such return then to B in 
 fee : here the determination of A's estate is particularly de- 
 fined, and the rise of the remainder is distinctly marked ; but 
 during B's absence the remainder is contingent, not because 
 the preceding estate is to determine on a contingent event, 
 but because such remainder is limited to commence on an 
 event which may or may not lia})pen. 
 
 GO. Does a limitation to A for life, and after the determination of 
 that estate, to B and his heirs male, give a vested or contingent 
 remainder, and why ? 31. 
 
 A vested remainder ; because, let A's estate determine when 
 it will, the remainder is ready and waiting to take effect.
 
 KM LAW TRACTS. 
 
 01. When does a contingent estate cease to be so? S2. 
 
 When the uncertain event on which it depends lias hap- 
 pened. 
 
 62. What are the distinguishing characteristics between a vested 
 
 and a contingent estate ? 32, S3. 
 
 The certainty of a fixed right of enjoyment in the one in- 
 stance, and the uncertainty of that right in the other. 
 
 63. Has the owner of a vested estate a present disposable interest ? 33. 
 
 Yes, for the time his estate comprises, though it be not to 
 fall into possession till a future period. 
 
 G 1'. Has the owner of a contingent estate a present disposable in- 
 terest? 33. 
 
 No; for he has not any certain immediate right to the 
 land. 
 
 Go. Is it the futurity or uncertainty of the event that makes the 
 estate contingent? 34. 
 
 The uncertainty; for every estate limited to arise on an 
 event which will certainly happen during the continuance of 
 the particular estate, is vested. 
 
 66. W^ill every event that certainly must take place, be sufficient to 
 
 make a remainder vested ? 34. 
 
 No; the event must be such as certainly will happen 
 during the continuance of the preceding estate, and there- 
 fore a gift to A for life, and after the death of A and his 
 wife, to B in fee, confers a contingent remainder on B, which 
 will continue contingent till A's wife dies in her husband's 
 lifetime. 
 
 67. Are the terms " vested and executed," " contingent and execu- 
 
 tory," synonymous? 34, 35. 
 
 Nearly so; for every vested estate is executed, and every 
 executed estate is vested. So all contingent interests are 
 executory, but all executory interests are not contingent. 
 Thus, in the case of a devise to A to commence on the 4th of 
 next month, or on the death of B, — A's interest is executory, 
 but it is not contingent, as B is sure to die, and the particular 
 day will in all human probability arrive. •
 
 LAW TRACTS. 1G5 
 
 68. What right of enjoyment does an estate m possession give the 
 owner? 35. 
 
 A present right of present enjoyment. 
 
 G9. What right of enjoyment does an estate in remainder confer? 35. 
 
 A right of future enjoyment, depending on the form of 
 limitation and the happening of events. 
 
 70. What right of enjoyment does an estate in reversion give? 35. 
 
 A present fixed right of future enjoyment. 
 
 71. Distinguish a remainder from a reversion? 35. 
 
 A remainder is an estate hmited after a preceding estate 
 by the same deed ; while a reversion is that part of the estate 
 which remains to the grantor after carving certain estates 
 less than a fee out of it. 
 
 72. What are two essential requisites to the validity of a re- 
 
 mainder? 36. 
 
 1st. That it be preceded by a particular estate; and 
 2d. That it be limited to take effect in possession on the 
 determination of the prior interest. 
 
 73. Can the remainder-man take advantage of a condition annexed 
 
 to the particular estate? 36. 
 
 No; for the reason assigned in the answer to the 53rd 
 question. 
 
 74. What is the consequence of the remainder being limited to 
 
 take effect on the same event that is marked out for defeat- 
 ing the preceding estate by a condition annexed to that 
 estate? 36. 
 
 That the remainder is void in its limitation or inception. 
 
 75. In the case of a condition annexed to a particular estate for the 
 
 purpose of defeating that estate on a given and uncertain 
 event, — and the limitation of a remainder to commence on the 
 same event: — why is the remainder void? 
 
 Because it is a rule at common law, that no one can take 
 advantage of a condition but the grantor and his heirs, and 
 that on breach of the condition he may enter, which entry 
 restores the estate to its former plight and condition: conse-
 
 1(3(5 LAW TRACTS. 
 
 quently if the condition operates in defeazance of the particu- 
 lar estate, he in remainder cannot enter, but the grantor only ; 
 and the grantor having entered, holds the estate discharged of 
 the remainder. 
 
 70. If the condition for defeating \he prior estate be to operate on 
 one event, and the remainder be to arise on another and totally 
 different event, will the remainder be void? 36. 24. 
 
 No; but the particular estate will be discharged of the 
 condition, that is, the condition will be void, and the particu- 
 lar estate become absolute for the time it is granted. — (See 
 Rud. Hawk. Abr. 333.) 
 
 77 .Assign a reason for your answer to the last question? 
 
 The condition being on one event, and the remainder on 
 another, the grantor has by the limitation of the remainder 
 put it out of his power to reduce the preceding estate by his 
 entry or claim. To allow him to enter under the condition 
 would enable him to defeat the remainder and derogate from 
 his own grant, which could not be allowed ; to prevent this 
 consequence the remainder is supported and the condition 
 rejected. 
 
 Note. — The same reasoning in support of the remainder 
 may be applied to the case put in the 7oth question, but 
 there it should be remembered that the condition is to 
 operate and the remainder to arise on one and the same 
 event. The condition or the limitation must then be 
 considered as surplusage — one or the other must be re- 
 jected, for they cannot both stand and operate : if the 
 condition operates, then the limitation is of no use, and so 
 vice versa. Supposing then the condition to be rejected, 
 the limitation of the remainder would operate to defeat 
 the prior estate, which is contrary to the rule, " that a 
 remainder shall not take effect to the prejudice or in ex- 
 clusion of the preceding estate." To be consistent, 
 therefore, the condition must stand, and the limitation 
 be rejected. 
 
 78. Do these questions apply to wills? 24. 
 
 No ; for in the case of wills the condition is not considered 
 separate and apart from the limitation, but as annexed to and 
 forming part of it.
 
 LAW TRACTS. 167 
 
 79. May estates arising by shifting or springing use, or executory 
 
 devise, be denominated remainders ? 36. 
 
 Yes, when the estates are executed by the springing or 
 shifting of the use, &c. though not before. 
 
 80. Is the ultimate remainder in fee a reversion ? 38. 
 
 Strictly speaking it is not a reversion, for that only is a 
 reversion which remains and reverts to the grantor after the 
 limitation of particular interests out of the fee ; nevertheless 
 such remainder is a quasi reversion and has all the qualities 
 of a reversion. 
 
 8 1 . May several estates exist at the same time in the same land ? 38, 39. 
 
 Yes : as an estate in possession, an estate or several estates 
 in remainder, and an estate in reversion ; and these estates fall 
 into possession according to the order of their limitation, and 
 are but several parts of the same estate. 
 
 82. Exemplify the position that a remainder may as to one estate be 
 
 a remainder, and a reversion as to another estate. 
 
 Grant to A for life, remainder to B in fee, and B grants to 
 C for life — B has a remainder as to A, and a reversion as to C. 
 
 83. What is called a preceding estate ? 40. 
 
 Such as gives a right of enjoyment prior to another. 
 
 84. What an expectant or depending estate ? 40. 
 
 Such as waits for the determination of a preceding estate. 
 
 85. What an intervening or mediate estate ? 40. 
 
 Such as is preceded by one estate and followed by another, 
 therefore a reversion can never be a mediate estate. 
 
 86. What an immediate estate ? 41. 
 
 Such as refers to the estate immediately preceding. 
 
 87. What an original estate ? 41. 
 
 The larger or general estate, as relating to the lesser one 
 carved out of it : as if tenant for life make a lease for years, 
 the estate for life is the original one. 
 
 88. What a derivative estate ? and name its principal (j[uality. 4^.
 
 1(J8 LAW TRACTS. 
 
 A derivative estate is a lesser estate carved out of a larger 
 one, to which derivative estate, any condition or contingent 
 modification annexed to the original estate, forms a collateral 
 determination, the rule being cessunte statu 2irimitivo, cessat 
 atque derivativus. 
 
 89. What is an absolute estate? 4<3, 44. 
 
 Such as continues to the utmost point of its limitation 
 without qualification. 
 
 90. What a determinable estate? and give an instance. 44. 
 
 Such as may eventually determine before the period of its 
 limitation ; as in the instance of an estate durante viduitate. 
 This gives the w idow an estate for life determinable on her 
 marriage. 
 
 91. Adduce an example of a conditional estate? 45. 
 
 If a condition be annexed to the limitation of an estate, 
 defeating the estate previously to the period marked out in the 
 limitation, the estate is called conditional ; as in a common 
 mortgage to A for 200 years, provided that if the grantor 
 pay him (A) 200/. on the 1st of May next, his estate shall 
 be void — A's estate is conditional. 
 
 92. What is a sole or several estate? 4-6. 
 
 It exists where the right of enjoyment is owned by a single 
 tenant solely. 
 
 93. What is a tenancy by entireties ? 46. 
 
 This happens where an estate is given to husband and wife 
 jointly during coverture : here each has the whole, and one 
 cannot alien without the other ; and on the death of one the 
 whole estate belongs to the survivor. 
 
 94. What is a joint tenancy ? 47. 
 
 It occurs where several are seised jointly hy purchase in equal 
 shares with benefit of survivorship. 
 
 95. What is a tenancy in coparcenary? 47. 
 
 A tenancy in which several persons have an estate in com- 
 mon by descent in equal or unequal proportions, without any 
 benefit of survivorship between them.
 
 LAW TRACTS. 169 
 
 96. What is a tenancy in common ? 48. 
 
 It is a tenancy where several persons have distinct and equal 
 or unequal shares in the same tenement, either by the same or 
 distinct acts, and to which no survivorship is incident. 
 
 97. Wherein does a joint tenancy differ from a tenancy in com- 
 mon? 48. 
 
 1st. In the point of survivorship ; 2d, in the circumstance 
 that joint tenants have one estate in the whole, and no estate 
 in particular : — whereas tenants in common have several estates 
 in their respective parts. 
 
 98. What is a limitation of the legal estate ? 48. 
 
 §uch as arises by conveyance at common law, 
 
 99. What is a limitation of use ? AS, 49. 
 
 Such as arises by conveyance under the Statute of Uses. 
 
 100. What was a use at common law, and how did the Statute of 
 
 Uses operate upon it ? 49, 
 
 A use was the right in equity of having a conveyance from 
 the trustee at any time — which conveyance is now immediately 
 supplied by the statute for transferring uses into possession, 
 and the party to whose use the estate is limited now becomes 
 immediately seised of the legal estate. 
 
 101. Define more particularly the nature of a use before the Sta- 
 tute of Uses ? 50. 
 
 It consisted in a confidence reposed by one person in an- 
 other. The estate was legally conveyed to A, to the use of 
 B : — B was entitled to the profits, and could call for a convey- 
 ance of the legal estate from A at any time, and could compel 
 such conveyance and permission to receive the profits by bill 
 in equity ; in short, a use was then what a trust is now. 
 
 102. How was the trustee viewed in a court of law? 50, 51. 
 
 As the actual owner, and could continue in the possession 
 and receive the rents himself, and no trespass lay for such 
 usurpation: The cestui que usehsiA. neither jus in re nor jus ad 
 rem, nor any remedy at law to enforce observance of the trust, 
 
 103. Where could the cestui que use enforce his rights? 51, 52,
 
 170 I^AW TRACTS. 
 
 In the Court of Chancery only, where the equitable circum- 
 stances and conscience of the case were alone considered. 
 
 101. Had this division of estates into legal and equitable estates any 
 effect on the then existing rules of tenure ? 
 
 Yes, the fruits of tenure were frequently lost; such as fines 
 for alienation and descent, forfeitures for treason, &c. 
 
 105. What statute passed with a view to remedy these mischiefs, and 
 what was its effect ? o3, 54, 6G. 
 
 The statute 27 Hen. 8. c. 10, commonly called the Sta- 
 tute of Uses, which transferred the seisin or possession of the 
 legal tenant to the use or beneficial ownership of the cestui que 
 use after the same quality, manner, form and condition as 
 existed of the use : the effect was, that by a conveyance to A 
 and his heirs, to the use of B for life, remainder to C for life, 
 remainder to D in fee, B, C, and D took legal estates for life 
 and in fee respectively, and A took nothing. 
 
 lOG. Conveyance to A to the use of B, now gives what estate to 
 B? 56. 
 
 A legal right and a legal estate, instead of an equitable one ; 
 and A takes nothing. 
 
 1 07. Does the statute transfer the seisin of the feoffee, to the person 
 or to the estate of the cestui que use ? 57, 68. 
 
 To the estate. G8, 69. 
 
 108. Supposing the statute to have transferred the seisin to the per- 
 son of the cestui que use^ what would have been the conse- 
 quence ? 57. 
 
 In the instance of a limitation to a person unborn, a seisin 
 or scintillu juris would have remained with the feoffee till the 
 cestui que use had the capacity of taking, which is contrary to 
 the doctrine of resulting use ; for such scintilla juris results, 
 if at all, to the person who made the conveyance. 
 
 109. If before the statute the feoffee were disseised, was the use 
 discontinued? 59, 60. 
 
 Yes ; and the feoffee must have entered to have restored 
 the use.
 
 LAW TRACTS. 171 
 
 110. What was the observation of Periam C.B. on this point in 
 Chudleigh's case? GO, 61. 
 
 That the entry and re-entry of the feoffees were wholly 
 taken away by the intent of the Statute of Uses. 
 
 Note. — Chudleigh's case proceeding on a mistaken notion 
 as to the point at issue, and the doctrine being very 
 unimportant in practice, may be passed over Avithout 
 further question. 
 
 111. State the most correct notion that can be obtained of the effect 
 of the Statute of Uses? 
 
 It operates in the same way as if an actual conveyance of 
 the legal estate had been made from the feoffees to the persons 
 to whom the uses are limited, whether in esse or in posse, 
 including the persons to whom any estate would have resulted 
 before the statute, with the exception only that if before the 
 statute any ineffectual disposition of the use would have 
 resulted to the feoffee, now it results to the person who makes 
 the conveyance' to uses. 
 
 112. In the case of a feoffment to B for life, remainder to the heirs 
 of C, who is living — To whom does the fee result, during the 
 suspense that must occur, while it remains uncertain whether 
 the heir of C will be ascertained in the lifetime of B by means 
 of C's death ? 71. 
 
 The fee is in abeyance: — All estate passes out of the feoffor, 
 and he has nothing but the possibility of reverter, which the 
 death of B, living C, will render an estate. 
 
 113. In tlie instance of a conveyance to A in fee, to the use of B 
 for life, remainder to the heirs of C who is living — To whom 
 does the fee result during the contingency? 71. 
 
 To the person who made the conveyance, to become absolute 
 or be defeated according to the event ; and here observe the 
 distinction between a conveyance at common law and a con- 
 veyance to uses. 
 
 114. Conveyance to, and to the use of A — Does he take under the 
 
 statute or by the common law? 72. 
 
 By the common law, for the words of the statute are: " If 
 a conveyance be made to one man for the use of another;"
 
 l*,> LAW TRACTS. 
 
 except where soidc purpose is to be answered by the con- 
 veyance, which cannot be effected by the rules of the common 
 law. 
 
 115. Conveyance to A in fee, to the use of A for life, remainder to 
 C in fee — Does A take by the statute or common law ? 73. 
 
 By the statute, because he cannot have the particular estate 
 by any other means. 
 
 IIG. Is the use measured by the seisin ? 73. 
 
 Yes, as in the instance of a conveyance to A for life, 
 remainder to B in tail — B's entail will not last longer than 
 
 A's Hfe. 
 
 117. Is the seisin ever enlarged by the limitation of use ? 74. 
 
 Yes, where the seisin is general and the use requires more 
 than a hfe estate, and the use and seisin are in the same per- 
 son ; as to A generally to the use of A and his heirs, A takes 
 a fee — the use forming part of the limitation. 
 
 118. What is a resulting use ? 75. 
 
 Such as arises to the person conveying the estate, for such 
 part of his interest therein as remains unlimited to any use. 
 
 119. AYhat is a trust ? 70. 
 
 A right in equity to have a conveyance of the land and to 
 take the profits in the mean time ; it is in short what a use was 
 formerly. 
 
 120. How are the terms executory and executed applied to trusts ? 
 
 77. 
 
 With reference to the trustee, trusts are said to be execu- 
 tory : with reference to the cestui que trust, they are said to be 
 executed. 
 
 121. How are trusts executed construed ? 78. 
 
 In the same way as dispositions of the legal estate* 
 
 122. Can an estate arise by implication ? 78. 
 
 Yes, in limitations of use and in wills, but not by the rules 
 of the common law.
 
 LAW TllACTS. 173 
 
 123. Give instances of an estate arising by implication? 79, 80. 
 
 Devise to a testator's heir after the death of his wife, this 
 raises an estate for life in favour of the testator's m ife. — So 
 devise to A, and after default of his issue to another, gives A 
 an estate tail. 
 
 CHAP. I. 
 
 OF FREEHOLDS. 
 
 1. Trace the rise of an estate of freehold, and name its principal 
 
 qualities as distinguished from an estate in villeinage during the 
 prevalence of the feudal system? 81 to 85. 
 
 It was formerly considered degrading to a soldier who 
 was possessed of landed property, to be personally con- 
 cerned in the employment of husbandry, and this considera- 
 tion soon begat a distinction between mere tillers of the 
 land, and those who were entitled to it as soldiers, and who 
 never had an estate for a less period than their own lives. 
 The former were denominated termors or villains, whose estates 
 were liable to be determined at pleasure ; the latter freehold- 
 ers, or those who held free of the lord's caprice, and free of the 
 servile stipulations that were generally annexed to a tenure in 
 villeinage. The freeholder could sue in tlie lord's court, was 
 qualified to vote at county elections, might be a juror, and 
 was to all intents the owner pro tempore, for no real action 
 could be commenced without making him the immediate tenant 
 to the prcec'ipe, or defendant : nor could the lord directly or 
 indirectly defeat the estate of his freeholder, if the services 
 on which it was granted were duly performed. 
 
 2. What is the chief characteristic of an estate of freehold ? 87. 
 
 That it continue for the period of a life at least. 
 
 3. Are estates of inheritance estates of freehold ? 87. 
 
 Yes : for they comprise all the time of an estate of mere 
 freehold, and more. 
 
 4. What is understood by the term " abeyance " ? 105.
 
 1 7 I LAW TUACTS. 
 
 That interval during whicli the immediate freehold is with- 
 out an owner. 
 
 5. What is the leading rule with respect to freeholds ? 88, 89. 
 
 That it be not ])ut in abeyance by the act of the party ; 
 though by act of law it may : as in the instance of an incum- 
 bent's death, till his successor be inducted. 
 
 G. What is the consequence of this rule, condensing the three points 
 of the author into one general answer ? 89, 90. 
 
 That an estate of freehold in lands, as also in incorporeal 
 hereditaments already created, cannot be made to commence 
 on a future day or event, or be limited to exist at intervals only 
 and not continually, unless by way of remainder preceded by 
 an estate of freehold, in which case the remainder must vest 
 during the continuance of the particular estate, or eo instantc 
 that it determines. 
 
 Note. Feoffment to A and B during their joint lives, — 
 habendum to A, every Monday, Wednesday and Friday ; 
 and to B, every Tuesday, Thursday, Saturday and Sunday, 
 is good — Semb. (and see 1 Coke, 87. et inf. Qu. 19.) 
 
 7. Is the grant of a rent or incorporeal hereditament de novo to 
 
 commence infuturo, good or bad ? 90. 
 
 Good. 
 
 8. Is the gi*ant of a freehold remainder infuturo, good ? 91. 
 
 No : as in the instance of a feoffment to A for life, remainder 
 to B in fee — if B grants a freehold to C after next Mi- 
 chaelmas, the grant is void. 
 
 9. What is the consequence of a grant of an immediate estate of 
 
 freehold to a person unborn ? 91. 
 
 The grant is simply void. 
 
 10. If a term be granted to commence at Michaelmas next, with 
 remainder to A for life, and the deed be immediately per- 
 fected by delivery of seisin, what is the consequence ? 92 
 to 94. 
 
 The freehold remainder is void, as being to commence in 
 futuro, but the term is good ; tliou^h, if the deed liad not been
 
 LAW TRACTS. 175 
 
 perfected till after the time when the term is to commence, the 
 remainder would have been good. 
 
 1 1 . By what means may a freehold limitation in futuro be made 
 
 good ? 95. 
 
 By proving an existing estate of freehold for all the time 
 that the freehold on the face of the deed appears to be in 
 abeyance. 
 
 12. Do the future words invariably mark the commencement of the 
 
 estate in interest ? 95. 
 
 No : they may be construed to mark the commencement of 
 the estate in possession. 
 
 13. Name the four instances wherein this construction may take 
 
 place ? 95, 96. 
 
 1st. In the case of a feoffment to A for life, and after the 
 death of himself and wife to B in fee ; if it can be proved that 
 the wife had a life estate by some other deed, the remainder 
 will be good. 
 
 2d. In the case of an habendum to one for life after the 
 death of A — Proof that A is already seised of the freehold 
 for life, will make the habendum good. 
 
 3d. So in the case of a grant of the reversion, when, after 
 the death of the tenant for life, it shall fall: — and 
 
 4th. If A be seised of a reversion expectant on an estate tail 
 and devise it after failure of the issue of the tenant in tail, it 
 has been held to be an immediate devise of the reversion, to 
 commence after the determination of the estate tail. 
 
 14. Will this construction prevail where the existing estate deter- 
 
 mines at one time, and the future estate commences at 
 another ? 97. 
 
 No, because the future words cannot be construed to be 
 words merely marking the commencement of estate in pos- 
 session, inasmuch as the possession may not certainly take 
 effect at that time. 
 
 15. What limitations do not fall within the doctrine of abey- 
 
 ance? 98. 
 
 Grants upon condition, limitations by springing use, gifts by 
 devise, and declarations of trust.
 
 170 LAW TRACTS. 
 
 1(). If an estate be limited to A for five years provided tliat if he pay 
 the grantor oO/. within two years, he shall have the fee — where 
 does the freehold reside till the money is paid ? 102. 
 
 In the grantor. 
 
 17. In the case of a conveyance to uses, to take effect on a contin- 
 
 gency, or in the case of executory devises — what becomes of 
 the freehold till the estates vest ? 103. 
 
 In the first case the freehold results to the grantor, and in 
 the second it descends to the heir-at-law of the devisor. 
 
 18. Why are trusts exempt from the rules respecting abeyance ? 103. 
 
 Because the legal freehold is in the trustee ; and it is 
 not essentially requisite that there should always be a tenant 
 of the equitable freehold. 
 
 19. What is the effect of a feoffment to A and his heirs to hold on 
 
 every Monday, and to B and his heirs to hold on every Tues- 
 day, and so alternately every other day ? 104, 108. 
 
 It is void, because no writ could be sued on one day which 
 would not be abated on the next. (Ante Qu. 6.) 
 
 5^0. Wliat, if the estate of freehold be suspended for any interval of 
 time? 104. 
 
 The limitation is void. 
 
 21. May the limitation of a rent de novo be with a clause of suspen- 
 
 sion? 104, 111. 
 
 Yes, because the modus donationis may at its creation be 
 modelled into any shape ; whereas if the incorporeal here- 
 ditament be already created, any suspension of its continuance 
 would create an inconvenience, and render the suspending 
 grant void. 
 
 22. What is one cause of the law's abhorrence of an abeyance ? 
 
 106, 107. 
 
 Because in the case of a feoffment, it is requisite that the 
 estate should pass out of the grantor ; but if there be no one 
 to take it the estate cannot so pass, but will remain in ♦^he 
 grantor, and so the grant be of no effect and void. The estate 
 cannot be in nubibus till some one can take, as that would be 
 inconvenient.
 
 LAW TRACTS, 177 
 
 23. In a partition it is limited that one parcener and her heirs shall 
 
 hold for one half year, and the other parcener and her heirs for 
 the other half year, is this partition good ? 112. 
 
 Yes, for the estate is permanent as to the duration of inte- 
 rest, though it shifts as to the possession ; and it is contended 
 that this bears no resemblance to a limitation every alternate 
 day, &c. — sed qtuere. 
 
 24. What other rule relates to the doctrine of the freehold ? 113. 
 
 That a right or title to lands of an estate of freehold cannot 
 be barred by a collateral recompence : there must be a con- 
 veyance. 
 
 25. Of what two species are estates of freehold ? 114. 
 
 Either of inheritance, or 
 Not of inheritance. 
 
 26. What is the peculiar mark of an estate of inheritance ? 114, 115. 
 
 That it confers a right of perpetual transmission to heirs as 
 to individuals, and to successors as to corporate bodies. 
 
 27. How are estates of inheritance divided? 114, 
 
 Into fees simple and fees tail. 
 
 CHAP. II. 
 
 Section 1 . 
 
 OF ESTATES IN FEE. 
 
 1. Name the four species of fees ? 115. 
 
 1st. Fees simple. 
 2d. Determinable fees. 
 3d. Qualified fees. 
 4th. Fees conditional. 
 
 2. What is an estate in fee simple? 116. 
 
 It is the most ample estate of any : it is not restrained in 
 descent to any particular heirs, and it confers an unlimited 
 power of alienation. 
 
 X
 
 178 LAW TRACTS. 
 
 3. What does the term " fee" express? 117. 
 
 The genus of estates ; and the epithets simple, qualified, &c. 
 describe the species. 
 
 4. What is a determinable fee ? IIT. 
 
 An interest that may continue for ever, but to which is an- 
 nexed some circumscribing event as a bound to its conti- 
 nuance. 
 
 5. Adduce the five examples of this species of estate? 117, 118. 
 
 Limitation to A and his heirs — 
 
 1. Tenants of the manor of dale. 
 
 2. During such time as a certain tree shall stand. 
 
 3. Wliilst another person has heirs of his body. 
 
 4. Till the marriage of B. 
 
 5. Till C returns from Rome. 
 
 6. Is a determinable fee destroyed or rendered absolute by trans- 
 
 fer ? 118. 
 
 It is neither destroyed nor rendered absolute, but the 
 determinable quality follows the estate in the hands of the 
 person to whom it is transferred. 
 
 7. A fine by tenant in tail passes what estate ? 118. 
 
 A fee determinable on the death of the tenant in tail and 
 default of the inheritable issue. As if tenant in tail male levies 
 a fine to the use of A — A takes a fee descendible to his heirs 
 general, determinable by the death of the tenant in tail and 
 default of heirs male. This estate is called a base fee by 
 some, but its proper denomination is a determinable fee. 
 
 8. What is the consequence of this estate devolving on one who is 
 
 in the line of entail? 120. 
 
 It still retains its quality of a base or qualified fee. 
 
 9. How may a determinable fee become absolute without any act of 
 
 the party? 120. 
 
 By the death of the person on whom the determinable 
 quality depends before the specified act has been performed. 
 As in the instance of a gift to A and his heirs till B returns 
 from Rome ; — if B dies at Rome, A becomes seised in 
 fee simple.
 
 LAW TRACTS. 179 
 
 10. What two circumstances will at all times make a determinable fee 
 
 absolute ? 121, 1^2. 
 
 1st. A release from the person entitled in reversion in the 
 event of the fee determining ; and 
 
 2d. The impossibility of the event happening. 
 
 11. What is understood by a qualified fee ? 122. 
 
 Such as is limited to certain heirs, but not confined to the 
 issue of the grantee's body, (that being an estate tail) ; as 
 in the instance of a limitation to one and his heirs on the part 
 of his father. 
 
 12. Limitation to A and his heirs of the body of his father, gives A 
 
 what estate — and why ? 124. 
 
 A takes a qualified fee ; — he does not take a fee simple, be- 
 cause the heirs to whom the estate is to descend are not heirs 
 general, but confined to a particular class of heirs ; he does 
 not take an estate for life, for the word heirs is superadded, 
 and his son would be his heir on the part of his father ; 
 and he does not take an estate tail because the heirs are not 
 confined to the issue of his own body, — his brother may take 
 on default of his own issue, (for the brother is his heir on 
 the part of his father), but if the brother were of the half 
 blood, then, although he might be heir on the part of the 
 father, yet he would not be A's heir, and so could not take. 
 This limitation therefore gives a fee qualified to a certain 
 class of heirs. 
 
 13. How is a limitation to A and the heirs of the body of his father 
 
 construed? 124, 125. 
 
 So as to give A an estate for life only, the limitation being 
 construed to confer two estates — viz. the one on A for life, — 
 the other on the heirs of the body of the father, for an estate 
 tail. A takes a hfe estate only, because although the word 
 ** heirs" is added, yet it does not say his heirs ; and the heir 
 of his father's body may not be his heir. Suppose A to have 
 hving a father, an elder brother, and a son, now A's heir 
 would be his own son, but his eldest brother would be the 
 father's heir; and so the heir in tail. In the instance of a gift 
 to A for life, with remainder to the heirs of B, who is living, 
 the heirs of B take a contingent remainder in fee, during B's 
 lifetime : so a gift to A for life, remainder to the heirs of the
 
 180 LAW TRACTS. 
 
 body of B, (livintj B,) the heirs of the body take a contingent 
 remainder in tail during their father s hfetinie : — so in the 
 Hniitation hi question there is first a gift to A for life with a 
 contingent remainder to the heirs of the body of his father, 
 (supposing him to be living,) which heir of the body, A 
 himself may eventually become, on which union of the estates 
 a merger of the life interest would be effected ; but till the 
 father's death, the estate tail is in abeyance. (See postea, 
 Estate tail, ch. 3. s. 2.) 
 
 Ik In the instance of a limitation to the right heirs of a person to 
 whom no previous estate of freehold is limited — Do the heirs 
 take by descent or by purchase ? 125. 
 
 By purchase. 
 
 1 5. What is the effect of a person limiting the ultimate remainder to 
 
 his own right heirs ? 126, 127. 
 
 ^ The limitation will be void, and the use will result to the 
 
 grantor, as a vested interest, in the same plight as it existed 
 before the conveyance made. Thus, if he held it by descent 
 ex jKirte materna, the reversion will still devolve in that 
 course of descent. 
 
 16. Limitation to and to the use of B and his heirs during the life 
 
 of A, in trust for A for life, remainder to the heirs of the body 
 of A, gives A and his heirs what estate? 127. 
 
 A takes a trust estate for life, and his heirs an estate tail by 
 purchase, because the remainder being of the legal estate 
 cannot coalesce with the prior particular equitable estate 
 in A. 
 
 1 7. Lease to husband for life, remainder to the heirs of his wife, — the 
 
 husband and wife die leaving a son, who dies without issue, 
 shall the paternal or maternal heirs inherit — and why? 127. 
 
 The paternal heirs shall inherit, because the limitation 
 vested a fee in the son as a purchaser : whereas if the son 
 had taken by descent from his mother, the paternal heirs 
 would have been excluded. 
 
 I S, What is the principal characteristic of a qualified fee ? 129. 
 
 That it confers on the owner a limited power of alienation, 
 and not that it is confined to a certain class of heirs, for on
 
 LAW TRACTiJ. 181 
 
 that ground every maternal estate would be a qualified 
 fee: whereas such an estate gives an unlimited power of 
 alienation. 
 
 19. What is the distinction between a limitation and a devise to one 
 
 and his heirs male, or female? 129, 130, 134. 
 
 At the common law the limitation to the males is rejected as 
 repugnant to the rules of descent, and a fee passes, but in a 
 devise it is good and gives an estate tail male or female. 
 
 20. What is conferred by a gift or devise to a man and his heirs on 
 
 the part of his mother? 130, 134. 
 
 The words on the part of his mother are incompatible and 
 rejected, and the paternal heir inhei-its. 
 
 21. Does a release of the reversion after a descent of the qualified 
 
 fee, alter its descendible quality ? 130. 
 
 Yes ; the releasee will become the first purchaser of an 
 estate in fee simple. 
 
 22. Is not every qualified fee also a determinable fee ? 131. 
 
 Yes : but since it is restrained to a class of heirs, it is very 
 distinguishable from a determinable fee, and is appropriately 
 enough denominated a qualified one. 
 
 23. When does a qualified fee lose its qualification and become a 
 
 determinable one ? 132. 
 
 When the tenant conveys to another, as then the grantee 
 has a fee determinable on default of the particular heirs of the 
 grantor. 
 
 24. If a feoffment be made on condition that the feoffee shall re-en- 
 
 feoft' many men in fee and their heirs, and they die, whereby 
 the re-enfeoffinent should be made to the heir of the survivor, 
 why does Littleton say that the habendum should be to such 
 heirs " and the heirs of him which surviveth " ? 133. 
 
 Because if the habendum had been to the heir and his 
 heirs for ever, this discrepancy would have ensued: let A 
 be the survivor and marry B, and have issue a son, C ; then 
 if the re-enfeoftment were to C and his heirs, C would be 
 a purchaser, and on his death without issue and failure of 
 paternal heirs, the estate would descend to his heirs on the
 
 18$| LAW TRACTS. 
 
 part of B his mother, — which is contrary to the intent of the 
 condition : — whereas if the habendum had been to C and the 
 heirs of his fother B, then in the case supposed of B's death 
 witliout heirs, the estate would not go to the maternal heirs, 
 but revert to the donor. 
 
 25. Suppose the survivor had been a woman, would Littleton's 
 habendum have been proper then — and why? 137. 
 
 The liabendum would not have been proper, because if the 
 habendum had been to C and his heirs on the part of his mo- 
 ther, it has been shown that the words "on the part of his 
 mother" would be rejected as contrary to the rules of de- 
 scent; and therefore it would be improper to insert in the 
 habendum any thing that would be rejected: consequently 
 the conveyance must be made in the only way it can be made, 
 viz. to C and his heirs. 
 
 Note. Therefore if a woman survive, the heir takes the fee 
 simple : if a man survive, the heir takes a qualified fee 
 only. 
 
 56. What, if the course of descent prescribed by the limitation vary 
 from the course marked out by law ? 136. 
 
 The former will be rejected, but so much of it will be re- 
 tained as can legally operate. 
 
 27. Illustrate this by an example. 
 
 Limitation to A and his heirs of the body of his father is 
 good, because the course of descent is bounded only and not 
 turned out of its regular channel, whereas the legal current is 
 stopped by a limitation to A and his heirs of the body of his 
 mother, or to A and his heirs female; and the case of a mater- 
 nal estate cannot interfere here, as the collateral heirs inherit 
 that species of estate. 
 
 28. What are the only means whereby a qualified fee can be made 
 
 absolute? 137. 
 
 By a grant or release of the possibility of reverter. 
 
 29. What is a conditional fee? 137. 
 
 It occurs where a fee is already limited but to which is af- 
 terwards annexed a condition whereby that fee is liable to 
 be defeated.
 
 LAW TRACTS. 183 
 
 Hence it may be inferred that a fee may be limited on a fee 
 in effect ; but it should be remembered that no one can take 
 advantage of a condition but the grantor and his heirs. 
 
 30. How may a conditional fee become simple ? 138. 
 
 By performance of the condition ; by release thereof eo no- 
 mine before broken ; and after breach, by release of the right 
 of entry. 
 
 31. Limitation to one in fee, to commence on the performance of a 
 
 condition is properly called what? 138. 
 
 A limitation on condition, as distinguished from a con- 
 ditional fee. 
 
 32. To what species of gift does a limitation on condition more 
 
 particularly apply at this day ? 139. 
 
 To gifts of hereditaments out of the statute de dotiis, (not 
 being tenements) in such a way that if they were within the 
 statute they would confer estates tail. 
 
 33. What does a limitation to a man and his heirs during the life of 
 
 C, pass ? 139. 
 
 An estate of mere freehold, and not a fee ; it is not 
 strictly an estate of inheritance, but properly a descendible 
 freehold. 
 
 34. Who are successors to descendible freeholds ? 140. 
 
 The heirs if specially named, otherwise the executors as 
 occupants. 
 
 35. What is one chief quality of a fee ? 140. 
 
 That it may continue for ever. 
 
 36. What distinction arises between a limitation to A and his heirs 
 
 during B's widowhood, and a limitation to A and his heirs till 
 B returns from Rome ? 140. 
 
 In the first case A's estate must determine within the period 
 of a life, whereas in the second case it may continue for ever. 
 B is sure to die, but it is not certain that he will return from 
 Rome. The first limitation confers an estate of mere free- 
 hold, the second a determinable yi?^.
 
 ISl LAW TUACTS. 
 
 87. Will the mere possibility of a limitation to a man and his heirs 
 (letcrininii)<4 within the period of his life, qualify it to an estate 
 of mere freeholds 141, 14;^. 
 
 No, unless it will certainly so determine. 
 
 38. Limitation to a man and his heirs, so long as B has heirs of his 
 
 body, or until C marries, conveys what estate ? 141, 142. 
 
 An estate in fee determinable on default of B's heirs in the 
 one case, and C's marriage in the other. 
 
 Quaere — Is not the second limitation such as is bounded by, 
 or must necessarily happen within a life ? 
 No, it may never happen. 
 
 39. May a fee be limited in remainder of a fee ? 143 to 14T. 
 
 No, not even a fee on a determinable or conditional fee at 
 common law by grant of the party, except in the case of an 
 estate tail, or where the first fee does not vest in interest ; in 
 which case, how^ever, the fees are said to be concurrent, and 
 not ill remainder one of the other. The same may be said of 
 limitations of use and declarations of trust, for though a fee 
 may by means, uses, and trusts, be apparently limited on a 
 fee, yet it is not by way of remainder, but as a substituted 
 shifting or concurrent vise or trust in fee. 
 
 4-0. Is a limitation to A and his heirs so long as B has heirs of his 
 body, with remainder in default of such issue to C in fee, a 
 good remainder ? l^^. 
 
 Certainly not, because it is a fee limited on a determinable 
 fee, though Vaughan C. J. doubts it, on the ground that since 
 there may be a reversion of a base fee, there may also be a 
 remainder. It should how^evcr be remembered that tliis re- 
 version does not arise by grant of the party. 
 
 41. Distinguish a determinable from a base fee ? 
 
 A base fee can only arise by alienation of tenant in tail ; a 
 determinable fee, though depending on the same event as a 
 base fee, has nothing to do with an estate tail, the de*;erminable 
 quality being prefixed by the original grant. 
 
 42. Substitute the grantor for C in the 40th question, and would the 
 
 remainder be then good ? 144.
 
 LAW TRACTS. 185 
 
 Not as a remainder, but a similar estate would revert to 
 the grantor by act of law, which is allowed ; and therefore by 
 act of law a fee may exist on a fee, as in the instance of a 
 base fee created by the fine of a tenant in tail, the remainder 
 in fee is still subsisting in the original remainder-man. 
 
 43. Grant to B for life, remainder to C and his heirs, provided he 
 shall outlive B, but if C shall die in B's lifetime, then to B and 
 his heirs — is the remainder to B valid? 145, 146. 
 
 Considering the limitation to B not as remainder but as a con- 
 current fee, it is good ; for in that light it is not a fee on a fee, 
 and supposing it to vest he does not enter as the person enti- 
 tled to take advantage of the breach of the condition annexed 
 to and determining C's fee, but as the alternate remainder-man 
 supported by B's life estate. It is in fact the case of two al- 
 ternate remainders depending on the same particular estate, 
 and not on one another, in which case both remainders are 
 contingent, and are liable to be destroyed by destruction of 
 the particular estate — and in that event the estate would revert 
 to the grantor in fee, so that in this instance there are three 
 fees on one particular estate : 
 
 fee 
 life 
 
 life fee fee 
 
 fee 
 
 fee on fee. concurrent fee. 
 
 44. Is there no way then of limiting a fee simple on a fee simple ? 147. 
 
 None, except by shifting use and executory devise, and then it 
 cannot be done by way of remainder. 
 
 Section 2. 
 
 OF THE CREATION OF ESTATES IN FEE IN DEEDS. 
 
 45. Name the principal modes of assurance? 148. 
 
 1. Matter of Record, as by fine or recovery; 2. Deeds; 
 and 3. Devise. 
 
 46. By what five species of deeds will land pass? 148. 
 
 1. By feoffment; 2. Bargain and Sale; 3. Covenant to stand 
 seised ; 4. Grant ; and 5. Release by Enlargement. 
 
 Y
 
 liS() LAW TRACTS. 
 
 47. By which in particular will lands in possession pass, and which 
 
 will pass reversions and things lying in grant. 
 
 By the first three, lands in possession will pass ; and by all 
 except the first, will lands in reversion and things lying in 
 grant pass ; and qucere, if not by the first also, if it can have 
 no other operation. 
 
 48. Is it essential that the word heirs be inserted in grants of the 
 
 fee? 148, 149. 
 
 Yes, or words tantamount thereto, or such as necessarily 
 imply the intention to be that the estate shall descend to heirs. 
 
 49. Give the four instances, where the fee will pass, without the ex- 
 
 press mention of the word " heirs " ? 149. 
 
 1. Grant to a parson and his successors, gives the fee. 
 
 2. So grant to an aggregate corporation generally gives the 
 
 fee. 
 
 3. So if tenant in fee grants to one to hold as fully as they 
 
 were granted to him. 
 
 4. So grant of two acres to B to hold one to A and his heirs, 
 
 and the other to B inform aforesaid. 
 Qucere — What estate would B have supposing ** in form 
 aforesaid" omitted? 
 
 50. Are the words "assigns for ever" a necessary adjunct to the 
 
 word " heirs " in the creation of a fee? 150, 151. 
 
 No, they convey notliing : as, if an estate be given by deed 
 to one and his assigns for ever, he takes for life only. 
 
 51 . What passes by a limitation in a deed to ** a man in fee simple " ? 
 
 151. 
 
 An estate for life only, for want of the word " heirs." 
 
 52. And Avhat by a limitation in a deed to one and his successors, or 
 
 to a parson generally eo nomine? 151, IGO. 
 
 An estate for life only. The term parson is applied to the 
 person, without any reference to successors. 
 
 53. And what by a limitation in a deed to a parson and his heirs ? 151 . 
 
 An estate for life, because the word heirs will not pass a fee 
 to a corporation, and it is then rejected as surplusage.
 
 LAW TRACTS. 187 
 
 54. And what by a limitation in a deed to a sole spiritual corporation 
 
 in ' ' frankalmoign " ? 151. 
 
 A fee by that word. 
 
 55. What is considered surplusage in a limitation to A, his heirs and 
 
 successors ? and what in a limitation to a sole corporation, his 
 heirs and successors ? 152. 
 
 The word " successors " in the first instance, and the 
 word " heirs " in the second. 
 
 56. What passes by a limitation in a deed to a man and his heir? 153. 
 
 An estate for life only, semb. — sed qucere, as heir is nomen 
 collectivum, and there can be but one heir at a time. 
 
 57. And what by a limitation in a deed to ** two and heirs, " or to 
 
 " two and his heirs " ? 
 
 An estate for the life of the longest liver only, the words 
 ** heirs " and " his heirs " being senseless on account of the 
 uncertainty. 
 
 58. And what by a limitation in a deed to a man or his heirs ? 154. 
 
 A life estate only : contra in wills. 
 
 59. And what by a limitation to a man and his heirs or assigns? 154. 
 
 A fee-simple. 
 
 60. What twofold office has the word " heirs " when it is a word of 
 
 purchase? 155. 
 
 It not only describes the person but limits the quantity of 
 
 his interest in the estate. 
 
 61. To what species of conveyance are the rules respecting the word 
 
 " heirs," and the want of that word, confined ? 155. 
 
 To common law assurances which pass an estate by convey- 
 ance in pais, as distinguished from conveyances by matter of 
 record, where the fee passes without inheritable words. But 
 it is confined to common law assurances only when made to 
 natural persons and sole corporations and of the legal estate. 
 
 62. What passes by a limitation in a deed to a corporation aggregate 
 
 generally ? 157. 
 
 An estate in fee, on account of the perpetuity of the body.
 
 188 LAW TRACTS. 
 
 63. And what by a limitation to them for their lives ? 157, 158. 
 
 An estate for the existing lives of the corporate body, [and 
 not the life of the longest liver.] 
 
 04. Can a corporation aggregate take a chattel interest in succes- 
 sion ? 158, 159. 
 
 Yes ; but a corporation sole, as such, cannot take a chat- 
 tel, though Umitcd to him and his successors. It will go to his 
 executors in the same manner as a limitation of a chattel 
 interest to a natural person and his heirs will pass it to his 
 executors. 
 
 65. May a sole corporation take a fee without words of succession? 
 
 160. 
 
 Yes, if it be such as includes continuity and perpetuity of 
 succession, as in the instance of a gift to the church of A, 
 that passes the fee ; but a gift to a parson generally gives him 
 an estate for life only. 
 
 66. Gift to the school of B, gives what estate ? 161. 
 
 An estate in fee. 
 
 67. Gift to the " King " generally, confers what estate? 161. 
 
 An estate in fee, for he can take in no other right than of 
 his crown: but this is doubted without reason, as it should 
 seem, for the King never dies. 
 
 68. A fine passes what estate, and why? 162. 
 
 A fee without words of succession, because the agreement 
 is founded on the supposition of a previous feoffment in fee. 
 
 69. What estate passes by a common recovery, and why? 163. 
 
 An estate in fee, because the recoveror is supposed to come 
 in oriiis former estate, which, according to the nature of the 
 writ he i-esorts to, is a fee. 
 
 70. If a yearly sum be allotted to one of coparceners on partition for 
 
 equality, how is it held? 164. 
 
 In fee, without inheritable words, since the land in lieu of 
 which it was received, M^as held in fee. — [Suppose the land 
 had been held in tail, then the rent would only have been in 
 tail -, Bro. tit. Part. pi. 225.'\
 
 LAW TRACTS. 189 
 
 71. Does the same law hold on a partition of joint-tenants and tenants 
 
 in common? 164. 
 
 This point has not yet been decided, but it should seem 
 that it would. 
 
 72. What estate passes oh partition without inheritable words? 165. 
 
 Such as each party previously had in the entirety. 
 
 73. Are rents granted for owelty of exchange necessarily in fee ? 165. 
 
 No: it seems they must have inheritable words to make 
 them so. 
 
 74'. What passes by a general release of all right from one coheir 
 to another, or one joint-tenant to another ? 166. 
 
 The fee, or rather such interest as the granting party has 
 in the land, without the word " heirs. " 
 
 75. Does the same law hold with regard to a release from one tenant 
 
 in common to another ? 167. 
 
 No. 
 
 76. What other three species of deeds convey fees without words of 
 
 limitation? 167. 
 
 1st. Releases of right in extinguishment. 
 
 2d. Releases of interest out of lands to the owner of the 
 fee, as of rents, &;c. ; and 
 
 3d. Confirmations to tenants in fee. 
 These pass or extinguish a// the rights of the releasing or con- 
 firming parties, whether in fee or otherwise. 
 
 77. May these species of grants be restrained by qualifying words ? 168. 
 
 Yes, except in the instance of a release of a mere right, 
 which cannot be restrained to a particular time, as to a month 
 or a day : such a release for an instant operates for ever. 
 
 78. If it be wished not to extinguish the right entirely, what is the 
 
 proper assurance ? 169. 
 A deed of confirmation. 
 
 79. Are the words " all my right " requisite in releases which pass 
 
 the fee without the word " heirs " ? 170. 
 It should seem not.
 
 IDO LAW TRACTS. 
 
 80. Will an equitable estate pass without the express mention of 
 
 the word *' heirs " ? 171. 
 
 Yes, if from the contract that intention can be clearly col- 
 lected. 
 
 81. If A purchases in fee, in trust for B, what estate will B be enti- 
 
 tled to ? 171. 
 
 A legal estate in fee. 
 
 82. Gift to A and his heirs in trust for B, — what estate passes to 
 
 B? 171. 
 
 An equitable estate in fee. 
 
 83. If A contracts for the purchase of land generally, what estate 
 
 will he have in it? 171. 
 
 He will be entitled to a conveyance of the legal estate 
 in fee. 
 
 Note. Trusts are subject to the same rules as legal 
 estates, with this addition, that equity supplies omis- 
 sions. — Conveyance by equitable owner to one general- 
 ly gives him an estate for life, but conveyance to A hi fee 
 or for ever, &c. gives the fee, — equity extracting an 
 intention to pass an estate of inheritance from the words 
 ** in fee," and '* for ever." 
 
 Section 3. 
 
 OF THE CREATION OF ESTATES IN FEE IN WILLS. 
 
 84. Is the word ** heirs " necessary to pass a fee in a will ? 172. 
 
 No, if an intention to give such an estate can be otherwise 
 collected. 
 
 85. From what, in the first place, may an intention to pass the fee be 
 
 collected? 174. 
 
 From express words giving the fee, other than by the word 
 "heirs," in direct limitation. 
 
 8G. Adduce the fourteen instances enumerated by the Author, where 
 other words than the word " heirs " in direct limitation have 
 been held to pass a fee. 176.
 
 J.AW TRACTS. 101 
 
 Devise to A, 
 
 1. For ever. 
 
 2. To him and his assigns for ever. 
 
 3. To him in fee simple. 
 
 4. To him and his successors. 
 
 5. To him and his executors. 
 
 6. To him and his blood. 
 
 7. To him and his heir. 
 
 8. To him or his heirs. 
 
 9. To him to give, sell, or do therewith at his 
 
 pleasure. 
 
 10. To him to dispose thereof at his pleasure. 
 
 11. To him to be at his discretion. 
 
 12. To be at the discretion of A. 
 
 13. That A shall be testator's heir. 
 
 14. That A shall be heir to a previous tenant for life. 
 All these give the fee. 
 
 87. Does a general power of disposition confer any estate ? 179. 
 
 Yes ; an estate in fee in the donee of the power. 
 
 88. What passes by a devise of lands to A, to be disposed of for 
 
 herself and children at her own will and pleasure ? 180. 
 An estate in fee. 
 
 89. And what by a devise of lands to A for life, and then to be at 
 
 her disposal for any of her children ? 181. 
 
 An estate for life, with power to appoint the fee to any of 
 her children. 
 
 90. Is this general implication of law controllable by express limi- 
 
 tation? 182. 
 
 Yes, as in the instance of a devise of the fee simple of cer- 
 tain lands to a man and his children : this gives an estate tail, 
 [under various qualifications.] 
 
 91. What secondly will pass the fee without the express mention of 
 
 "heirs"? 175. 
 
 A devise which imports a gift of all the testator's estate 
 • and interest in the property devised. 
 
 92. Under what two heads may the cases referrible to this division 
 
 be again divided ? 183.
 
 192 LAW TRACTS. 
 
 1. Those which relate to the effect of the word " estate," 
 and similar comprehensive words; and 
 
 2. Those which pass a fee by means of an introductory 
 clause expressing the testator's intention to dispose of all his 
 estate, or all his substance, or the whole of his interest. 
 
 93. On what ground does the word " estate " standing alone pass 
 
 the fee? 184. 
 
 On this, that it not only describes the property, but extends 
 also to the quantity of the testator's interest therein. 
 
 94. In what adjudged case may the word "estate " be first said to 
 
 have had the effect of passing the fee ascribed to it? 184. 
 
 In Hyley v. Hyley, 3 Mod. 228. 
 
 95. Was it clearly decided in Reeves v. Winnington, that "all my 
 
 estate " would j)ass the fee ? 184, 185. 
 
 No : for the testator first declared that his son and heir 
 should have nothing, and then gave all his estate to his wife, 
 — which rebutted the construction that his wife should take 
 for life, remainder to his son in fee ; as that would exactly con- 
 tradict the words of the will. 
 
 96. What was held in Carter v. Horner? 185. 
 
 That "all the rest of my estate" must signify the testator's 
 interest in the thing, and so pass a fee. 
 
 97. Devise of all the residue of the testator's real and personal estate 
 
 to his wife, after giving 50/. to his heirs — gives what estate ? 
 185. 
 
 A fee simple to the wife, [as the testator clearly meant his 
 heirs to take no more than 50/.] 
 
 98. What was said by Lord Holt as to the word estate, in Bridgwater 
 
 V. Bolton? 187. 
 
 1. That Estate was genus generalissimum. 
 
 2. That it included all things real and personal, and all the 
 testator's interest therein ; and 
 
 3. That a devise of all a testator's estate, and all his estate 
 in such a house, was the, same thing, and passed all his 
 interest in either case.
 
 LAAV TRACTS. 193 
 
 99. What was said by Lord Mansfield of the same word, in Haldane 
 
 V. Harvey? 188. 
 
 That it carried every thing, unless tied down by particular 
 expressions. 
 
 100. What was held in Scot v. Alberry, and what said Wilmot C. S. ? 
 
 188. 
 
 That "all other my estate whatsoever and wheresoever," 
 comprehended all the testator had, real and personal ; — and 
 per Wilmot: If there be an intention to devise a fee, it is im- 
 material what words are used. 
 
 101. What passes by a devise of all the testatoi*'s estate in U, or at 
 U ? 188 to 192. 
 
 An estate in fee ; for though in and at do in fact point to 
 the locality of estate, yet that is no reason why the word estate 
 should be thereby lessened in effect. " All my estate in Eng- 
 land" points to locality ; but no one will say that the fee does 
 not pass thereby. [So all my estate situate in England, will 
 pass a fee, but all my estate situate at Upper Tooting will 
 pass a life estate only.] 
 
 102. What was said by Lord Holt, in Barry ??. Edgworth, as to the 
 word estate? 189. 
 
 That it naturally and primarily signified the interest rather 
 than the subject of the thing devised. 
 
 10.3. And what by Lord Talbot, in Ibbetson J?. Beckwith ? 191. 
 
 That he saw no difference between the words in and at, and 
 in his opinion they meant the same thing. 
 
 104. And what by Buller J. in Cowper v. Martin ? 192. 
 
 That " estate" is the most general word that can be used, 
 and that so far from its being necessary to add words of inhe- 
 ritance in order to enable it to carry the fee, restrictive words 
 must be added if the devise be intended to pass a less estate. 
 
 105. Devise of personalty together -with all the testator's real estate 
 not thereinbefore disposed of — passes what interest ? 191. 
 
 An estate in fee, without doubt. 
 
 106. When does the word estate give a life interest only ? 193. 
 
 z
 
 194 LAW TRACTS. 
 
 When it is descriptive of the situation of the land merely, 
 as, all my estate situate at P, or l//ing in S, or in the occupa- 
 tion of A. — This rule is now relaxing. (See 1 Brod. & Bing. 
 72; 6 Taunt. 410; 7 ib. 35 ; 2 Bing. 456.) 
 
 107. ^^'hen will the word estate not pass real property? 193, 194. 
 
 When it is mixed up with a description of personal chat- 
 tels, as, all my goods, mortgages, estates, debts and other 
 chattels. 
 
 108. Will the words "goods, chattels or estate of tohat kind soever, 
 and all other utensils of husbandry at my farm of T, " pass a 
 remainder in fee in that form ? 195. 
 
 It seems not, as the words following " soever " clearly indi- 
 cate the contemplation of personal estate only. 
 
 109. In what three instances will the word " estate " at all times pass 
 the fee ? 
 
 1. Where it is distinct from an enumeration of personal 
 articles. 
 
 2. Where it begins or ends a sentence, and cannot apply 
 to any thing but real property ; and 
 
 3. Wl. ere the word real is annexed to it, either mediately 
 or immediately. 
 
 110. What were the words in Terrell v. Page, Audrey v. Middle- 
 ton, and Tilley v. Simpson, which were held to include the 
 fee ? 196, 197, 198. 
 
 In the first case the words were : " goods and chattels and 
 all other estate v/hatsoever." 
 
 In the second : " all the rest of my goods and chattels and 
 estate." 
 
 In the third: " all the rest of my money, goods awe? chat- 
 tels and estate whatsoever." 
 
 111. What was Lord Hardwicke's opinion, in case the word " what- 
 soever " had been omitted in the last case ? 200. 
 
 That the real estate would not have been included, as there 
 was not the word " other " as in Terrell v. Page. 
 
 112. What was adjudged in Norton r. Lad ? 202. 
 
 That a remainder in fee passed by the word remainder.
 
 LAW TRACTS. 195 
 
 113. And wlmt in Hodgkinson v. Star, where A devised that his 
 heir should renounce all his right in certain lands to C? 203. 
 
 That C would [by the release] take a fee. 
 
 114. Will the word " mheritance " carry the fee ? 203. 
 
 Yes. 
 
 115. Devise of fee simple to one for life, and after to another gene- 
 rally — what passes? 203. 
 
 An estate for life, and a remamder in fee. 
 
 116. Will a devise of all a man's concerns pass the fee ? 204. 
 
 It has been so held. 
 
 117. What was held in Hopewell v. Ackland, and the anonymous 
 case in Forrester's Rep. ? 
 
 That the words "and whatsoever else I have not disposed 
 of," and " whatsoever else I have in the Avorld, " preceded by 
 a bequest of goods and chattels, would pass real estate in 
 fee, for those words could have no other eftect. 
 
 118. What is the effect of the words " all I am worth"? 203. 
 
 They will pass the fee in the testator's real property : Hux- 
 tep V. Brooman. 
 
 1 19. What was the introductory clause and particular words of de- 
 vise in Hogan v. Jackson ? 207, 208. 
 
 The introductory words were, "as to my worldly substance." 
 The testator then devised to his mother for life, and made 
 several charges on his proi:»erty, concluding by a devise to his 
 mother of *' all the remainder and residue of the effects both 
 real and personal which he should die possessed of " 
 
 120. What was Lord Mansfield's determination in this case, and on 
 
 what principal grounds ? 
 
 His Lordship decided that the residuary clause was suffi- 
 cient to pass the real estates in question to the mother ; for 
 though she had a })revious life estate which seemed to negative 
 the supposition that she was to take more, — yet if the words 
 were sufficient the residue would pass to her, as in Ridout v. 
 Pain: — That the word "effects," coupled with the words
 
 1U(> LAW TKACTS. 
 
 *' remainder" and " real estate," assisted also by the introduc- 
 tory clause and the subsequent words, "all which the testator 
 should die possessed of," was sulKcient to carry the fee to the 
 mother. 
 
 l^'l. M'hat said Lord Mansfield, as to the effect of the introductory 
 clause? 21 1. 
 
 "Introductory words cannot vary the construction of a 
 devise, so as to enlarge the estate of the devisee, unless there 
 are w ords in the devise itself sufficient to carry the degree of 
 hiterest contended for." 
 
 122. What will the words "remainder of real effects " include ? 213. 
 
 The reversion of every thing not disposed of, in which case 
 no words of limitation are requisite. 
 
 123. What is the Authors view of the inti'oductory clause? 216. 
 
 That it will not alone pass the fee ; and that it is at best 
 but a key to explain the testator's meaning. 
 
 124. " As touching the disposition of all my worldly estate I give my 
 house to A, and after his decease to his son ; and I give my heir- 
 at-law, 1*." — what passes to A's son by this devise? 216, 217. 
 
 An estate for life only : Wright v. Russell. 
 
 125. What two points are to be collected from Loveacres v. Blight, 
 
 Dunn V. Gaskin, and Right v. Sidebottom, as to the introduc- 
 tory clause ? 217 to 223. 
 
 1st. That an introductory clause will not alone be suffici- 
 ent to pass the fee ; and 
 
 2d. That the intended disinherison of the heir will not 
 prevent the estate descending to him, though there be an 
 introductory clause pointing to an intention of devising away 
 all the estate by will. 
 
 126. What then is the use of the introductory clause? 223. 
 
 To assist in explaining the testator's intention, where it is 
 not clear. 
 
 127. Will words, which without an introductory clause would not 
 pass a fee, be enlarged by the adciition of that clause? 224.
 
 LAW TUACTS. 197 
 
 Yes, If an intention of complete disposition can be collected 
 from that clause and the words of devise. 
 
 1j28. To what may the introductory clause be likened? 225. 
 
 To the preamble of a statute — which may be resorted to 
 to explain the intention when doubtful, but cannot extend the 
 meaning beyond the express words. 
 
 1^29. What in the third place will pass the fee, without the word 
 "heirs"? 175—226. 
 
 A devise for some purpose or the performance of some act, 
 which necessarily requires, or cannot be accomplished with- 
 out the fee, — the disposition showing what words the testator 
 would have used had he been aware they were necessary. 
 
 130. What passes by a devise to trustees to support trusts of inherit- 
 ance ? 227. 
 
 An estate in fee ; since there is not any difference be- 
 tween a devise to a man for ever, and upon trusts which may 
 continue for ever. 
 
 131. What said Lord Hardwicke on this subject? 227. 
 
 That the fee will pass without the word heirs, if the trust 
 cannot be performed without the trustees taking an estate of 
 inheritance. 
 
 132. If the trust be to sell and convey in fee, what do the trustees 
 take? 228. 
 
 A fee ; for they have a general power of disposition, which 
 we have seen gives an estate in fee as distinguished from a 
 mere power. 
 
 133. Bequest of annuities in fee, with a direction that they are to 
 be faithfully paid by the testator's trustee and executor, 
 without any express devise to the executor, gives him what 
 estate? 229,230. 
 
 An estate in fee, for the annuities are in fee and his estate 
 must necessarily be co-extensive. 
 
 131'. Devise to A, he paying thereout I-Oa. a year to B, what estate 
 does A take? 230, 231. 
 
 An estate of inheritance-: for if he only took for life, the
 
 193 LAW TRACTS. 
 
 annuity might fail by his dcutli in the hfetime of the annui- 
 tant, wliich would be contrary to the testator's intention: 
 Badelcy v. Lipiiiiigwell, Read i\ llalton. 
 
 133. Bequest of annuity to A to be paid out of estate called G, and 
 devise of same estate to B, freely to be enjoyed, passes what 
 estate to B ? 231 to 2.34'. 
 
 The fee ; the words freely Sec. meaning free of all limita- 
 tions, since they could not mean, free of all charges, as the 
 testator had himself previously charged it with an annuity. 
 
 136. What said Lord Mansfield, in the introduction of his judgment 
 in Loveacres r. Blight? 234. 
 
 1st. That a devise to A to be sold for payment of debts, gives 
 A the fee without words of limitation ; and 
 
 2d. That where a thing is directed to be done which can- 
 not be done with an estate for life, the Court will imply a fee. 
 
 lo7. What was the ground of decision in Ansley v. Chapman? 235. 
 
 That since the annuity charged on the property was not 
 charged by the will, but attached previously by bond vuider 
 seal, it would continue charged on the property notwitlistand- 
 ing the devisee took a less estate than a fee, as for life only. 
 
 138. What fourth!// will pass the fee without the word "heirs"? 
 
 175, 236. 
 
 A devise to A, who is made personally liable to some annual 
 or gross payment, and who, if he took not the fee, would be 
 injured instead of benefited by the devise. 
 
 139. What two circumstances must concur that this rule of construc- 
 tion may prevail ? 237. 
 
 1st. Tlie devise must be general without any limitation of 
 estate, as not to one for life, subject &c. — for this would re- 
 but the persumption of a fee ; and 
 
 2d. That the devisee may be called on to pay the money or 
 legacy before he will certainly have received it by the rents 
 and profits of the estate. 
 
 140. Will the value of the estate, the postponement of payment, or 
 the actual receipt of a gross sum or legacy, prevent tlic opera- 
 tion of the rule — and why ? 238.
 
 LAW TRACTS. 199 
 
 The operation of the rule will not be prevented by any of 
 these circumstances ; for the Court views the situation of the 
 parties at the time the testator was compiling his will, and 
 then it was not certain that the devisee would have received 
 the money before he was called on to pay it. 
 
 Ml. What principal circumstance induces this construction? 239. 
 
 The prevention of the most remote possibility of loss to the 
 devisee. 
 
 112. If the sum be to be paid out of the rents when, as, or after 
 they are received — what estate passes by a devise subject to 
 a payment to be so raised ? 239. 
 
 An estate for life only ; for the devisee can sustain no loss, 
 inasmuch as he cannot be called on to pay before he has 
 received the sum charged. 
 
 14>3. Name the distinction in Colyer's case. 240. 
 
 If the land be devised to A, to the intent that with the pro- 
 fits he pay B a sum, he takes for life only, as he is sure to sus- 
 tain no damage. But if the devise be to the intent that he pay 
 B 20s., he takes the fee, for after payment he may die before 
 he has received satisfaction. 
 
 14 k What, particularly, was held in Wellock v. Hamond? 242. 
 
 That though one or two years' rents of the estate may 
 exceed the sum charged, yet the devisee shall take the fee in 
 recompense. 
 
 145. What other instances are adduced of the application of this 
 rule? 242. 
 
 Three : viz. that if instead of a charge the devise be, 
 
 To release a debt; 
 
 To buy an estate ; or 
 
 To relinquish a right ; 
 The devisee takes an estate in fee. 
 
 1 IG. What alternate questions arise in cases of this description ? 
 242, 243. 
 
 1st. Whether the devisee be charged personally; or 2d, 
 whether he is charged for the profits as he receives them.
 
 ?J()0 LAW TRACTS. 
 
 117. What other mstauce does the Author adduce of a lee arising by 
 mere impUcation ? 24.'3. 
 
 This, that if A devise to B, and if he (B) shall die under 
 2 1 , then over to the testator's heir — this gives A on his attaining 
 21 the fee; or rather, perhaps, he has the fee subject to be 
 defeated ])y the executory devise over in fee: and this, on the 
 ground that the testator could not mean to devise it away 
 from A if A attained his majority, it being only in case of his 
 death under that age that the estate is to devolve on his 
 own heir. 
 
 lis. What caution does the Author suggest in the conclusion of 
 this chapter ? 214. 
 
 That it is proper to add in a will, the words that limit 
 estates in deeds, and not to trust to implication of law. 
 
 CHAP. III. 
 
 Section 1 . 
 
 OF CONDITION AX FEES. 
 
 1. What are conditional fees ? 248. 
 
 Estates at the common law as they stood before the passing 
 of the statute JJe dotds. 
 
 2. What is the nature of the condition annexed to this estate ? 248. 
 
 That the donee have issue or heirs of his body, either 
 general or of a particular class. 
 
 3. What was the consequence of his having issue 1 249. 
 
 He took the fee for three purposes : 
 1st. To alien ; 
 2d. To forfeit ; and 
 3d. To charge. 
 
 A. Might the tenant alien before issue born ? 249, 250. 
 
 Yes, he might alien in fee, (for in fact he had the fee im- 
 mediately on the execution of the grant,) but the alienation 
 was liable to be defeated by his death without having had issue.
 
 LAW TRACTS. 201 
 
 5. ^Vliat interest had the issue under this species of gift? 251. 
 
 No more than was common to all heirs ; — for the condition 
 was not added in their favour. 
 
 6. Might a female inherit to a conditional fee limited to a man and 
 
 his heirs males ? 259. 
 
 Yes, when he had lieirs male, as then, the condition being 
 performed, the estate descended to heirs general. 
 
 7. Name the six rules respecting conditional fees ? 2G0, 262. 
 
 1. A conditional fee is either general to all heirs, or qua- 
 
 lified to some in particular, subject to a condition ex- 
 pressed or implied that the donee shall have issue 
 general or special of his body. 
 
 2. All rules applicable to estates in fee are applicable to 
 
 this estate. 
 
 3. The word "males" annexed to the word "heirs" is 
 
 generally rejected as repugnant to the rules of de- 
 scent at common law. 
 
 4. The tenant has the same power of alienation before as 
 
 after the condition performed. 
 
 5. The condition defeats the estate only in the event 
 
 described : and, 
 
 6. On performance of the condition, the fee becomes abso- 
 
 lute if limited generally, and qualified if given under a 
 restriction, in which latter case there necessarily arises 
 a possibility of reverter to the settler. 
 
 8. In what subjects of property may this estate now be had ? 263. 
 
 In all species of property which do not come under the 
 denomination of tenements, for the statute De donis applied 
 to tenements only. Annuities and chattels personal may conse- 
 quently be the subject of conditional fees, if of sufficient per- 
 manency to be inheritable. 
 
 Section 2. 
 
 OF ESTATES TAIL. 
 
 9. What is an estate tail? 264. 
 
 An estate to continue so long as a person has heirs of his 
 body.
 
 202 LAW TRACTS. 
 
 10. What is the difference between a gift to one and the heirs of his 
 
 body, iind, to one and his heirs so long as he shall have heirs 
 of his body ? 2G.J. 
 
 The first is a gift in tail, the second a gift of a determinable 
 or base fee. 
 
 11. Do the rules respecting the limitation of an estate in fee apply 
 
 with equal force to an estate tail ? 265. 
 
 Yes, for an estate tail may be either absolute, or determina- 
 ble and subject to a condition. 
 
 12. What, if the donor of an estate tail have but a determinable 
 
 fee? 265. 
 
 A determinable estate only is created. 
 
 13. What instance is adduced of a determinable estate tail? 265. 
 
 That of the Crown of England, which is limited to the Prin- 
 cess Sophia and her heirs of her body being Protestants. 
 
 14. What effect has a common recovery on an estate tail ? 266. 
 
 It enlarges tbe estate tail into a fee simple, or to an estate 
 commensurate with the interest of the donor of the entail. 
 
 15. Do the issue taking under an estate tail claim by purchase or 
 
 descent? 266-7. 
 
 By purchase perjbrmam doni, 
 
 16. What estate is conveyed by a gift to the heirs of the body of a 
 
 person without any estate to that person, or any words of super- 
 added limitation ? 267. 
 
 An estate tail. 
 
 17. Whence is the origin of estates tail? 267. 
 
 They are clearly deducible from the statute De donis. 
 
 18. What was the principal enactment of the statute De donisl 268. 
 
 That the will of the donor should be observed. 
 
 19. What was the consequence of that enactment with respect to 
 
 the existing rules of law ? 270, 271. 
 
 It either introduced a new estate, or gave a new quality to 
 an old one. By the common law, a gift which prescribed a mode
 
 LAW TRACTS. SOS 
 
 of descent varying from the course of inheritance was void ; 
 but since by this statute the intention of the donor is to be ob- 
 served, all estates falling within the scope of its enactments 
 may be made with limitations varying the common law course 
 of descent, which will be good : as, to one and the heirs male 
 or female of his body. 
 
 20. What is the object of the statute De donis? 271. 
 
 To preserve the estate for the issue from generation to 
 generation after the death of the tenant. 
 
 21. What three divisions does the Author propose as the best classi- 
 
 fication of estates tail ? 272, 273. 
 
 1. As to the extent of interest; 
 
 2. As to the sex which is to inherit ; and 
 
 3. The person or persons from whom the issue is to proceed. 
 
 22. What estate passes by a gift to A and the heirs of the body of 
 
 his father who is living ? 273. 
 
 A takes an estate for life, with contingent remainder in tail 
 to the person who at the time of his father's death is his father's 
 heir-at-law. If that be A himself, then his life estate will merge 
 in the remainder in tail. [See ante. Estate in fee, qu. 12.] 
 
 23. What estate passes by a gift to a man and his heirs of the body 
 
 of his father? 274. 
 
 A determinable fee — not an estate tail, because the persons 
 who are to inherit are not exclusively of the body of the 
 donee. 
 
 24. Upon what ground does the Author reconcile the decision in 
 
 Southcot V. Stowell ? 276. 
 
 That the covenantor took an estate for life by implication, 
 to which the limitation to the heirs of his own body united, 
 and gave him a vested estate tail in remainder. 
 
 25. What conclusion may be drawn from these cases ? 278. 
 
 That an estate tail may be created not only by a limitation 
 to a man and the heirs of his body, but by a limitation to the 
 heirs of the body of a man whether living or dead. 
 
 26. What passes by a gift to A and his heirs of the body of his 
 
 eldest son? 278,291,299.
 
 20i LAW TRACTS. 
 
 An estate tail, passing over the eldest son, of which estate 
 tail A's wife will he entitled to dower. 
 
 21. What persons does such a gift exclude? 278. 
 
 The eldest son and all other children of A, and their issue. 
 
 28. Under this limitation, will the grandson be allowed to succeed in 
 
 his father's lifetime? 291, 299. 
 
 It should seem not, for nemo est hceres viventis. (Et vide 
 Qu. 45.) 
 
 29. What constitutes an estate tail general as to extent of interest ? 279. 
 
 A gift to a man and the heirs of his body, or to the heirs 
 female of his body ; though this latter gift would create a 
 special entail in another respect. 
 
 30. How long does an estate tail continue ? 280. 
 
 As long as there remains the remotest possibility of issue 
 to answer the description in the gift. 
 
 iil. Name the instances mentioned by the Author. 280,281.' 
 
 1. Gift to A (though a hundred years old) and the heirs 
 
 of his body, gives him an estate tail. 
 
 2. Gift to a married man and the heirs of his body on 
 
 the body of a married woman, gives the man an estate 
 tail, for there is a possibility of his own wife and the 
 woman's husband dying, whereby the widower and 
 widow may marry and have issue to answer the gift. 
 
 32. When may an estate tail be said to be qualified? 281. 
 
 When it is limited to descend to a particular class and not 
 to all the issue. 
 
 S3. What passes by a gift to a man and the heir of his body and to 
 one heir of the said heir only? 281, 282, 283. 
 
 A qualified estate tail. We have seen that a gift to a man 
 and his heir passes an estate for life merely to the ancestor, and 
 the heir takes nothing.^ He cannot take as joint-tenant with 
 his ancestor as the copulative and would insinuate, because 
 nemo est hceres viventis, therefore he can take nothing during 
 his ancestor's lifetime, and he can take nothing after his death, 
 because he (the heir) is not named to take as a purchaser by way 
 of remainder, but as successor and heir to his ancestor ; and
 
 LAW TRACTS. 20,") 
 
 a limitation restrained to one heir will not give the ancestor 
 an estate of inheritance, because there is a certainty that it 
 will not continue for ever. — Then with reference to a gift to 
 a man and his heir and his heir's heir, this will pass an estate 
 for two descents at least, and the statute De doTiis directing 
 the will of the donor to be implicitly performed, it gives a 
 qualified estate tail, and does not contravene the rule of com- 
 mon law respecting a gift to a man and his heir singly, — 
 (which by the way is of doubtful authority, and qua;re if the 
 will of the donor might not be as well performed in the case 
 of a gift with one descent as in a gift with two descents.) 
 
 34. Adduce an instance of an estate tail general? 28S. 
 
 Gift to a man and his heirs males or females of his body — 
 "males or females" being surplusage. 
 
 35. What course of descent do estates tail follow, and with what ex- 
 
 ceptions? 284. 
 
 The descent of estates tail is according to the common law 
 as far as the line of entail extends, with the exception that a 
 possessio fratris does not prevent the half blood of the donee 
 from inheriting as heir to the father, though not as heir to 
 the brother ; and also with the exception ehcited by the next 
 question. 
 
 30. In the instance of a gift to A and his heirs males of his body, 
 how must the heir trace his descent? 286, 287. 
 
 Entirely through males ; as if A hath issue a son, and the 
 son hath issue a daughter, she cannot inherit, not being male 
 as well as heir. 
 
 37. Gift to A in tail male, remainder to him in tail female, and he 
 
 hath issue a son who hath issue a daughter, and also a daughter 
 who hath issue a son, what can the grandson and grand-daugh- 
 ter take? 287, 288. 
 
 Nothing ; for they cannot trace a descent to either estate 
 tail. — The son coming through a daughter, cannot take the 
 estate tail male; and being a male, he cannot inherit the 
 estate tail female : and so of the daughter. 
 
 38. In the instance of a gift to A and his heirs female, is it necessary 
 
 that the female should be A's general heir as well as fe- 
 male ? 289.
 
 50G LAW TRACTS. 
 
 No ; as supposing a tenant in tail female to have a son and 
 a (laughter, his fee-simple estate would descend to his son as 
 general heir, and his entailed estate would devolve on his 
 daughter as the next in the line of entail. 
 
 aO. Gift to A and his heirs male of his body, by one clause, and by 
 another, to hun and his heirs female of his body — gives what 
 estate? ilOO, 
 
 Two distinct estates : the one in tail male in possession, 
 and the other in tail female in remainder. — To limitations of 
 this kind should always be added a remainder in tail general, 
 as without it a great-grandson, claiming from his mother who 
 took from her father, could not inherit, for reasons mentioned 
 in answer to Qu. 37. 
 
 40. Name the five instances adduced by the Author of estates in 
 special tail with respect to the persons from whom they are to 
 proceed? 291,292. 
 
 Gift to A and the heirs of his body begotten — 
 
 1. On Emily his wife : 
 
 2. On Jane his deceased wife : 
 
 S. On Mary S. without further specification: 
 
 4. On the body of any woman married or unmarried ; or 
 
 5. On the bodies of two women. 
 
 Gifts in this form give estates in special tail. 
 
 41. How is a gift to a man and the heirs of his body by a deceased 
 
 wife construed ? 293. 
 
 If at her death there be no issue, he is bare tenant for life, 
 and not tenant in tail after possibility of issue extinct. — 
 Sed dub. 297. — If there be issue, he is tenant in tail. — If 
 such issue die in his lifetime, he becomes tenant in tail after 
 possibility of issue extinct. 
 
 42. How was the limitation in Page v. Hayward construed, which 
 
 embraced the third instance of special tail personal ? 293, 294, 
 295. 
 
 It was construed to be an estate tail in the devisee ; and 
 though the woman married another person than a Searle, yet the 
 possibility that she would survive that coverture and marry a 
 person so named Searle, continued her estate tail : and it was 
 not like a gift to one and the heirs to arise from two persons
 
 LAW TRACTS. 207 
 
 certain, but if she married any person by the name of Searle 
 it would suffice, whether that person was surnamed Searle 
 by birth, act of parliament, or letters patent. 
 
 Qucere — What issue would have inherited had her hus- 
 band taken the name of Searle ? 
 
 43. What is understood when an estate is given to one and his heirs 
 
 of his body by a woman who is not his wife 1 295, 296. (See 
 also Qu. 55.) 
 
 That they may lawfully intermarry ; as in a gift to A and his 
 heirs of the body of his sister, has been held to give a fee, 
 the words " body of his sister " being held repugnant, and so 
 the word "heirs" standing unconfined conferred a fee. — On 
 this ground it has been doubted whether a gift to A and his 
 heirs on the body of his deceased wife who left no issue, gives 
 a fee or a life estate only. — [See post, Qu. 55.1 
 
 44. How is the descent regulated in the instance of a gift to A and 
 
 the heirs of his body begotten on the bodies of two women ? 298. 
 
 The sons of the first marriage inherit first seriatiniy then the 
 sons of the second marriage, and the daughters of both 
 marriages take together as coparceners. 
 
 45. In the before-mentioned instance of a gift to a man and his heii-s 
 
 begotten by his son, (p. 203. Qu. 26.) can any heir or grand- 
 child inherit, living the son? 290, 299. 
 
 It seems not, for at the death of the grandfather there is no 
 one in esse to continue the estate ; and an estate cannot cease 
 at one time and be in existence at another. The entail there- 
 fore must cease for want of issue. 
 
 46. Is there any difference between a gift to A and his heirs of his 
 
 body, and a gift to A and the heirs of his body to he begottev, 
 and what observations arise on the word *' begotten " ? 301 , 302. 
 
 There is no difference between these two species of gift. In 
 both instances, heirs born as well before as after the ffift are 
 capable of inheriting the estate ; so a gift to A and the heirs 
 of his body begotten does not exclude an after-born heir, but 
 if the words are " to be then after begotten," the issue born 
 before the gift cannot take, but only those born afterwards^ 
 who take as purchasers in exclusion of children already born.
 
 208 LAW TUVCTS. 
 
 17. (lift to a man and woman, not his wife, and the heirs of their two 
 bodies lawfully l)Cf^n)tton between them, gives the man, woman 
 and issue, what estates ? 302. 
 
 The man and woman take estates in special tail of moieties, 
 in joint-tenancy — and the issue take nothing alone. 
 
 4.S. If then a gift of this description confer a joint-tenancy, what is 
 the consequence of a severance of the jointure ? 303. 
 
 Each tenant will have a several estate in special tail in a 
 moiety as tenants in common. As to one moiety it will be the 
 same as a gift of that moiety to the man and the heirs of his 
 body begotten on the woman ; and as to the other moiety it 
 will be like a gift to the woman and her heirs of her body be- 
 gotten by the man. None but the issue of a marriage between 
 them can inherit ; but supposing the man and woman married 
 after severance, and the woman to die, then her moiety would 
 descend to a son of the marriage, subject nevertheless to his 
 father's curtesy ; and if the father were to die, his moiety 
 would descend to the son, subject nevertheless to his mother's 
 dower. 
 
 49. And what would be the consequence of a marriage ' of the 
 
 parties and the death of one of them before or after severance ? 
 304'. 
 
 The consequence of a death after severance has been allu- 
 ded to in the answer to the last question. If the jointure be 
 not severed, and the parties marry and the husband dies, 
 then the wife is entitled to the whole estate tail by survivor- 
 ship, and the issue can take nothing till her death. 
 
 50. What is the difference between a gift in special tail to a man and 
 
 woman who are not married, and a gift of the same description 
 to a man and woman who are married ? 305. 
 
 In the first case, the man and woman are joint-tenants, and 
 on severance they become tenants in common, and the issue 
 succeed to each moiety as heirs of their respective parents : 
 thus the son succeeds to one moiety as heir to Iris mother and 
 not as heir to his father, and so vice versa. 
 
 In the second instance, the husband and wife are tenants 
 by entireties, and the issue must claim as heir to both parents 
 
 ' Marriage would not revive the tenancy.
 
 LAW TRACTS. 209 
 
 and not as heir of one of them only, thc*ame as if the join- 
 ture were unsevered. 
 
 51. What is the consequence of a gift to a man and a woman not 
 
 married, but who may lawfully intermarry, and the heirs of 
 their bodies? 305-6. 
 
 They become joint-tenants in special tail, without the words 
 *' begotten between them ;" though such a gift to two men 
 would make the parents joint-tenants for life, with remainder 
 to each as tenants in common in tail general. 
 
 52. And what, if the gift be to a man and woman who by the canon 
 
 law may not lawfully intermarry ? 806. 
 
 The effect would then be the same as if the gift were to 
 two men and the heirs of their bodies. 
 
 53. And what, if they may not lawfully intermarry and yet the gift 
 
 is to them and the heirs of their bodies begotten between 
 them? 306. 
 
 It seems they take as joint-tenants for life merely, — sed 
 quaere t if the impossible part of the limitation ought not to be 
 rejected, as it certainly would be in such a gift to brother and 
 sister, or to two men ; in which case the parties would take 
 the fee as tenants in common. 296. 
 
 54. What construction would a gift to a man and two women and 
 
 the heirs of then* bodies begotten between them, most proba- 
 bly receive? 307 to 310. 
 
 The words "between them" would in all likelihood be re- 
 jected, for it would be impossible that one heir should be pro- 
 ceeding from three bodies, that ia to be heir to them all. — The 
 gift would then be similar to a gift to three men and the 
 heirs of their bodies. The Author reasonably supposes that 
 the man and two women would be joint-tenants of the free- 
 hold, with several inheritances in thirds in tail — general, as to 
 the extent of estate, but special, as to the bodies whence the 
 heirs are to proceed. Thus the man would have his third to 
 him and his heirs begotten on the bodies of two women, with 
 preference to sons, &c. as before mentioned, (Qu. 44.) and 
 each woman would have her third to her and her heirs be- 
 gotten by the man. 
 
 2 B
 
 Q\0 LAAV TRACTS. 
 
 5o. "Wliat passes by a gift to two men and their wives and the heirs 
 of their l)odies between them ? 311. (See Qu. 58.) 
 
 Each husband and wife will have a distinct moiety of the 
 inheritance in common, in special tail, without cross remain- 
 ders between them. 
 
 Qiifcrc — May not the four be joint-tenants of the entirety 
 for Hfe, with remainder as to one moiety to one husband and 
 wife, and as to the other moiety to the other husband and 
 wife — each husband and wife to be tenants by entireties after 
 severance of the common jointure of freehold as between 
 themselves, and to have an estate in special tail ; but with 
 respect to the distinct moieties, to be tenants in common ? 
 (See Qu. 58.) 
 
 5Q. "What estate passes by a gift to a man and woman who may not 
 lawfully intermarry and yet are married, and the heirs of their 
 bodies? 312. 
 
 Tliey take as tenants in special tail till the marriage be 
 avoided ; and after, as tenants for life ; the divorce illegitima- 
 tizes the children, and then there can be no inheritable issue. 
 By reference to p. 296, there seems this discrepancy. The 
 Author says, Gift to A and his heirs on the body of a 
 woman whom he may not lawfully marry, gives A a mere 
 estate of freehold, because of the impossibility of having 
 the description of heirs prescribed. But fsays Anderson 
 C. J.) the impossible part of the limitation is rejected, 
 and then the word heirs remains unrestrained and gives 
 a fee — which is by far the more reasonable exposition. 
 Gift to A and his issue on the body of a woman whom 
 he may not marry, would probably give A a free- 
 hold estate only ; because, in rejecting flip impossible 
 part of the limitation, there is no word left to give him 
 more, as there is in case the limitation had been to 
 him and his heirs, &c. 
 
 57. What distinctions arise with respect to the effect of the law of 
 divorce on estates in special tail ? 313. 
 
 If the marriage be avoided pro causa incecontr actus ^ the 
 parties cannot be tenants in tail, — but if the cause of divorce 
 be post-nuptial, they will continue tenants in special tail till 
 the marriage is actually avoided.
 
 LAW TRACTS. 211 
 
 58. Gift to a man and his wife and the heir of their bodies, passes 
 
 what estate ? 314. 
 
 They take an estate in special tail as tenants by entireties. 
 
 59. How, further, is a gift to two men and their wives and the heirs 
 
 of their bodies construed? 315, 316. (See Qu. 54.) 
 
 The four take the freehold as joint- tenants, and each hus- 
 band and wife has a moiety of the inheritance to themselves, 
 in tail special by entireties: nevertheless the inheritance as to 
 one husband and wife is held in common, and so, as to the 
 other husband and wife. 
 
 60. How was the statute De donis considered in ancient times? 317, 
 
 318. 
 
 As a family law, to maintain the grandeur of the nobles 
 and great men, and to perpetuate property in their names. 
 
 Section 3. 
 
 OF THE CREATION OF ESTATES TAIL. 
 
 61. May estates tail be created by any form of words in a deed with- 
 
 out "heirs"? 319, 320. 
 
 Generally speaking they cannot be so created, with the ex- 
 ception of a gift in frank-marriage, which gives an estate in 
 special tail by force of the word *' frank-marriage." 
 
 62. Must the word "heirs" necessarily be in the plural number to 
 
 create an entail in deeds ? 320. 
 
 It appears not ; though as to fees it is otherwise. — The 
 instance given is, to A and his heir of his body and to one 
 heir of the said heir. — Here, in effect, is a plurality of heirs 
 mentioned ; but in p. 282, one heir only is mentioned, which 
 should seem to make a difference. 
 
 QQ, What other words besides the word " heirs " must the gift con- 
 tain? 320. 
 
 Words of procreation. 
 
 64. Whence may these words be collected ? S2^. 
 
 From any part of the deed which shows that general heirs 
 are not intended.
 
 212 LAW TKACTS. 
 
 [But note, in a limitation to A and his heirs, remainder to 
 B in fee, it may be contended that heirs means heirs of A's 
 body, otherwise B's remainder could not take eflcct ; but the 
 remainder would be clearly void.] 
 
 1)5. Name the four instances of the application of this rule? 324, 325. 
 
 Gift to A and his heirs — 
 
 1st. Of himself issuing ; 328. 
 2d. Of his flesh ; 
 
 3d. Which he shall have, or beget ; 
 4th. Begotten of some woman. 
 
 ()G. What passes by hmitation to the use of A, and his heirs, of the 
 body of E the wife of T to be begotten ? 325. 
 
 An estate in special tail : per two Judges against one. 
 
 67. If the limitation be to the use of A, and the heirs male of the 
 said A lawfully begotten, with remainder over, what estate 
 passes to A ? 327. 
 
 An estate tail, though the words "of the body" are wanting. 
 
 GS. What was agreed by the court, in Beresford's case ? 327. 
 
 That the heirs must be limited to be procreated of some 
 body, or by words which do amount to as much. 
 
 C9. What was the limitation, and what was held in Abraham v. 
 Twigg? 330. 
 
 The limitation was to the use of G. D. and his heirs males 
 lawfully begotten ; and it was held that he took the fee for 
 want of the words *• of his body." 
 
 70. Wherein does this case differ from Beresford's case ? 333. 
 
 In Abraham v. Twigg the limitation did not direct that the 
 heirs should be the issue of any person certain — but only said 
 that they were to be heirs males, and to be lawfully begotten, 
 which all heirs who mherit must be. Whereas the words in 
 Beresford's case were considered as appropriating a body 
 from which the heirs were to proceed, the words " of the said 
 A begotten" being read as a distinct member of the sentence, 
 from the said " heirs males," and interpreted to mean "by the 
 said A begotten," there being in Latin no difi'crence between 
 the words ex and dc.
 
 LAW TRACTS. 213 
 
 7 1 . What was the Hmitation and decision in Idle v. Cook ? 334. 
 
 The limitation was to A and B his wife, for and during the 
 term of their lives and of the heirs and assigns of the said A 
 and B, and for default of such issue, over. These words were 
 held to give the fee, and not an estate tail, on the authority of 
 Abraham v. Twigg. 
 
 72. What is the difference between a gift to a man and his heirs of 
 
 his flesh, and a gift to a man and his heirs of his blood ? 334, 
 
 The first gift confers an estate tail, the second an estate 
 in fee. 
 
 73. Will a limitation to the donee and his heirs if he shall have 
 
 heirs of his body, substantively confer an estate tail ? 336. 
 
 It appears doubtful. If connected with a limitation over in 
 default of such heirs, it probably would ; but that is not sub- 
 stantively. (See p. 339. for an entail.) 
 
 74. Gift to a man and his heirs ; and if he die without heirs of his 
 
 body over, gives him what estate ? 337. 
 
 An estate tail; for though the word "heirs" stands unquali- 
 fied, yet the subseqvient words explain what heirs are meant. 
 
 75. If in the last case the gift had been to his heirs and assigns, or to 
 
 his heirs for ever, would that have made any difference ? 338. 
 
 None, for the reason assigned. 
 
 76. Gift to A and B his wife and their heirs, and to the other heirs 
 
 of the said A if the said A and B should die without heirs of 
 themselves — gives what estate ? 338. 
 
 An estate in special tail to A and B, with remainder to A 
 in fee — by reason of the word " themselves," which certainly 
 assists the case ; but a gift to A and B his wife and their heirs, 
 evidently alludes to persons who shall be heirs to both of 
 them ; which can only be issue of their two bodies begotten 
 by themselves. 
 
 77. Gift to B and his heirs for ever if he should have issue of his 
 
 body engendered ; if he should die without heirs of his body, 
 over — gives B what estate ? 339. 
 
 An estate tail, notwithstanding the words "for ever."
 
 till LAW TRACTS. 
 
 78. What was the Hmitation and decision in 37 Ass. 15. — 339. 
 
 The Hmitation was to A and his licirs if he should have 
 heirs of his flesh, if not, over; it was adjudged that A took 
 an estate tail. 
 
 79. Wliat if the premises be in fee, and the habendum in tail, or vice 
 
 versd? 340. 
 
 In the first case, the habendum will explain the premises, 
 and an entail will pass. In the second, an estate tail will 
 pass by the premises, and a remainder in fee by the haben- 
 dum ; — but if in the first instance, a warranty with the grantee 
 and his heirs be added, the fee will pass. 
 
 80. AVill a clause which introduces a remainder with restrictive 
 
 words, be allowed to qualify a previous general limitation, 
 in a will or deed? 
 
 Not in a will, much less in a deed. 
 
 81. Give illustrations of this rule, with the exceptions if any. 342. 
 
 Limitation to A and his heirs. 
 
 And if he shall die without heirs ; or 
 In default of heirs ; or 
 In default of heirs male; or 
 In default of such heirs ; or 
 
 In default of issue (generally) of the donee — without 
 adding " of his body." 
 Each of these limitations will give A an estate in fee, 
 whether by deed or by will, unless perhaps the remainder- 
 man be of the blood of, or in a line of succession with, the 
 preceding tenant. 
 
 82. What was the limitation and decision in Attorney General v. 
 
 Gill? 31.3. 
 
 Devise to A and his heirs, and if he died without heirs, to 
 a charity : this was held to give A the fee. 
 
 S3. FeoflTment to A and his heirs male lawfully issuing, and for de- 
 fault of such issue, over — gives A what estate, and why ? 344. 
 
 A takes in fee, because "such issue " refers to its antece- 
 dent "heirs male," which is general and not confined to A's 
 body alone; and we have seen that the word "male" will 
 be rejected, so as to give A the fee.
 
 LAW TRACTS. SI 5 
 
 84. Wliat passes by a limitation to A and his heirs, and in default 
 of issue of A, over, without saying such issue ? 342 — 5. 
 
 A fee in a deed, and an estate tail in a will, because in the 
 latter, issue of the donee must mean issue of his body ; and 
 it is the ' first deed ' and * last will ' that govern the con- 
 struction. 
 
 %^. Feoffment to A and his wife for life, remainder to the right heirs 
 of A ; but if he should die without issue of his body begotten, 
 over — gives A what estate ? 345. 
 
 An estate tail. 
 
 86. Feoffment to A for life, remainder to B, his son, and his heirs, 
 
 and for want of issue, to A's right heirs — gives B what estate ? 
 S46. 
 
 An estate tail, for (per Holt C. J.) words of inheritance may 
 be qualified or abridged by subsequent words. 
 
 87. Limitation to A and his heirs, with remainder over in default of 
 
 his heirs generally — What, if the remainder-man be in the 
 line of succession to A, as his brother, for instance, or next 
 collateral relation ? 
 
 In a will, and probably in a deed too, A would take an estate 
 tail, for the limitation to the remainder-man could by no 
 other construction take effect ; and it is a rule to give effect 
 to every part of an instrument if possible. On A's death 
 without heirs an escheat would take place, but this could not 
 happen without the extinction of the remainder-man and his 
 family also. And to say that A took the fee, would be to 
 deny a meaning to the subsequent words of the testator, when 
 by the above construction they may very well mean an estate 
 to the remainder-man in default of issue of the body of A. 
 
 88. A devises to his son and his heirs ; but if his daughters outlive 
 
 his son and his heirs then to them — the son takes what estate, 
 and why? 349. 
 
 An estate tail ; for the heirs intended of the son were evi- 
 dently heirs of his body, since he could not die without heirs, 
 living his sisters. 
 
 89. What two grounds may Parker v. Thacker be considered to 
 
 have been adjudged on ? 349.
 
 Q\G LAW TRACTS. 
 
 1st. That the gift to B and his heirs, was qualified by the 
 dcvi.se over, for want of heirs of ////«; and 
 
 2d. That the remainder-man was a near relation and heir 
 to B. 
 
 DO. D having three daughters, A, B and C, devised to his wife till 
 Ills heir was 21 ; and that A his heir should pay his debts : and 
 if A died without heirs, then that his heir B should pay his 
 debts — What estate did the daughters take ? 350. 
 
 They took successive estates tail in remainder by impli- 
 cation — though the word htirs was general, yet on the whole 
 will, and the relationship of the parties, it was clear the testator 
 meant no more than the heirs of his respective daughters' 
 bodies. 
 
 91. What was Lord Talbot's view of this rule of construction? 
 
 351. 
 
 That where there is a devise to A and his heirs, with 
 remainder in case he dies without heirs, to a stranger ; here 
 the remainder must necessarily be void, for there is nothing 
 to qualify the first general words ; but if the remainder-man 
 be the next collateral relation to the first taker, then it is im- 
 possible for A to die without heirs, living the next collateral 
 kinsman ; and therefore, since it is absurd to suppose that 
 the testator contemplated an impossibility, that construction 
 should be made which would make his will sense, viz. by re- 
 straining the word " heirs" to mean " heirs of his body." 
 
 Note. — The same argument may be applied to cut down 
 the first taker to an estate for life, if the gift over were to 
 his next lineal descendant and heir apparent. 
 
 92. What was the limitation and decision in Morgan v. Griffiths ? 
 
 351. 
 
 A testator had two grandsons, and devised to one and his 
 heirs, and for default of his heirs, to the other and his heirs — 
 This was held to give the first devisee an estate tail only. 
 
 93. What if the second devisee be heir of the half blood only of the 
 
 first devisee? 352, 353. 
 
 Per Lord Hardwicke — It is then a devise over to a stranger, 
 for the half blood cannot be heir more than a stranger ; the 
 first devisee takes consequently in fee.
 
 LAW TRACTS. 217 
 
 94. Is it essential that the second taker be immediate heir to the 
 
 first? 353. 
 
 No — that he may eventually succeed as immediate heir is 
 all that is sufficient. 
 
 Suppose A to have three grandsons by three different sons, 
 and devise to the first and his heir, and in defauk of such 
 issue, to the third and his heirs — (^uceie, would this be an 
 entail in the first taker ? — The second taker could not, on the 
 first grandson's death sine jrrole, take as heir, because of the 
 intermediate grandson and his issue ; nevertheless it is sub- 
 mitted that the first grandson woidd be tenant in tail, because 
 of the impossibility of his death without heirs living the third 
 grandson : and this is sufficient to show that the testator 
 meant heirs of the body of the first taker. — Under this con- 
 struction he would take an estate tail, and the third grandson 
 an immediate remainder in fee. 
 
 95. What was the devise and adjudication in Nottingham v. Jen- 
 
 nings? 354. 
 
 The devise was to the testator's second son and his heirs, 
 remainder to his own right heirs. — The remainder of course, 
 devolved on the eldest son, and thus he claimed by his para- 
 mount title descent, and so the remainder was void : yet it was 
 held by the Court of King's Bench, that it had sufficient 
 existence to show the intent of the testator to confine the 
 words heirs, in the gift to the second son, to " heirs of the 
 body," and it was adjudged therefore that the second son took 
 an estate tail. 
 
 96. What particularly said Lord Holt, in the latter case ? 354. 
 
 That the word "heirs" could import nothing more than 
 issue, for how covdd the second son die without heirs, living 
 his eldest brother ? — Then if it meant issue, it was clear that 
 a devise to A and his heirs, and if he die without issue, over, 
 would give an estate tail ; because issue must mean descen- 
 dants of his body, since his brother cannot come under the 
 denomination of his issue. 
 
 97. What conclusion does the Author draw from a review of these 
 cases? 355. 
 
 2 c
 
 218 LAW TRACTS. 
 
 That, thougli the word " heirs" stands general, yet it may 
 be Hmited by the clause of another sentence, to mean heirs of 
 the body only. 
 
 98. Does the reverse of this rule, viz. that prior words may be en- 
 
 larged as well as contracted in signification by subsequent 
 words, prevail ? 355. 
 
 The reverse does not hold ; for gift to A and his heirs 
 male of his body, remainder, if he die without heirs of his 
 body, over, will not give more than an estate tail male, — and 
 this applies to deeds as well as wills. 
 
 99. What is the distinction between a gift to a man and the heirs of 
 
 his body on the body of his wife begotten — and a gift to "a 
 man and woman and the heirs which he shall beget on her 
 body"? ^5G, 357. 
 
 In the first case, the husband alone takes an estate tail; 
 though it is not said his heirs exclusively. — In the second, 
 the husband and wife take as tenants in special tail by en- 
 tireties. 
 
 100. What passes by a gift to a man and wife, and the heirs of the 
 
 husband on the body of his wife begotten ? 358. 
 
 ■ A joint-estate for life, with a several inheritance in tail to the 
 husband alone — for the appropriation is to the heirs of the 
 husband. 
 
 101. What words in a will, create an estate tail? 359. 
 
 All those in a deed which will have that effect, and some 
 of those in a deed which create an estate for life only. 
 
 102. Devise to A and his heirs male, gives what estate? 359. 
 
 An estate tail ; though a feoffment to the same uses would 
 create a fee. 
 
 103. Devise to A and his heirs, and if he die without issue, over — 
 
 gives A what estate, and why ? 359. 
 
 An estate tail, because the rule is '' the last will and first 
 deed;" and "dying without issue" is construed to mean what 
 species of " heirs" the testator intends, viz. those ** heirs " only 
 which come under the denomination of A's issue.
 
 LAW TRACTS. 219 
 
 104. What is the clifFerence between a gift to a man and his seed, in 
 a deed and in a will ? 360. 
 
 In a deed it will give a life estate only. In a will it will 
 confer an estate tail. S62. 
 
 105. What is the first general rule of construction as to wills, in 
 reference to estates tail ? 360, 362. 
 
 That any words which show an intention to confine the 
 devise to issue of the devisee's body, shall give an estate tail ; 
 as, to a man and his seed — which means lineal descendants. 
 
 106. Devise to a man and his children, gives what estate, he having 
 no children at the time ? 362. 
 
 The devisee takes an estate tail ; the word children being 
 in this instance construed to be a word of *' descent," and 
 not of " purchase." 
 
 107. And what, if he have children? 362, 363. 
 
 Then he and his living children take estates for life jointly. 
 
 108. If devise be to A for life, and after his decease to his children; 
 what estates pass, in the alternatives of A's having or not 
 having children ? 363. 
 
 If he have not children he will take in tail ; but if he have 
 children they will take as joint-tenants for life in remainder 
 after their father's life estate. 
 
 109. What effect has the word "issue" in a devise? 364, 367. 
 
 It gives an estate tail, whether the devisee have children 
 or not ; for it is nomen collectivum, and comprehends not only 
 children, but all lineal descendants, and is equal to heirs of 
 the body ; and it will confer an estate tail on the parent, 
 though his estate be expressly limited to him for life. 
 
 Issue in a deed is universally a word of purchase ; but 
 m a will it is a word of limitation or purchase, as best 
 answers the intention: — thus devise to A for life, remain- 
 der to his issue and their heirs for ever. Here issue is a 
 word of purchase. — (Fearne, 152, 7th ed.) 
 
 110. Devise to A and his heirs, and in default of issue, over — gives 
 A what estate ? 361^. 
 
 An estate tail.
 
 220 LAW TRACTS. 
 
 111. Devise to A and his heirs, and if he should die without heirs, 
 as contradistinguished to issue, then over — what estate does 
 A take ? 368. 
 
 An estate in fee, unless from the relationship of the devisee 
 over, A cannot die without heirs while that relation is living, 
 in which case he will take in tail only. 
 
 112. What was the devise and decision in Geering v. Shenston? 368. 
 
 The devise was to A and his heirs of his body, and their 
 heirs for ever, with remainder over, if he should die without 
 leaving issue of his body. This was held to give A an estate 
 tail. 
 
 113. What effect have superadded words annexed to the word 
 issue ? 369. 
 
 The word is then a word of purchase, whether the devisee 
 have issue or not ; as in the instance of a devise to A for life, 
 and if he should have issue male, then to such issue male and 
 his heirs ; and if he should die without issue male, then over ; 
 A takes for life only, and his eldest son or grandson &c. takes 
 an estate tail. 
 
 Here is a general failure of issue marked : yet " issue " 
 
 was held a word of purchase. 
 
 114. What was held in Doe v. Reason? 370. 
 
 That the word "heirs," which stood general in a former 
 part of the limitation and imported to give a fee, should be 
 confined, by the subsequent words, " that if all such issue 
 should die without issue," to mean heirs of the body of such 
 issue. 
 
 115. What, if the failure of issue alluded to in the will, be not a 
 general failure, but only a failure at a particular time ; or on 
 some given event ? 371. 
 
 The clause introducing the succeeding limitation on the 
 failure of issue, will not then give an estate tail. 
 
 1 16. Adduce an example in illustration of this rule ? 371. 
 
 Devise to A and his heirs, and if he die without leaving 
 issue living at his death ; or if his issue should fail in the life- 
 time of his executors — this gives no estate tail, but only an
 
 LAW TRACTS. 221 
 
 executory devise, i. e. an estate in fee to A, with executory 
 devise over in case A shall die leaving issue living at the 
 time of his death. 
 
 117. What was the devise and decision, in Pells v. Brown? 371. 
 
 The devise was to B and his heirs, but if he died without 
 issue, living A, then to A in fee : B was held to have the fee 
 with an executory devise over, and not an estate tail. 
 
 118. Devise to A, and if he shall live to attain 21 and have issue, 
 then to him and his heirs to give and sell at his pleasure, 
 but if he shall die without issue, then to the testator's execu- 
 tors to sell — how was this devise construed ? 372, 373. 
 
 It was held that A took the fee on his attaining 21 and 
 having issue, and that the devise over could have effect only 
 in the event of A's not being enabled to entitle himself to the 
 fee, viz. by his death before 21, or having attained 21, by his 
 death before the birth of issue — and this, especially as the 
 devise over was to the executor, who could sell only during 
 his own life, as an executor's executor could not sell under a 
 power. 
 
 1 19. How is a devise to the issue of a person for life construed ? 374. 
 
 According to the express limitation, — the extent of the word 
 *' issue" being cut down to the particular estate mentioned. 
 
 120. What is the second general rule of construing wills, as to 
 estates tail? 361, 364. 
 
 When the intent to entail appears, or the words of the 
 testator cannot have any meaning unless they are construed 
 to pass an estate tail, — they shall give an estate of that quality. 
 
 121. What familiar instance affords an apt illustration of this rule ? 
 
 374. 
 
 The case of a devise to a man and his heirs male ; here the 
 word male must be rejected, unless it be construed to give an 
 estate tail male, which seems to accord with the intention 
 of the testator. 
 
 122. What is the third general rule of construction, as to estates 
 
 tail by devise ? 361, 374. 
 
 When it appears that all the issue are intended to take.
 
 '222 LAW TRACTS. 
 
 and they cannot take unless the ancestor has an estate tail, 
 then he shall have such estate, though the devise be to him 
 for life expressly. 
 
 123. Give an example of this rule ? 375. 
 
 Devise to A for life, and if he shall die without issue, then 
 over ; A takes an estate tail. 
 
 124. What was the devise and decision in Sonday's case? 376. 
 
 The devise was to the testator's wife for life, then to his son: 
 and if his son had issue male, then his son to have it; and if 
 he had no issue male of his body, then over : — Held that the 
 son took an estate tail male. 
 
 125. What said Treby C. J. in Luddington v. Kime ? 376. 
 
 That a devise to one for hfe and if he die without issue male, 
 then over, gives an estate tail male. 
 
 126. Has this doctrine received the sanction of the House of Lords ? 
 377. 
 
 Yes, in Attorney General v. Sutton. 
 
 127. What general rule may be drawn fi*om Bamfield v. Popham, 
 and Blackborne v. Edgely? 378-9. 
 
 That where a devise is to A for life, remainder to his first 
 and other sons, remainder to his daughters, and if A die with- 
 out issue, then over ; this dying without issue is not to be 
 construed into a general dying without issue, so as to give A 
 an estate tail, but only a dying without such issue, which we 
 have seen will not give an estate tail ; and as to the daughters 
 of sons, it is to be inferred from the wording of the will that 
 the testator knew how to give them an estate if he wished so to 
 do, and the name and family becoming extinct with the male 
 line, he may for that reason limit it over, to A's daughters in 
 preference to A's sons' daughters, who consequently could 
 take nothing. 
 
 128. What effect has the word issue attached to a person who takes 
 no previous estate by the will ? 380. 
 
 It will not then confer an estate tail on him by implication, 
 though he have an estate for life by a previous settlement, 
 which the will recites.
 
 LAW TRACTS. 223 
 
 129. What briefly was the devise and decision in Robinson v. Robin- 
 
 son? 381. 
 
 The devise was to A for life and no longer, he taking the 
 name of R, and after his decease to such son as he should 
 have begotten, taking the name of R, and for default of such, 
 over. This was held to give A an estate tail male, taking the 
 name of R. 
 
 130. How were the words "son and daughter" construed by Lord 
 Hardwicke, in Wyld v. Lewis ? 382. 
 
 In a collective sense, as including all the descendants of the 
 first taker, especially when connected with a devise over, for 
 want of "such issue ;" and the devise on that ground was 
 held to give an estate tail general. 
 
 131. Devise to A for life, and at her death to her children, and in 
 
 case of failure of childi*en to another — gives A what estate? 
 383. 
 
 An estate tail, it being evident that the word children in 
 this instance is nomen collectivum. 
 
 132. What is the fourth rule of construction, as to estates tail by 
 
 devise? 361. 
 
 That where a general and a particular intention clash, the 
 general intent shall prevail. 
 
 133. Adduce an instance in illustration of this rule. 383, 384, S85. 
 
 Devise to A for life, and after his decease, to and amongst 
 his issue, and in default of issue, over. Here, the particular 
 intention of dividing the estate to and amongst the issue must 
 be rejected, as incompatible with the general intention; for if 
 it be not rejected, what is the consequence? the word issue 
 must mean children, as it is impossible to divide amongst 
 issue not born ad infinitum. Then as children, each would 
 take a distinct estate tail in his or her respective share ; 
 but on the death of one child without issue, it could not go 
 over to the survivor or survivors, for want of a limitation of 
 cross remainders, — and such a limitation cannot be implied ; 
 and it is not to go to the remainder-man until there is a 
 default of issue, which cannot be while a brother or sister is 
 living. Therefore the particular intention indicated by the
 
 224 LAW TRACTS. 
 
 words " to and amongst," must be sacrificed to make room 
 for the general intention, which is satisfied by giving an estate 
 tail to A, as then the remainder-man cannot take until there 
 is a default of his issue, as settled by the devise. 
 
 134. What is the fifth and last rule of construction, as to the creation 
 of estates tail by devise ? 362, 388. 
 
 That when the testator devises to a stranger on the failure 
 of heirs of the body of the person who is his heir-at-law, such 
 heir-at-law shall be tenant in tail ; for, to will to another after 
 failure of heirs of the body of the heir-at-law, is in effect to 
 say, that the heir shall not inherit longer than he has heirs of 
 his body. 
 
 135. What two circumstances must concur to lay the foundation of 
 this rule of construction ? 389. 
 
 1st. The person of whose issue there is to be a failure, 
 must be the testator's heir, and not a stranger, and that 
 at the time of making his will ; and 
 
 2d. The failure of issue must not be limited to happen 
 within a definite period, as within the life of a person, 
 since it cannot then be deemed to be equivalent to 
 " heirs of the body," which is necessary to give an estate 
 tail to the heir by implication. 
 
 136. What was the devise, and construction of the court, in the case 
 of Gardner v. Sheldon? 390, 391. 
 
 Testator Avilled that if his son, (who was his heir-at-law,) 
 and Mary and Catherine, his daughters, should die without 
 issue of their bodies, his estate should go to his nephew in 
 fee. — Now here the son could not take alone, because it 
 was clear the failure of issue was not intended to be a failure 
 of issue of his body only; but supposing it might be so, the 
 remainder was not to take efiect till there was a determination 
 of the issue of the daughters also: so that giving the son 
 an estate tail by implication, would not be enough. The 
 daughters could take nothing, because not the testator's 
 heir. Besides, if they took estates tail, the question was — 
 which should take first ? this uncertainty alone would have 
 made the devise void. The alternative was, that the heir- 
 at-law took the fee, subject to an executory devise over, in 
 favour of the nephew on failure of the issue of the son and
 
 LAW TRACTS. 2£5 
 
 two daughters, which probably was too remote, and void as 
 creating a perpetuity.' — (4 Bart. Elem. 98.) 
 
 137. What caution does the Author aUude to in this page ? 391. 
 
 That it is better to draw the will formally and technically 
 than to suiFer its construction to rest on implication. 
 
 138. What does Lord C. J. Vaughan define a necessary implication 
 to be? 393. 
 
 Such that the thing devised must necessarily go to the 
 devisee or none else can have it. 
 
 139. What does he lay down of a possible implication ? 393. 
 
 That such an implication shall not disinherit the heir. 
 
 140. What says Mr. J. Wright, of the statute De doms\ 395. 
 
 That it created no new fee, either in thing or in name, but 
 merely severed the limitation from the condition, and restored 
 the effect of each, — to the issue, the former, and to the rever- 
 sioner or donee, the latter. 
 
 CHAP. IV. 
 
 OF ESTATES FOR LIFE. 
 
 1. How are estates of mere fx'eehold classed? 396. 
 
 Into, Estates conventional, arising by act of the party ; and 
 Estates legal, arising by act of law, as estates apres, 
 in dower, or by curtesy. 
 Note. — The word "legal" here is not used, in contra- 
 distinction to equitable. 
 
 2. Are estates by statute and elegit freeholds ? 398. 
 
 They are chattel interests only, descendible to executors, 
 but held as freeholds. 
 
 - The heir takes all that is not given away — and the estate to the nephew only 
 is given away in the events mentioned. Up to that estate therefore the heir 
 takes, and ousts the daughters, — though it is clear the daughters were intended 
 to have something. 
 
 2 D
 
 2f?n LAW TRACTS. 
 
 S. What is an estate for life? 398. 
 
 An inti^rcst wliich may endure for a life, and may not 
 CDntinue l)eyond it. 
 
 4. Wliat is the quality of this estate, and how is it distinguished 
 
 from an estate of a very similar character ? 398. 
 
 A life estate is of freehold quality, while an estate for 
 years determinable on an estate for life, is a chattel interest. 
 
 5. Is it essential that an estate for life be for the life of the tenant? 
 
 399. 
 
 No, it may be for the life of another person, or several 
 persons, in which case it is called an estate pour autre vie. 
 
 6. Give an instance of an estate pour autre vie — and how and from 
 
 what is it distinguished by the Author ? 399, 400. 
 
 Limitation to A and his heirs for the life of B, is an estate 
 pour autre vie, and is clearly distinguishable from a limitation to 
 a man and his hcii's upon an event which must happen within 
 a life, as that is a determinable fee, and may become a fee sim- 
 ple by the non-happening of the event ; as, to C in fee till B 
 returns from Rome — but an estate for life is bounded by a life 
 in all events. 
 
 7. Enumerate the twelve examples of this estate, adduced by the 
 
 learned Author ? 401. 
 
 Grant, 1. To a woman dam sola fuerit, "^ a • .y, 
 
 2. durante viduitate, > , ,, ,.« 
 
 i be lorhle. 
 
 3. ■ quamdiu se bene gesierit, J 
 
 4. To a man and vi^oman during coverture, which must 
 
 be during the life of one. 
 
 5. To a man so long as he shall dwell in A, — which 
 
 may be for life. 
 (i. To a man so long as he shall pay 10/. a year — which 
 
 he may continue to do for life. 
 T. Till he has received 100/. by 10/. a year — and he 
 
 may die before he has received it. 
 
 8. Till he shall be promoted — which may not be during 
 
 life. 
 
 9. Till C returns from Rome, ^ which may not happen 
 10. Till C is married, 5 du"ing life. 
 
 i
 
 LAW TRACTS. 227 
 
 11. As lone- as B is of Lincoln's Inn, "i ,. , , , 
 
 ° / which may both 
 
 12. As long as C is a justice, j 
 
 8. Why in all these instances does an estate for life pass ? 4-05. 
 
 Because the limitation is for an indefinite period, and must 
 end with a life or lives — and though they may determine 
 before, yet as they may continue for a life or lives, they are 
 estates of freehold. 
 
 9. What is the difference between a gift to B till C returns from 
 
 Rome, and a gift to B and his heirs till C returns from Rome ? 
 406. 
 
 One passes a life estate, and the other a determinable fee, 
 though they both depend on the same event : The reason is 
 obvious. 
 
 10. What is necessary, on a lease to A till he has received 100/. by 
 
 10/. a year, to pass a freehold ? 407. 
 
 It must be accompanied by livery of seisin, which always 
 gives the freehold ; or if the thing lie in grant, then the bare 
 execution of a deed of grant will be sufficient: since neither 
 an estate for years nor at mil can pass, the only alternative 
 is an estate for life. 
 
 11. Gift to a man for his life, and the life of his first-born son, 
 
 at a time when he has no son — gives him what estate ? 
 408, 409. 
 
 It is doubtful what estate passes by a limitation to a man 
 for several lives, some of which are not in being. In the 
 instance put, if the son were living, the father would have an 
 estate for the joint lives of himself and son, and the life of 
 the survivor. [If then the son be born in his lifetime, why 
 should not the like construction prevail?- — Here would be 
 some ground to say, that the estate determined by the death 
 of the father, no son being living, though a posthumous son 
 may be afterwards born — yet if the son took beneficially, 
 would he not be considered as born, or at least living, though 
 en ventre sa mere? A late case before the Vice Chancellor, 
 favours this construction. A legacy was given to such child 
 of A as should be born in his lifetime: This was held to 
 extend to a child en ventre sa mere at his death.]
 
 228 LAW TKACTS. 
 
 1^. 1 low may estates for life be classed? 409. 
 
 Into estates : 
 
 1. For the lives of several persons, 
 ii. For the life of one person. 
 .;. For the life of one of several persons. 
 4. For an uncertain period, which may continue for a life ; 
 or rather for a life with a collateral determination. 
 
 13. How long will an estate for the lives of several persons continue ? 
 
 410, 411. 
 
 Till the death of the survivor ; [contra, if the limitation 
 be expressly for their joint lives.] 
 
 14. Grant to three persons generally — what do they take ? 411. 
 
 An estate in joint-tenancy for their lives, with benefit of 
 survivorship ; if they sever the tenancy they lose the survivor- 
 ship, which would be prejudicial. 
 
 15. What estate passes by a joint conveyance of a joint-tenancy 
 
 for life? 411. 
 
 An estate for the lives of the joint tenants, and the hfe of 
 the survivor. 
 
 16. What is the advantage of not severing a joint-estate for lives? 
 
 411, 412. 
 
 The preservation of the survivorship, which by a severance 
 of the whole, or any particular part, is destroyed as to the 
 whole or that part. 
 
 17. Limitation to two and the survicor of them — On partition, what 
 
 estate does each take ? 412, 413. 
 
 An estate for his own life only, in his own respective share. 
 \_Qu(sre — If this can be so well applied to a joint-tenancy 
 expressly created by deed, as it can to a joint-tenancy 
 arising by implication of law. — Grant to A and B, and their 
 assigns, as tenants in common, and not as joint-tenants, for 
 and during the lives of the said A and B, and the survivor 
 of them : on partition, would each have an estate for his 
 own life only? Certainly nut; but this is different from 
 the case put in the text — as there, the time of the estate is 
 implied ; whereas it is here expressed : and observe, it is 
 expressed diversely to what it would be implied.]
 
 LAW TRACTS. ^^^^9 
 
 18. What was said in 30 Ass. 8, as to this point? 413. 
 
 That where a lease is to A, B, C and D " for their hves, 
 and the life of the survivor of them," — t le words within 
 commas express no more than the law would imply ; and 
 therefore they should have no operation, consequently on 
 partition the survivorship would be destroyed. 
 
 19. What is the consequence of a lease, by one of two joint-tenants 
 
 for lives, for the life of himself and his companion, with livery 
 of seisin? 413. 
 
 It is a forfeiture, because he makes a larger estate than he 
 can warrant : he can warrant an estate for his own life only. — 
 If he be not the survivor, then the estate devolves on his 
 companion, who has a better title than the lessee. This is 
 evident. 
 
 20. What, if such lease had been for years, without livery of seisin ? 
 
 413, 414, 415. 
 
 Then, if the jointure continues to the death of the lessor, 
 the lease will be binding on the surviving companion. If, 
 however it be severed, the term will determine with the life 
 of the lessor ; because on a severance, his estate in his 
 particular share is reduced to an interest for his own life 
 only; whereas during the continuance of the jointure, he has 
 by construction of law an interest in the estate during the 
 life of the surviving joint-tenant. 
 
 The pith of the matter is — A lease for life with livery is 
 a severance of the jointure, and a reduction of the estate of 
 the lessor to an estate for his own life only. If he 
 attempts to grant more, it is of course a forfeiture. — A lease 
 for years is not a severance, and the jointure continuing, all 
 charges on it continue with it. The survivor takes the 
 whole as joint-tenant, (and not one moiety only,) by survivor- 
 ship — and it is the same estate in the survivor, as it was 
 in the two joint-tenants while both were living. If then 
 it be a good lease while both were living, and the join- 
 ture is subsisting, it must be a good lease when one is 
 dead, for the jointure is equally subsisting — both estates 
 being by the death of one merely amalgamated in the 
 survivor. 
 
 21. What was held in Greenwood c. Tv^ci' ? 416.
 
 i-'JO LAW TllACTS. 
 
 1. That persons who are not parties to a deed, cannot take 
 in possession, and if they arc not named to take in remainder, 
 they cannot take at all ; and 
 
 2. That a lease to A, to hold to him, and B his wife, and 
 C his son, passes no more than an estate for the life of A; 
 and B and C take nothing. 
 
 Q-2. licase to A and B — and A leases to C, to hold to him and others : 
 Is this lease a forfeiture of A's estate ? 417. 
 
 It sh Ut] seem not, as the interest secondly leased would 
 determine with the joint lives of A and C, though A 
 were a tenant with his wife by entireties, as in Greenwood 
 r. Tyler. 
 
 2'o. AVhich is of the most value, an estate for the life of an indivi- 
 dual, or an estate for the joint lives of several persons ? 417, 
 418. 
 
 The former, as it is evidently more ample, since it has but 
 one event upon which it is to determine. 
 
 2 i. Is it in respect of the person or event, that the freehold quality 
 of estates is discovered? 419. 
 
 In respect of the event; as B may hold an estate during the 
 widowhood of C, which would be an estate for the life of C, 
 with a collateral limitation. 
 
 25. Limitation to A, during coverture of B and C — this estate 
 determines when ? 420. 
 
 On the death of either A or B, or on the dissolution of the 
 marriage a vinculo inatrimoniL 
 
 2(). Lease to A so long as a tree shall stand — passes what estate ? 
 421, 422, 440, 141. 
 
 It has been thought to be a nondescript species of estate, 
 because it relates not to a human event; it not beirgan estate 
 of inheritance for want of the word heirs,' nor an estate for 
 life, as the tree might not fall within the life of man. But it 
 seems A will take an estate for life, and no longer : subject to 
 determination by the felling or falling of the tree, ut res 
 inagis valeat qtiam pereat. 
 
 ' if "heirs " be added, it gives a dcterrr:i;able fee. 1 1/ ante.
 
 LAW TRACTS. '^ J 1 
 
 21. If tenant for life assigns to B, what estate has B ? 424. 
 
 An estate j^our autre vie, subject to all the rules which 
 apply to an estate of that denomination. 
 
 28. What is general occupancy 1 425. 
 
 It occurs where A is tenant for the life of B, and A dies 
 in B's lifetime — the estate is then liable to be occupied by 
 any person who can first obtain possession. If there be a 
 tenant in possession, he of course has the preference, and 
 may hold without payment of rent as general occupant. 
 
 29. Does the doctrine of general occupancy apply to hicorporeal 
 
 hereditaments ? 426. 
 
 No, because they do not admit of manual occupation — and 
 the consequence is, that the payment or perception cannot be 
 enforced by or from the tenant. 
 
 30. What thought Bacon and others, when tenant j^oiir autre vie 
 
 of an incorporeal hereditament died? 426-7. 
 
 That it determined; because there was no one to enjoy it, 
 it not being capable of general occupancy as a corporeal here- 
 ditament, and of a consequence, that the remainder took effect 
 in possession. 
 
 31. Is this opinion well founded? 427. 
 
 It should seem not, because a contingent remainder of a 
 rent depending on on esiaXe pour autre vie , is not destroyed by 
 the death of the tenant, but only by the deatli of the cestui 
 que vie before the contingency happens; from which it 
 follows, that the tenancy is still in existence, in the hands of 
 the terre-tenant, and the person who has to pay the rent is, 
 in effect, the general occupant, because he has the advantage 
 of the non-payment. 
 
 32. Can an executor be a special occupant of a rent, granted to one 
 
 and his executors for the hfe of another ? 428. 
 
 It was once thought not, because a rent could only be 
 reserved to the grantor and his heirs ; but an executor may 
 be a special occupant of a freehold in corporeal hereditaments, 
 and there is no reason why the same may not occur in an 
 incorporeal hereditament, for the special occupancy does not 
 infringe on the rules relating to reservations.
 
 232 LAW TllACTS. 
 
 33. In what light was the general occupant viewed ? 429. 
 
 As an assignee, and subject to all duties and stipulations as 
 such. 
 
 3i. What construction did the Statute of Wills receive, as to estates 
 pour autre vie ? 429. 
 
 That such estate could not be devised, because the statute 
 related to estates of inheritance only ; and if neither heirs 
 nor executors were named, heirs could not take, because it 
 was not an estate of inheritance ; and executors could not 
 take, because they could not succeed to a freehold in right 
 of representation. 
 
 35. \^'^hat did the Statute of Frauds and Perjuries enact, as to this 
 
 estate? 430. 
 
 That the tenant should at all times have a disposable power, 
 by devise, over this estate : and if not devised, and no succes- 
 sor named in the lease, then that the executor or administra- 
 tor should take as special occupant. 
 
 36. What observations apply to the assignment of this estate ? 430. 
 
 If it be limited to heirs or executors, and assigned to the 
 assignee generally, his executors will take under the statute : 
 If it be limited to heirs and assigned to executors, the latter 
 will take as special occupants, and so vice versa. 
 
 37. If heirs are named in the limitation, and succeed as special 
 
 occupants, and die — who are their successors? 431. 
 
 The heirs of the occupant dying tenant in a course of de- 
 scent, as on an estate in fee, with a maternal descent, if 
 the estate be derived from a female. 
 
 38. If executors are named and die, who succeeds? 431. 
 
 The executor's executor, ad infinitum : fqucere— must he 
 take out a second probate to the first testator ?) — but if the 
 executor die intestate, his administrator shall not be entitled, 
 but the administrator de bonis non or limited administrator of 
 the first testator : — that is, the freehold descends as any 
 other chattel. 
 
 39. How may conventional estates for the tenant's own life be 
 
 distinsfuished ? 432.
 
 LAW TRACTS. g3,*5 
 
 Into those Vthicli arise, 
 
 1st. By express limitation ; 
 2d. By construction of law. 
 
 40. Will every limitation for life in a deed, pass the same estate in 
 
 a will? 433. 
 
 Yes ; but the reverse will not hold. All that is hnplied in 
 deeds, is, that the limitation is for the tenant's own life ; but in 
 wills an intention to devise to one person, may be inferred 
 from the mode of devise to another. 
 
 41. What passes by a lease to a man generally ? 434, 435. 
 
 An estate for his own life, if the grantor may lawfully 
 convey such estate ; if not, as large an estate of freehold as 
 he can grant. Thus a lease by a tenant in fee with due formal- 
 ities passes an estate for the tenant's life ; whereas a lease by a 
 tenant for life or in tail, passes an estate for the life of the 
 lessor only, or an estate pour autre vie, 
 
 42. What is the ground of this construction ? 435, 436, 437, 438. 
 
 That the law can imply no wrong ; and it would be a dis- 
 continuance in a tenant for life or a tenant in tail to grant 
 larger estates than for their own lives. 
 
 43. Lease to A till C returns from Rome, gives what estate ? 439. 
 
 Since C has the whole period of his life to return from 
 Rome in, this conveys an estate for the life of C ; and A's 
 death, living C at Rome, will not determine the estate. A, 
 therefore takes an estate for the life of C, with a collateral 
 determination on his return from Rome. 
 
 44. What is the distinction, between a devise to a person, who is 
 
 the testator's heir, after the death of B, and a devise to a 
 stranger after the death of B ? 441 to 444. 
 
 In the first case, the law implies an estate for life in B, 
 by necessary construction ; because the heir-at-law is the 
 natural successor, and the testator saying he shall not have 
 the estate till after the death of B, the law says no one M'as 
 so likely to be intended to take during the life of B, as B 
 himself; and gives it him accordingly. But this reasoning 
 does not hold in the latter case ; because the stranger is not 
 the natural successor : but the natural successor taking all 
 
 2e
 
 234 LAW TRACTS. 
 
 that is not devised, takes till the death of B, to prevent an 
 abeyance of the freehold, which the law will not suppose the 
 testator intended, nor indeed will allow. 
 
 45. But what, if there be an estate already existing for the life of 
 
 B? 445? 44G. 
 
 The law will not then raise an estate by implication ; but 
 give to the heir or stranger a remainder expectant on that 
 estate. 
 
 46. What was decided in Pybus v. Mitford, as to uses and covenants 
 
 to stand seised? 446. 
 
 That whatever part of the use is not limited away, results 
 to the owner. Therefore, Avhere a tenant in fee covenanted to 
 stand seised to the use of the heirs of his body — it was held, 
 a use for life resulted to him as clearly as any language could 
 express such estate, with which the limitation to the heirs 
 coalesced and gave him an estate tail. 
 
 CHAP. V. 
 
 OF ESTATES AFTER POSSIBILITY OF ISSUE EXTINCT. 
 
 1. What is a tenancy in tall after possibility of issue extinct? 447. 
 
 It occurs where two are tenants in special tail, and one 
 dies without issue ; or leaving issue, that issue becomes extinct 
 in the life of the other. 
 
 2. What two circumstances must concur to give this denomination 
 
 to an estate ? 448. 
 
 1st. An extinction of issue to take the estate ; and 
 2d. An impossibility of such issue. 
 
 3. Who only can be tenant in tail apres ? 449. 
 
 The first taker, and not any of his issue. 
 
 4. Will the improbability of issue reduce a tenant in special tail 
 
 to a tenant in tail apres ? 449. 
 
 I
 
 LAW TRACTS. 235 
 
 No ; there must be a moral impossibility of any future 
 issue, by the death of the woman from whom the issue is to 
 spring — or, if it be to the heirs of two bodies, by the death of 
 one of them. 
 
 5. If the entail be special only as it regards the sex, can the 
 
 tenant in tail ever become tenant in tail after possibility of 
 issue extinct ? 
 
 No, because (as in the case of a general entail) there cannot 
 in the eye of the law exist, at any period during his life, a 
 time when it is impossible he shall not have future issue. 
 
 6. To what species of special tail does this tenancy singly relate ? 
 
 452. 
 
 To an estate tail special as to the person from whom the 
 issue is to proceed. 
 
 7. Gift to A and his heirs on the bodies of several women — M'hen 
 
 only can A become tenant in tail apres ? 452. 
 
 When all the women are dead. 
 
 8. By what act only can this species of tenancy arise ? 454. 
 
 By act of God, and not by act of man. 
 
 9. What species of estate do tenants in special tail take after a 
 
 divorce h vinculo matrimonii? 454. 
 
 An estate for life, and not an estate tail apres. 
 
 10. Within what period must the divorce be pronounced, to 
 
 illegitimatize the issue ? 455. 
 
 W^ithin the lifetime of both the donees. 
 
 11. What is the difference between a divorce a mensd et thoro, and 
 
 a divorce a mnculo matrimonii ? 457. 
 
 The one is an absolute divorce, illegitimatizing the children, 
 and the parties can never be married to each other again ; 
 whereas a divorce a mensd 8fc. is partial only ; and upon 
 reconciliation and leave of the Ecclesiastical Court, the parties 
 may cohabit again. The children also are not bastardized, 
 but those begotten during the suspension of the coverture, are 
 illegitimaie.
 
 Toii LAW TRACTS. 
 
 12. What eight incidents hath a tenant in tail apres in common with 
 
 a tenant in tail ? 458. 
 
 1. He is dispunishable for waste. 
 
 2. He is not com])ellable to attorn. 
 
 3. He cannot pray aid of him in reversion. 
 
 4. Writ of co7isimili casu lieth not on his alienation. 
 
 5. No writ of intrusion lieth after his death. 
 
 G. He may join the wife in a writ of right specially. 
 
 7. In prccc'ipe by him, he is not obliged to call himself 
 
 tanant for life ; and 
 
 8. In prcscipe against him, he shall not be named tenant 
 
 for life. 
 
 13. And what five, in common with tenant for life ? 
 
 1. This estate is liable to forfeiture, if the tenant make 
 
 a feoffment. 
 
 2. It is subject to merger. 
 
 3. Reversioner should be received on his default [of appear- 
 
 ance in process, &c.] 
 
 4. He may exchange with tenant for life ; and 
 
 5. He cannot levy a fine or suffer a recovery. 
 
 14. Assignee of tenant in tail apres, is what ? 460. 
 
 Bare tenant ^owr autre vie, and must be named such in a 
 writ quid juris clamat. 
 
 CHAP. VI. 
 
 ' OF CURTESY. 
 
 1. What is a tenancy by the curtesy ? 461. 
 
 The husband's estate for life of the entirety of his wife's 
 tenements on her death. 
 
 2. Of what may curtesy be had ? 461. 
 
 Of lands and tenements only, and not of hereditaments 
 which are not tenements.
 
 LAW TilACTS, 5<J37 
 
 o. What is stated by Bacon, as the feudal law in reference to this 
 estate? 463. 
 
 That when a woman seised of lands had issue, and died, 
 her husband became the natural guardian of the child, and 
 was entitled to the profits to maintain it ; and as soon as a 
 child was born, the father began to have a permanent interest 
 in the lands, and was called tenant by the curtesy initiate ; 
 and the estate being once vested, it was not liable to be deter- 
 mined by the subsequent death or coming of age of the infant. 
 
 4. Is a husband curteseable if the woman have an heir by a former 
 
 husband? 464. 
 
 Yes, for by possibihty the issue of the second husband may 
 inherit. 
 
 5. Adduce a strict definition of a tenancy by the curtesy ? 469. 
 
 It occurs where a man marries a woman, who at some 
 time during the coverture is solely seised of the first estate of 
 freehold and immediate inheritance in lands and tenements, 
 and after marriage in her lifetime (whether before or after 
 seisin in the wife is immaterial,) has a child born alive by 
 her ; which may, or if dead might by possibility however 
 remote, have succeeded to the estate of the wife as her heir ; 
 and the wife dies so seised, living the husband — he will be en- 
 titled to the entire estate for his life, as tenant by the curtesy. 
 
 6. What four circumstances are then necessary to concur to per- 
 
 fect this estate ? 470. 
 
 1. Marriage. 
 
 2. The wife's seisin. 
 
 3. Issue born alive, in her lifetime ; and 
 
 4. Death of the wife during the husband's life. 
 
 As to Marriage. 
 
 7. What is essential on this head? 471. 
 
 The marriage must be legal and canonical, or at all events 
 not void, as distinguished from voidable. 
 
 8. What, if a minor be married by licence, without consent of 
 
 parent or guardian ? 473. 
 
 The marriage is void — contra, ii the marriage be by banns. 

 
 238 LAW TRACTS. 
 
 J). And wh.it, if adults are married without banns, and by improper 
 Hcence ? 472. 
 
 The marriage is also void. 
 
 10. What, if one party be an ideot, or previously married? 472. 
 
 The marriage is absolutely void. 
 
 11. What, if the marriage be between persons whom the law has 
 
 forbidden to intermarry ? 474. 
 
 The marriage is voidable — but until declared void, the 
 husband's rights continue. 
 
 12. What is the difference between a divorce a vinculo Sfc. and a 
 
 divorce ct mensd ^-c. ? 474, 475. 
 
 The one declares the marriage void ab initio; the other 
 suspends the conjugal rights only. The former is founded 
 on cause existing before marriage ; the latter, on cause 
 existing after it. The former discurtesies the husband ; the 
 latter does not. 
 
 13. What then is to be collected from these pages concerning 
 
 marriage, as applicable to curtesy ? 475, 477. 
 
 1. Some marriages are void without sentence, and here 
 
 the husband can have no curtesy. 
 
 2. Some are voidable only by sentence, and if avoided in 
 
 the wife's lifetime, the husband loses his curtesy ; if 
 they are not avoided in the wife's lifetime, the hus- - 
 band is curteseable. 
 
 14. What marriages are actually void ? 477. 
 
 Those which are declared so by some statute; or where 
 there is a want of discretion in either contracting party ; or 
 where one party has husband or wife living. 
 
 15. What marriages are voidable only? 477. 
 
 Those solemnized within the levitical degrees, and against 
 the canon law. 
 
 16. During what period must a voidable marriage be declared void, 
 
 to deprive the husband of curtesy ? 478. 
 
 During the life of his wife.
 
 LAW TRACTS. 239 
 
 17. Cannot the husband then be deprived of his curtesy after his 
 
 wife's death ? 478. 
 
 Yes, by the verdict of a jury, that he was not really the 
 husband of the woman supposed to be his wife. 
 
 18. What, if a suit for nullity of a voidable marriage be depending 
 
 at the wife's decease ? 479. 
 
 The husband will not be deprived of his curtesy, unless 
 the marriage be decreed void in the wife's lifetime. 
 
 As to Seisin. 
 
 19. What constitutes actual seisin ? 479. 
 
 Some act of ownership exerted by the party ; as entry, or 
 receipt of rent. 
 
 20. Of what does legal seisin consist? 479. 
 
 Of a presumption of law, that the seisin is in the person 
 entitled to the estate : if otherwise, the fact must be proved, 
 it will not be presumed ; legal seisin may therefore be rebut- 
 ted by showing it to be in some other person. 
 
 21. What seisin in the wife is required, to entitle the husband to 
 
 curtesy? 479. 
 
 Actual seisin, where it can be obtained, or due dili- 
 gence in obtaining it ; and where it cannot be obtained, legal 
 seisin. 
 
 ]\lote. — Actual seisin is more commonly called seisin in 
 
 deed, and sometimes seisin in fact. 
 
 22. How is the possession of a tenant for years of the wife's estate 
 
 of inheritance considered as to curtesy ? 480. 
 
 The possession of the tenant is the possession of the 
 wife ; and gives her a seisin in deed, and not a mere seisin 
 at law. 
 
 Quaere — as to a tenant created by her after marriage 
 
 without matter of record. 
 
 23. If the wife have but a bare right to an o?tat<? and no seisin, 
 
 what is the consequence ? 480. 
 
 The husband will not be curteseable.
 
 210 LAW TRACTS. 
 
 24. Where an actual seisin may be obtained, what does the law 
 
 require of the husband? 481. 
 
 To show that he or his wife had such seisin. 
 
 25. What if an estate descend on the wife, and neither she nor her 
 
 husband make an entry, and do no other act to reduce the 
 seisin in land to a seisi^ in deed ? 481. 
 
 The husband shall lose his curtesy for his negligence. 
 
 26. What is the consequence of the husband's not being able to 
 
 obtain a seisin in deed before the wife's death through ex- 
 trinsic circumstances ? 481. 
 
 He loses his curtesy ; as if an estate descend on the wife, 
 and the husband hastens to take possession, and before he 
 reaches the spot the wife dies — the husband is not curtesea- 
 ble for want of the seisin in deed.^ 
 
 27. But if it be impossible under any circumstance to obtain actual 
 
 seisin before the wife's death, does the same consequence follow ? 
 
 No; the husband shall be entitled to his curtesy, on the 
 maxim, vnpotentia excused legem. 
 
 28. Give an instance of the application of the last rule ? 483. 
 
 It may occur where a woman is sejsed of a rent or advow- 
 son, and dies before it is due or there is an avoidance, in 
 which case the husband will be entitled to the rent and all the 
 presentations that occur during his life. 
 
 20. If an advowson becomes void and then the wife dies, is the 
 husband curteseable? 483-4. 
 
 Yes, if he present within six months from the avoidance. 
 
 30. What, if the wife die after the rent is due and before it has 
 
 been received once by her or her husband ? 484. 
 
 The husband will not be curteseable for want of actual 
 seisin, which he might have obtained. 
 
 31. Will it be sufficient to entitle a husband to curtesy of an advow- 
 
 son, if there has been one presentation during coverture, and 
 a second lapse ? 488. 
 
 It should seem that it would. 
 
 ' But a woman would be dowahlc. Dr. & Stud. 1/2.
 
 LAW TRACTS. 241 
 
 32. Is it necessary that the seism be such that it will make the wife 
 an ancestor ? 489. 
 
 No, for a seisin in law will not make an ancestor, but it will 
 support curtesy, if the husband cannot by possibility obtain 
 seisin in deed. 
 
 Qucere — If there be an abatement, will seisin in law 
 support curtesy ? — but this cannot well occur, as in most 
 cases where there is an abatement, the husband might 
 have procured seisin in deed, and for his negligence he 
 shall lose his curtesy. 
 
 3o. Enumerate the four requisites mentioned in this page necessary 
 to the perfection of curtesy ? 489. 
 
 The seisin must be, 
 1st. Sole. 
 
 2nd. Of the immediate freehold. 
 3rd. Of inheritance ; and 
 
 4th. Of that quality, that some of the husband's issue 
 may by possibility succeed. 
 
 34. What is meant by the requisition of a sole seisin ? 489, 490. 
 
 That there be a several seisin, not a joint tenancy, as 
 well oi the freehold as of the inheritance. 
 
 35. Name the four instances adduced by the Author, where the 
 
 husband shall not be tenant by the curtesy? 491, 492. 
 
 1. Where the wife is tenant for hfe merely. 
 
 2. Where a remainder intervenes between the wife's imme- 
 
 diate estate of freehold, and her inheritance. 
 
 3. Where the wife's estate of inheritance is preceded by 
 
 an estate of freehold in some other person ; and 
 
 4. Where the wife is tenant for life, with remainder to 
 
 another for her life, with remainder to herself in fee. 
 
 36. If the wife have the immediate freehold (or rather her husband 
 
 in her right,) with contingent remainder to another in tail, 
 with remainder to herself in fee, is the husband curteseable ? 
 494, 495, 496. 
 
 This point is undecided ; Cordal's case is in favour of the 
 husband, but Hooker v. Hooker is contra. 
 
 37. If the woman make a lease for life or years before marriage, 
 
 will the husband be curteseable ? 497. 
 
 2 F
 
 242 LAW TRACTS. 
 
 In the case of a lease for life, he will not : in the case of a 
 lease for years, he will. 
 
 38. If an heiress take an estate by descent, marry, and then assign 
 
 dower to her mother — Of what part is the husband curtese- 
 able? 497. 
 
 Of two thirds only — if his wife die during the lifetime of 
 the mother. 
 
 39. Is the husband curteseable of an estate pour autre me, or of a 
 
 descendible freehold ? 498. 
 
 No : the wife must have an estate of inheriiancc, and not a 
 freehold merely. 
 
 40. Is he curteseable of a base fee ? 499. 
 
 Yes, that being an estate of inheritance. 
 
 41. Will a term for years, preceding the wife's estate of inheritance, 
 
 prevent curtesy ? 499. No. 
 
 42. If the wife have the first estate of freehold, with remainder to 
 
 another for years, with remainder to herself in fee — Will her 
 husband be entitled to curtesy ? 499. No. 
 
 43. What consequence would follow from the intervening estate 
 
 being an estate for life, instead of an estate for years ? 500. 
 
 Neither dower nor curtesy would arise. 
 
 44. Must the wife die seised,'to entitle the husband to curtesy ? 500. 
 
 No, a seisin at any time during the coverture will suffice ; 
 as if she be disseised and die before the estate is revested, 
 the husband is curteseable. 
 
 45. A woman marries, is disseised, her husband dies, and she marries 
 
 again, and dies before the estate is revested — Is the second 
 husband curteseable? 501. 
 
 No, because the wife had no seisin. 
 
 [If the wife sell, the husband must join, and so he 
 conveys his curtesy. It is not so of dower, as the husband 
 may sell without his wife's concurrence.] 
 
 40. Is it essential, that an act of ownership be exercised by the 
 wife, or the husband in her right, to entitle him to curtesy? 501 .
 
 LAW TRACTS. 243 
 
 No, except as obtaining a seisin in fact constitutes such 
 an act. 
 
 47. Give an instance of this position ? 502. 
 
 If a woman be seised of a rent in deed, and marry, and a day 
 of payment passes, and neither husband nor wife receives the 
 rent ; yet he will be entitled to his curtesy. 
 
 48. What if the seisin fall on the wife before or after issue, or what 
 
 if the issue die before or after seisin ? 502. 
 
 Neither case will deprive the husband of his curtesy. 
 
 49. What species of inheritance must the wife be entitled to, to give 
 
 the husband his curtesy ? 502. 
 
 To such as the issue by him may inherit, 
 
 50. Illustrate this rule by an example ? 502. 
 
 If a woman be seised to her and her heirs by B, and take C 
 to husband, C can have no curtesy. 
 
 51. Limitation to a woman and her heirs by B, remainder to her 
 
 and her heirs by C — If she marries C, and B dies in her life- 
 time, and then she dies, is C curteseable, and why ? 503. 
 
 C is curteseable, because B's death makes the wife tenant 
 in tail apres^ which merges in her special tail with C, and so 
 she becomes seised of an estate of inheritance, to which C's 
 issue may inherit. 
 
 52. What four points must combine, with regard to issue ? 504. 
 
 1. It must be born alive, 
 
 2. During coverture, 
 
 3. And by possibility be entitled to the estate, 
 
 4. As heir. 
 
 53. What is considered evidence of life in the issue ? 504. 
 
 Crying was formerly the only proof of life, but now any 
 motion in the child will be sufficient to prove its existence. 
 
 54. What is the consequence of the death of the wife before the 
 
 birth of the child? 507. 
 
 The husband loses his curtesy, because the issue was not 
 born during coverture.
 
 241 LAW TRACTS. 
 
 f),! Wliat observations occur as to the person of the issue ? . 509. 
 
 It must he such as can take an estate, not a monster which 
 cannot inherit; but it may be deformed, deaf, or dumb, or 
 an idiot, as these are not disquahfications to succession. 
 
 50. Is it required that the issue sliall actually become entitled, to 
 give the husband curtesy ? 510. 
 
 No: the possibility of succession is all that is required. 
 
 57. Feme has an estate tail male, and females only are born — is the 
 
 husband curteseable ? 511. 
 
 No, because the females cannot by any possibility inherit. 
 
 58. Adduce the merits of the complicated case mentioned in this 
 
 page? 512. 
 
 A has an estate tail male, 
 
 Remainder to her for an estate tail female. 
 
 B has an estate tail female, 
 
 Remainder to her for an estate tail male. 
 
 C marries A, and has issue a female; A dies, and C marries 
 B, and has issue a male — By this he will have curtesy of 
 neither estate ; because as to A's remainder in tail female, 
 she was not seised of that immediately, at any time during the 
 coverture, and though the issue female will take the land, yet 
 she does not inherit to the estate of which the wife was seised 
 during the coverture, but to the remainder, and so vice versa 
 of B's estate. 
 
 59. What two instances may be produced to prove that it is to the 
 
 estate of the wife, and not to the land, that the issue must be 
 • inheritable? 513, 514. 
 
 These — Feme tenant in tail general, discontinues and takes 
 back an estate tail male, marries and has issue a daughter 
 during coverture ; she was not seised of an estate to which 
 this daughter could inherit, but the daughter may take 
 the estate tail general, and so succeed to the land. But if 
 feme have an estate tail male, which she discontinues, and 
 takes back an estate tail general, and after marries, and has 
 issue a daughter, the daughter may inherit — and so the 
 husband be curteseable of that estate. 
 
 60. What, if the italic take by purchase ? 514. -^^
 
 LAW TRACTS. S45 
 
 The husband is not entitled to his curtesy : to entitle him^ 
 the issue must take as heir to its mother. 
 
 (>I. Is it essential that the issue be the person to succeed to the 
 estate on its mother's death ? — and give an example. 516. 
 
 No ; the possibility of succession is all that is required, as 
 if a feme tenant in fee have a son by a former husband, a 
 child by the second husband will give him curtesy. 
 
 G2. What estate does the husband acquire by curtesy? 517. 
 A derivative estate for his own life. 
 
 63. Curtesy being a derivative estate, does it determine with the 
 
 destruction of the estate of the wife? 517. 
 
 Excepting when it is derived out of an estate tail, or 
 estates determining by shifting or springing uses or executory 
 devise, it does. 
 
 64. If feme be seised of a determinable fee, or of an estate of inhe- 
 
 ritance which is subject to a condition, what effect has the 
 happening of the determinable event or breach of the 
 condition on the husband's curtesy? 518, 519. 
 
 The curtesy determines with the estate out of which it is 
 derived. 
 
 In the instances put, the estate hss determined in the 
 lifetime of the wife. Would the same effect follow if 
 the termination happened after the wife's death ? — Yes. 
 (See p. 526.) 
 
 65. Tenant in tail general discontinues aid takes back a fee, 
 
 marries, has issue, and dies — Of wha/ is the husband curtese- 
 able? 519, 520. 
 
 Of the estate in fee, which hit own issue may avoid by 
 revesting the estate tail. j 
 
 66. If the feme be seised in tail, does the curtesy cease with the 
 
 determination of the estate tail in liis hfetime, and why ? 517, 
 521, 523, 524. (See next ch. qu. 52. p. 550.) 
 
 The curtesy remains, because it is taete implied in the gift. 
 
 ()7. Name the two cases put by Lord Coke ? 
 
 Feme, seised in fee, makes a gift in tail, rendering rent to
 
 ii46 LAW TRACTS. 
 
 herself and heirs ; marries, and has issue, and tenant in tail 
 dies, wlicrcby the rent ceases — the husband is not entitled to 
 the curtesy of the rent: [but he is of the reversion, which is 
 better.] But if tenant in fee give rent in tail to a woman, 
 and she die without issue, her husband is curteseable. 
 
 68. What objections arise to these cases? 522. 
 
 It may be objected that the feme had no estate in the rent, 
 but only in the reversion, to which the rent is incident — (As 
 to an entail of a rent created cle novo, and a rGnt existing, 
 there may be this difference, — the first would bear curtesy ; 
 the second, not ; that is, if the fee or estate of the donor of 
 the latter rent determine, the curtesy would determine also, 
 though not probably on the determination of the estate tail 
 created in the same rent.) These points are not clear, and 
 the Author supposes, in a note, that curtesy may be had of 
 rent reserved on a gift in tail. Hale's objection is not very 
 manifest. 
 
 (59. Feoffment to the use of A and his heirs, till B returns from 
 Rome, then to B and his heirs — A marries, and dies leaving 
 issue ; shall her husband be encurtesied ? 524. 
 
 Yes, because B's estate takes effect by springing and shif- 
 ting use — which rests on arbitrary decision, not on any 
 obvious reason. 
 
 70. Devise to B aid her heirs, but if she die under 21 without 
 
 having issue, fien over ; B has had issue ; which died, and 
 she died under iJl ; — is her husband curteseable ? 52Q, 
 
 Yes, because her estate determined by executory devise. 
 The Author's conjectures from 527 to 5^5, throw 
 but little Ight on the reasons of these distinctions. The 
 most forcible is that in page 533, but the same remarks 
 would apjiy equally to other determinable fees : 
 the best rtason is, that it rests on arbitrary autho- 
 rity: {et Vide the late case of Moody v. King, 2 
 Bing. 447.) 
 
 71. Does the detemiination of the wife's estate after her death, 
 
 when the husbind is actually seised of the property in right of 
 his curtesy, vary the above distinctions ? 526. 
 
 It should seeai not, but no authority warrants this position.
 
 LAW TRACTS, 24:'] 
 
 CHAP. vir. 
 
 OF DOWER. 
 
 1. What is (lower ? 5SG. 
 
 A provision for the widow out of the lands of her husband 
 on his death. 
 
 2. What is the most probable account of the introduction of this 
 
 tenure? 536. 
 
 That it was suggested by the King of Denmirk, heliaving 
 been ransomed by the Danish ladies ; and frcm the Danes 
 it may have been introduced into England. 
 
 3. What is there in common with dower and curtesy? 588. 
 
 Dower as well as curtesy determines with the extinction of 
 determinable estates, except as to estates tail and such as 
 arise by shifting use and executory devise, and in dl events, 
 it may be defeated as a tenancy by curtesy is defeated. 
 
 4. In the case of an exchange during coverture, igtlie vife entitled 
 
 to dower out of the lands given in exchangfi as veil as those 
 taken in exchange? 539. 
 
 She cannot have dower out of both es^tes, on .account of 
 the implied warranty, but may have he election. Hence a 
 woman is not endowable of every seising fact. 
 
 5. If the exchange be defeated, by the titlfof the lands given in 
 
 exchange being defective, will the widcv's dower be affected ? 
 
 That will be defeated also, and he/right to election taken 
 away. , 
 
 G. If the husband be a disseisor, will \\^ widow be entitled to 
 dower? 539. 
 
 Not as against the rightful owner ; lut as against the 
 husband's heir or assignee, she will. 
 
 7. What difference is there between dower and curtesy, as to 
 inheritable issue? 541.
 
 >48 LAW TRACTS. 
 
 To curtesy there must be issue rei verttatc : To dower, 
 the possibihty of having inheritable issue is all that is 
 i-eqviired. 
 
 8. In what other particular as to issue, is there a difference between 
 
 dower and curtesy ? 541. 
 
 The husband must be of sufficient age to be the father of 
 a child, to entitle him to curtesy ; whereas a woman may be 
 endowed at the age of nine. 
 
 9. What is the difference between dower and curtesy as to seisin ? 
 
 542. 
 
 A-^woman may be endowed of a seisin in law, but the hus- 
 band is eurteseable of a seisin in deed. 
 
 10. Will a msre right or title in the husband support dower? 543. 
 
 No, there must be a seisin. 
 
 11. If tlie husband be disseised, or being heir, an abator enters, 
 and :hen marries, will his wife be dowable? 54-3. 
 
 \o, for want of a seisin in law. 
 13. Wh* was held in Fitzwilliam's case ? 543. 
 
 Tiat if the husband convey away his estate on condition, 
 and ;he condition be forfeited during coverture, yet, if he do 
 not eater ^or the breach, no dower will arise for want of 
 seisin. 
 
 1 3. Is the wife of an heir-at-law endowable before entry ? 544. 
 
 Yes, if th descent falls during coverture, whether there 
 be an abatemtit or not, for the husband is seised in supposi- 
 tion of law, arl seisin for an instant (except it be in transilu) 
 is sufficient, f the descent fall before coverture, and the 
 abatement be a er, yet is the wife endowable. But if both 
 descent and aba3ment happen before coverture, then is the 
 w'ife not endowale for want of seisin. 
 
 11. What three instaices are put by Coke to show that seisin for 
 an instant wil not intitle wife to dower? 544. 
 
 1st. Whee cesmi que use, after stat. R. 3, and before 
 
 9,1 H.8, male a feoffment in fee. 
 2nd. Wher one of two joint-tenants makes feoffment in 
 
 fee; ait 
 3rd. On a fse, the wife of theconusee is not endowable.
 
 LAW TRACTS. 2-19 
 
 15. But may not these cases be referred to other and what principles 
 
 than momentary seisin ? 54!5. 
 
 Yes; for in fact, there is not any seisin in the two first 
 instances, and next to none in the third. 
 
 1. The statute of Richard, giving cestui que use power by 
 
 feoffment to transfer the possession of his feoffee, did 
 not confer any seisin on the cestui que trust, though it 
 entitled him to make a feoffment ; i, e. he had no seisin 
 in the land, but only a power to transfer his whole 
 interest in the use, part of which was the seisin of his 
 feoffee. 
 
 2. The joint-tenancy is not severed till the feoffment is 
 
 executed ; and then the husband has no seisin ; and 
 till it be executed, he has a joint seisin, which will 
 not entitle the wife to dowei'. 
 
 3. The grant and render of the fine are but several parts 
 
 of the same assurance ; and the whole being a fiction, 
 it is construed equitably and according to intention, 
 which is, that the conusee's wife should not be 
 endowed. 
 
 16. What says Blackstone on this subject? 546, 547. 
 
 That a wife shall not be endowed of a seisin in the husband 
 for a transitory instant — and the seisin of the conusee was 
 merely in transitu : but if the land abide in the husband 
 for a single moment, the wife shall be endowed ; of which 
 the descent and abatement during coverture is a good 
 example. 
 
 1 7. Mention the curious Welsh instance, where this doctrine was 
 
 carried to its utmost extent ? 547. 
 
 Father and son, joint-tenants, were both hung in one cart : 
 the son appeared to be the survivor by struggling longest, 
 and as such he was solely seised, which rendered ' his wife 
 dowable ; and upon a suit she obtained a verdict. 
 
 18. Name my Lord Coke's three cases, on the rule, dos de dotipeti 
 
 non debet. 547, 5 18, 549. 
 
 1. If A die seised of three acres, his wife is entitled to one 
 acre for her dower, and the other two descend to the 
 heir ; and if the heir die, his wife shall have dower of 
 the two acres, but not of the first acre, in his ancestor's 
 
 2 a
 
 ^."50 LAW TRACTS. 
 
 wife, for of that acre the heir had no seisin ; but the 
 same will descend on the death of A's widow to the 
 grandson. 
 
 3. If A be the father and B the son, and A being seised 
 of three acres in fee, and married, enfeoffs his son, 
 and dies, then is A's wife endowable of one acre ; and 
 if the son die, /tis wife will have dower of the two 
 acres, and also of the first acre after A's wife's death, 
 for of this acre B was seised in his lifetime. 
 
 3. A the grandfather, B the father, and C the son; — 
 A seised of three acres, enfeoflfs B — and B dies, 
 whereby his widow becomes entitled to one acre as 
 her dower. She enters, and then A dies, — his widow 
 is entitled to be endowed of the one acre in B's widow ; 
 but B's widow is entitled to retain the remainhig two 
 thirds of the same acre, and the reversion of the other 
 third of the same acre, which prevents it passing to 
 the son on A's wife's death. 
 
 19. In the first case, had not the fiither a seisin in law in the one 
 
 acre, before he assigned it to his grandmother as her dower ? 
 550. 
 
 Yes, but he had it merely to surrender it to her, which 
 he did, — and this seems a transitory species of seisin, which 
 will not bear dower. 
 
 20. In the second case, why is the claim of the mother to be post- 
 
 poned to that of the grandmother ? 551, 553. 
 
 Because the mother's dower is a derivative estate, and the 
 estate from which it is derived is subject to the grand- 
 mother's claim : the grandmother's title commenced on her 
 marriage : the mother's title commenced at the time of the 
 feoffment to the husband. There is an evident priority, 
 therefore ; but further, the husband became entitled by his 
 own act, and not by act of law : in the first case, the title of 
 the father and the grandmother became complete in the same 
 instant; in the second, the father had a complete seisin 
 before the grandmother, which is the i*eason of the difference. 
 
 21. In the third case, which is entitled to preference the grandmother 
 
 or mother ? 554. 
 
 The former.
 
 LAW TRACTS. *2 J 1 
 
 22. On what is the rule dos de doit founded ? 
 
 On this, that tlie hushand must have the freehold, which 
 is defeated by the former endowment if he be heir. 
 
 23. If tenant for life lease to another for life and die, will the wife 
 
 of the first tenant be entitled to dower — and why ? 555, 557. 
 
 She will not be entitled to dower, because the lessee 
 has not an estate of inheritance. 
 
 24. If ft tenant for life, for years, or at will, make a feoffment in fee, 
 
 will their respective wives be entitled to dower ? 555, 556. 
 
 Yes, as against the feoffees ; for they cannot claim without 
 admitting that the husband had an estate which bears dower ; 
 if they claim under his feoffment, they will be estopped from 
 saying that he had not an estate of inheritance. 
 
 25. If tenant in tail make a feoffment in fee, will his wife be entitled 
 
 to dower? 
 
 No, because the feoffment was a discontinuance, and con- 
 verted the estate tail into a base fee ; of that base fee the wife 
 is endowable, but as the issue are not barred by fine, they 
 may enter immediately on the death of the feoffor ; which 
 entry revests the estate tail, and of that estate tail the hus- 
 band did not die seised. The statute De donis enacts, that 
 all alienations by tenant in tail, for longer term than his 
 own life, shall be voidable by the issue in tail and remainder- 
 men : the heir in tail may therefore enter for the forfeiture, 
 which entry will be discharged of dower ; and as the heir of 
 the husband can take free of dower, his feoffee may take, 
 discharged of the same burden also. 
 
 26. What is the strict definition of dower ? 560. 
 
 It is the third part of the lands and tenements of the 
 husband, which the wife is entitled to, if the husband be solely 
 seised thereof in deed or law at any time during the coverture, 
 for an estate of inheritance with the immediate freehold, and 
 to which the issue of the wife by her husband may by possi- 
 bility be heir ; and the wife attains the age of 9 in her 
 husband's lifetime, and survives him. 
 
 27. How many sorts of dower are there, and which is the only one 
 
 now worth considering? 560, 561.
 
 Q3,i LAW TKACTS. 
 
 There are five sorts of dower, of which that ex provisione 
 frgis, is the only one now worth attending to. 
 
 28. As to the wife herself, what four circumstances must concur to 
 
 entitle her to dower ? 562, 563. 
 
 1st. She must be actually married to the man of whose 
 estate she claims dower, the rule being, ubi nullum 
 tuaritaghnn ibi nulla dos. 
 
 2d. She must he past the age of 9 years at the husband's 
 death, that being the age when by common law she 
 is supposed capable of having issue : the age of mar- 
 riage is immaterial ; though under 9 or upwards of 
 100, dower will attach. 
 
 3d. She must not be an alien — as such a person cannot 
 hold property. 
 
 4th. If the husband be christian, she must not be an infidel. 
 
 29. Mention the case in the Institutes, as to this latter point ? 563. 
 
 A Jew who married a Jewess, is converted and purchases 
 land in fee ; his wife is not endowable, because he is a 
 christian and she is an infidel. 
 
 30. What is the consequence of the wife's being entitled to a third 
 
 part — and adduce the examples ? 564<, 565, 566. 
 
 The consequence is, that she cannot be endowed of a tene- 
 ment which is indivisible ; as 
 
 1st. Of a common in gross without number, as then the 
 common would be doubly stocked — But of a common 
 ill gross for a certain number, she may be endowed : 
 so of all other commons, as appendant and appurte- 
 nant to her third. 
 
 2d. Of a castle for the defence of the realm, as distinguished 
 from a castle for private habitation. Of the former 
 sort are feudal baronies, all of which are now abolished 
 except that of Arundel. 
 
 31. What is the manner of endowment ? 567. 
 
 The wife is entitled to a separate third of the whole by 
 metes and bounds, if the husband be solely seised ; but if he 
 be seised in common, then she must take her dower as her 
 husband had his purparty, viz. in common; for the derivative 
 estate must participate of the qualities of the primitive one.
 
 LAW TUACTsi. UoJ 
 
 32. How is a woman endowed of an advowson, or toll of a mill i 
 
 568. 
 
 She is entitled to every third presentation, as to the advow- 
 son ; and to every third dish, as to the toll. 
 
 33. By what three means may dower be barred ? 568. 
 
 1. By jointure. 
 
 2. By the wife's default. 
 
 3. By the husband's crime. 
 
 Of Jointure. 
 
 34. What does Coke describe this estate to be ? 569. 
 
 A competent livelihood of freehold, to take effect in posses- 
 sion or profit, after the husband's death, for the life of the 
 wife at least. 
 
 35. Is the competency of the estate now an object? 569. 
 
 No, as what may be competent for one, may not be consi- 
 dered so for another. 
 
 36. What is enacted by the Statute of Uses, as to this estate ? 570, 
 
 571. 
 
 1 . That if the wife have an estate of legal freehold for her 
 
 life, as her jointure, she shall not claim dower. 
 
 2. If she have no such jointure, then she may have dower. 
 
 3. If she be evicted of her jointure, her dower shall revive ; 
 
 'and 
 
 4. If the jointure be made after marriage, then the wife 
 
 surviving may elect to take either her dower or her 
 ^ jointure. 
 
 37. What is an equitable jointure? 572. 
 
 At law, nothing short of a freehold estate for the life of the 
 wife at least, will bar her dower : in equity, however, a woman 
 is bound by her ante-nuptial agreement, whatever it be, and 
 must accept it in lieu of dower. The provision therefore may 
 be of money, an annuity, a legacy, &c. and this is a good 
 equitable jointure. 
 
 38. Was jointure allowed at the common law, before the Statute of 
 
 Uses? 572.
 
 U5\ LAW TRACTS. 
 
 No ; because it is a rule tliat no right or title to land can be 
 barred by a collateral satisfaction, but only by release or con- 
 firmation. 
 
 30. How came this provision to be introduced ? 575. 
 
 Before the statute of Hen. 8. lands were usually conveyed 
 to uses, and of a use the wife was not endowable. At that 
 time the wife was commonly provided for by a jointure : but 
 when the statute transferred the possession to the use, the 
 wife became entitled to a double provision, viz. her dower 
 and jointure too, which was contrary to the intention of the 
 parties. The statute provides therefore that a jointure shall 
 be a bar to dower. 
 
 40. Under what four heads is it proposed to consider the law of 
 
 jointure ? 576. 
 
 1. Of what nature the provision must be. 
 
 2. At what time it may be made. 
 
 3. By what means ; and 
 
 4. Under what circumstances. 
 
 41. What is observable on the first point? 576. 
 
 That the provision must be either of an estate in land, or 
 of some interest issuing out of it, as a rent. 
 
 42. And what on the second ? 
 
 That jointure may be made either before or after marriage. 
 
 4'3. What is the consequence of its being made before marriage? 577. 
 
 That however inadequate the jointure may be when com- 
 pared with dower, and under whatever conditions it may be 
 made, and though the wife be a minor ; yet the acceptance of 
 a jointure at a time when she is under no coercion, precludes 
 her of all right to dower. 
 
 44'. W^hat is the consequence of its being made after marriage ? 578. 
 
 That after the coverture has ceased, the wife may refuse 
 to accept it, and claim her dower. But having once made 
 her election when she is free from coverture, (as distinguished 
 from an election while she is under coverture, which is of no 
 avail,) she is for ever barred of claiming the right she has 
 refused.
 
 LAW TRACTS. Q55 
 
 45. What if an ante-nuptial settlement do not express the provision 
 
 intended for the wife to be in bar of dower ? 579. 
 
 Then it will not be so, and the wife may claim her dower 
 and the provision too. 
 
 46. What other point of difference is there between a post and 
 
 ante-nuptial settlement ? 579. 
 
 In a post-nuptial settlement, if the woman join her husband 
 in a fine of the jointure lands for the purpose of conveying 
 them away," she may claim dower of the residue of her hus- 
 band's estates : whereas in ante-nuptial settlement, if the 
 woman conveys by fine, the fine passes the jointure, and the 
 jointure was in bar of dower : The wife therefore shall not 
 be endowed again of the other lands of her husband. 
 
 47. Was it ever questioned, whether a jointure before marriage was 
 
 good? 580. 
 
 Yes ; but that doubt has been long put at rest by Ashton's 
 case, and the wording of the Statute of Uses. 
 
 48. By what means may a jointure be made ? 
 
 By any conveyance, either at common law or by the Statute 
 of Uses, which takes effect in the husband's lifetime ; as also 
 by will. 
 
 49. What objections have been raised against making a jointure by 
 
 will? 
 
 1. That the Statute of Wills was not enacted till after the 
 
 Statute of Uses ; and therefore, that the means alluded 
 to in that act could not refer to wills, which were not 
 then introduced. 
 
 2. That jointure must be made before or during coverture ; 
 
 therefore it could not be made by will, which does 
 not take effect till after the husband's death. 
 
 50. In what adjudication were these objections overruled ? 
 
 In the case of Leake v. Randall. 
 
 51. In what manner must the provision be made ? 583. 
 
 The word imports that the wife should have a joint estate 
 with her husband ; and the instances mentioned in the statute 
 are joint estates. But the case of a devise shows that a several
 
 estate may l;e a jointure within the statute ; and it has been 
 helil, that a limitation to the luisband for life, with remainder 
 to the wife for hfc, is a i^^ood jointure. 
 
 52. As to the circumstances, wliat five particulars must concur to 
 complete a jointure? o84. 
 
 1. The provision must be made by the husband or his 
 
 ancestors. 
 
 2. It must be made to take eflfect in the husband's lifetime, 
 
 or immediately on his decease. 
 
 3. It must be for an estate of freehold for the wife's life 
 
 at least — which 
 
 4. Must be limited to or to the use of herself, and not to 
 
 any one in trust foiUier — and be 
 
 5. In satisfaction of dower. 
 
 5.3. What observation occurs on the first point ? 585, 586. 
 
 That, since the -statute has not mentioned by whom the 
 provision must be made, it has been held, thp "f it be made 
 by any person at the instigation, and for a consideration paid, 
 by the husband or his ancestors, it will suffice. 
 
 54. And what on the second ? 587. 
 
 That it must be certain at the time the settlement is made, 
 that the wife will have the possession or profit immediately on 
 the husband's decease. 
 
 55. Adduce the seven examples, in illustration of this observation ? 
 
 588, 589, 590. 
 
 1. Limitation to a stranger for life, remainder to the in- 
 
 tended wife for life, remainder to B (the intended 
 husband) in tail, &c. 
 
 2. Limitation to the father for life, remainder to the son (the 
 
 intended husband) for life, remainder to the intended 
 wife for life. 
 
 3. Limitation to the intended husband for life, remainder 
 
 to a stranger for a freehold or a chattel, remainder to 
 the intended wife for life. 
 
 4. Limitation to the intended husband in tail, remainder to 
 
 the intended wife in tail. 
 
 5. Limitation to the intended husband, for the life of a 
 
 stranger, remainder to the intended wife for life.
 
 I 
 
 LAW TRACTS. 257 
 
 G. Limitation to A for life, remainder to B in fee, who on 
 his marriage settles an estate to the use of his intended 
 wife for life. 
 
 These are bad jointures, because of the uncer- 
 tainty, at the time of the settlement made, whether 
 the wife will have profit or possession iumiediately 
 on her husband's death ; — but 
 7. Limitation to A for the life of the intended husband, re- 
 mainder to wife for life, is a good jointure ; because 
 on the decease of the husband, the wife's estate is 
 at the time of the settlement certain of coming into 
 existence. 
 
 56. What two primary observations occur on the third point? 59 L 
 
 1. That the estate must be of freehold, therefore a term 
 
 determinable on the wife's death will not suffice ; and 
 
 2. That though the estate must be for the life of the wife 
 
 at least, yet a collateral limitation may be added to 
 determine that estate by her own act or default, as 
 distinguished from a collateral limitation which will 
 determine the estate without her own act or default. 
 
 57. Illustrate this latter observation by examples? 591. 
 
 Limitation to the intended wife durante viduitate is a good 
 jointure, for marriage, which determines the estate, is her own 
 act ; but a limitation to her for life, on condition that if C 
 returns from Rome before her death, then that the estate 
 shall enure to him in fee — this is no jointure, for the act 
 which determines the estate is not her own. 
 
 58. And if a condition be annexed to the wife's life estate, determin- 
 
 ing that estate by an act to be done by herself, will that vary 
 the case ? 592. 
 
 No ; the jointure will be equally a good bar of dower. 
 
 59. In Vernon's case it was held, that since the wife entered and 
 
 accepted the conditional jointure, she was barred of dower ; 
 does not this imply, that entry and acceptance are essential to 
 the validity of a conditional jointure? 593, 594. 
 
 No ; because the jointure was made after marriage, and 
 the entry was necessary to fix her election. The condition 
 was, that if the wife took her jointure, she should confirm 
 
 2 H
 
 258 LAW TRACTS. 
 
 the testestor's will, which was a condition depending on her 
 own act, and therefore good. 
 
 60. What observation occurs on the point of quantity of the wife's 
 estate ? 591, 595. 
 
 That it be for her life at least, but it may be larger, as to 
 her in tail ; but if it be liable to be defeated in her lifetime 
 without her own act or default, then the anipleness of the 
 estate will not make up for the contingency of its determining 
 in the wife's lifetime. 
 
 Gl. Is an estate to the wife for life of another person a good 
 jointure? 595. 
 
 No ; because it may determine by an act which is not 
 within her control. 
 
 62. What is to be understood by the fourth point ? 596. 
 
 That the wife shall have the legal estate, and shall not be 
 under the power of a trustee. 
 
 63. What is requisite as to the fifth point ? 596. 
 
 That the jointure be in satisfaction of dower. 
 
 64. What, if the deed be silent on this head ? 597. 
 
 Then it may be proved, by iuini voce testimony, that it was 
 the intention of the parties that the jointure should be in satis- 
 faction of dower; for a deed may be explained by parol evi- 
 dence, if the proof be not inconsistent with the deed. 
 
 65. What are the reasons for denying averments of the testator's 
 
 intention to jointure, when he has made provision for his wife 
 by will, and omitted to say, that it is to be in satisfaction of 
 dower? 598. 
 
 1. A devise implies a consideration; and the intention can 
 
 be collected only from the words of a will. 
 
 2. That the whole will relating to lands must be in writing; 
 
 which the intention collected from oral testimony is 
 not. 
 
 (jQ. What if the jointure be declared to be in satisfaction of part of 
 dower ? 599.
 
 LAW TRACTS. 259 
 
 If no particulai- part be named, then is the jointure void 
 for uncertainty ; but if a part be named, then as to that part 
 the jointure will be a good bar. 
 
 67. What default of the wife will bar her dower ? 600. 
 
 1. Elopement; and 
 
 2. Detention of charters. 
 
 68. What is meant by elopement ? 600, 601. 
 
 A voluntary departure of the wife, from the house of her 
 husband ; or a forcible abduction and a subsequent voluntary 
 consent to remain away with an adulterer, and refusal of her 
 husband to be reconciled. 
 
 69. What reconciliation will restore dower ? 601. 
 
 The voluntary reconciliation of the husband, as distin- 
 guished from a reconciliation by ecclesiastical censures, which 
 does not purge the misconduct of the wife, so that she may 
 aver, quod nonfuit adulterium. 
 
 70. What is meant by detention of charters ? 600. 
 
 Detaining from the heir the title deeds, when he has 
 tendered an assignment of dower : this offence in the wife is 
 punished by a forfeiture of her estate. 
 
 71. What ci'imes of the husband will deprive a wife of dower ? 
 
 Formerly felony, but now treason only, provided the hus- 
 band be convicted : in many modern statutes against coining, 
 &c. dower is saved. 
 
 CHAP. VIII. 
 
 OF TERMS FOR YEARS AND CHATTEL INTERESTS. 
 
 1. What is denominated a chattel real, and why ? 603. 
 
 A term for years is so called, because it partakes of the 
 nature of real property, the subject of it being land ; and 
 it is called a chattel, because it partakes of the nature of
 
 J^GO LAW TRACTS. 
 
 personal property, not being a freehold, but an interest for 
 a definite period. 
 
 J?. How were these interests fomierly considered? 604. 
 
 As of very little value ; though for a 1000 years, they were 
 deemed a less estate than an estate for life — Freeholds were 
 the property of freemen ; chattels and leases, the property of 
 villians, and of little or no repute. 
 
 3. How might these interests be transferred ? 603. 
 
 By word of mouth ; and were devisable by will long before 
 the Statute of Wills. 
 
 4. What distinction is there between a condition annexed to a 
 
 chattel real, and a condition annexed to a freehold ? 605-6. 
 
 On the breach of the former, the estate becomes instantly 
 void, and the reversioner may grant over without entry. On 
 the breach of the latter, the estate is only voidable, and to 
 make it void, entry is necessary. Therefore, till entry the 
 grant of the reversioner is invalid. 
 
 5. Of what two species are chattel interests ? 607. 
 
 1. For years, which owe their origin to the common law. 
 
 2. For uncertain interests ; as estates by Statute staple, 
 
 Elegit, and devise, which owe their introduction to 
 some positive enactment. 
 
 6. What arc estates for a shorter period than a year called ? 608. 
 
 Estates for years, though for a month only, — but this is 
 intended to mark the remedies and quality of the estate 
 rather than its duration or quantity. 
 
 7. How are these interests granted ? 609. 
 
 Usually by lease ; but they may be created by feoffment, 
 or other conveyance, as also by devise. 
 
 8. What is one grand requisite of every term? 609. 
 
 That it have a certain beginning and a certain end. 
 
 9. What is a consequence of the last position? 610. 
 
 That after the term has commenced in interest, the time 
 of its duration may be known with precision.
 
 LAW TRACTS. 2(>I 
 
 10. Is it necessary that the commencement of the term should be 
 
 ascertained at the date of the lease ? 610. 
 
 No ; but it must depend on an event that certainly will 
 happen. 
 
 1 1 . Give an example in answer to the last question ? 
 
 Lease to A for 20 years from the death of B : — this is a 
 good lease. 
 
 12. What was Locroft's case ? 612. 
 
 A, possessing a lease of 40 years, granted to B so many of 
 the years as remained unexpired at his (A's) death. The 
 grant was held void for uncertainty. 
 
 13. What was Gravenor's case? 613. 
 
 Lease to A for life, but if he died within 60 years, then 
 his executors to have the lands for so many of the 60 years 
 as remainded unexpired at his death. This was void, (as to 
 the estate of the executors,) for uncertainty. 
 
 14. Is there any difference in these cases as to time or term ? 614. 
 
 It seems not ; if the time be uncertain in commencement, 
 the lease will be void. 
 
 15. What may be adduced as a corollary to these cases ? 615. 
 
 That a lease for years may be made on condition or con- 
 tingency precedent. 
 
 16. With reference to what four times may leases for years be con- 
 
 sidered ? 615. 
 
 The times — 
 
 1. Of computation. 
 
 2. Of commencement in interest. 
 
 3. Of continuance ; and 
 
 4. Of determination. 
 
 17. What is the difference between the first and second of these 
 
 points — and give an instance ? 615, 616. 
 
 The time of computation marks the period from which the 
 term of the lease is to commence. 
 
 The time of commencement marks the period when the
 
 2(iSj LAW TRACTS. 
 
 tenant is to enter into possession and enjoyment of that term. 
 Thus lease to A, to liokl from Michaehnas next, for 21 years, 
 to be computed from Lady-day last, is an instance of the 
 time of comi)utation and commencement being at different 
 periods ; but connuonly they are reduced to the same 
 ] eriod. 
 
 18. How is a lease, dated and delivered on the 25th March, with 
 
 habendum from and after the date and thenceforth for 7 
 years, construed? 617. 
 
 The lease begins in computation from delivery ; but in 
 interest, from or after the day of delivery. 
 
 19. As to the time of computation, from what five periods may a 
 
 lease begin ? 618. 
 
 1. From a day past. 
 
 2. From the present time. 
 
 3. From a day to come. 
 
 4. From an event to arise ; and 
 
 5. From a time to be named by a third person. 
 
 aJO. What observation occurs on the first point? 
 
 That a lease from the 25th of March last, is good — that 
 Ijcing the time of computation, and the present the time of 
 commencement in interest. 
 
 21. And what on the second? 
 
 That a lease to hold from henceforth or from the making, 
 is good — in which case the times of computation and com- 
 mencement are the same. 
 
 22. Where a lease was made to hold " henceforth for a term of 21 
 
 years, the said term to begin on the 25th of March next," how 
 were these words reconciled? 619. 
 
 *' Henceforth" was held to refer to the time of computation, 
 and " the said term to begin," &c. to the time of commence- 
 ment in interest. 
 
 2;}. What observation occurs on the third point? 619. 
 
 That a lease from Michaehnas next is good, — the times of 
 computation and commencement being the same.
 
 LAW TRACTS. 2Gli 
 
 24. And what on the fourth ? 
 
 That a lease to B for 21 years from the time he pays 20*. is 
 a good lease. The event must happen in B's lifetime, and 
 cannot be defeated but by his own default of payment. 
 
 25. And what on the fifth ? 
 
 That at the time of naming the term, both the lessor and 
 lessee must be living. The time when the term is to com- 
 mence, both in computation and interest, will depend on the 
 term of the lease. If no time be named in the lease, the 
 term will commence in computation and interest from the day 
 of nomination — Semh. 
 
 26. Why cannot the commencement of the lease in interest be from 
 
 a time past? 621. 
 
 Because antecedent to the execution of the lease the right 
 must have been in some other person. It is true that the 
 grant of a reversion, to which rent is incident, will ntitle the 
 grantee to the rent ; but no agreement can entitle him in point 
 of estate, for any period prior to the date of the lease. 
 
 27. From what three times may a lease commence in interest ? 
 
 1. From time present. 
 
 2. From particular time future ; and 
 
 3. From the happening of an event. 
 
 28. A lease to hold generally for 21 years, commences in interest at 
 
 what time ? 622. 
 
 From the time it is delivered. 
 
 29. And a lease to hold from a day that is passed, commences in 
 
 interest from what time ? 622. 
 
 From the time of delivery. 
 
 30. Give an instance of a lease, commencing in interest from the 
 
 happening of a contingency ? 622. 
 
 A lease to hold from the time of paying a sum of money, 
 is a lease of this description. 
 
 31. Limitations for terms of years, may bo arranged under what 
 
 five heads, as to the time of commencement, in computation 
 and interest ? 624.
 
 204 LAW TRACTS. 
 
 Those which specify the time — 
 
 1. Generally. 
 
 2. From the date of the deed. 
 
 3. From the day of the date, or some future particular time. 
 
 4. From the end of an existing term ; and 
 
 5. From an event. 
 
 32. What is the consequence of the lease bearing an impossible date, 
 
 as the 40th of March ? 625. 
 
 The term then commences from the date of the delivery, 
 which, as a general rule, is always supposed to be on the day 
 of the date ; but the contrary may be shown. 
 
 33. What is the difference between a lease dated the 30th of Febru- 
 
 ary, and one dated the 29th of February ? 627. 
 
 The first date being impossible, the lease will commence 
 immediately ; but the second date not being impossible, the 
 lease will not commence till the next Bissextile year, though 
 it wait three years for operation. 
 
 34. What is the difference between a lease dependant on a sup- 
 
 posed prior lease which is void, and a lease limited after ano- 
 ther lease which is misrecited in a material point ? 625, 626. 
 
 In the first case, the lease shall begin presently ; for a void 
 limitation and no limitation is all one. In the second, the 
 misrecital cannot effect the prior good lease ; but the second 
 lease shall commence in computation from the tune of its 
 delivery, but not in interest till the end of the first lease. 
 
 35. If the lease mention no time in particular when it is to commence, 
 
 w hat does the law infer ? 628. 
 
 That it shall commence from the time of its delivery, which 
 is presumed to be on and inclusive of the day of its date : 
 unless the contrary be shown. 
 
 36. When does a lease commence on and inclusive of the day it 
 
 bears date ; i. e. in possession and not in reversion ? 629. 
 
 When it is limited to commence — 
 
 1. From the date, as distinguished from the day of the date. 
 
 2. From the time of making. 
 
 3. From the time of sealing and delivery ; and 
 
 4. From henceforth.
 
 LAW THACTS. r^G/> 
 
 37. Is a lease to commence from the clay of the date, a lease in pos- 
 
 session or reversion ? G30. 
 
 It was formerly holden to be of the latter description ; 
 because, " from the day," implied that the day was to be 
 excluded. The case of Pugh v. Duke of Leeds, however, 
 has levelled this distinction, and made a lease " from the 
 day of the date," as much a lease in possession as a lease from 
 the date. But Mr. Powell has shown this case of Pugh and 
 Leeds to have been contrary to the authorities, and no con- 
 veyancer would now make a lease under a power which 
 requires that the lease should be in possession, to commence 
 from the day of the date. Indeed, leases are now more fre- 
 quently made to commence from the day next before the day 
 of the date. 
 
 38. What is the difference between " term " and " time " in legal 
 
 signification— and give Lord Coke's illustration? &^2, (iSi^. 
 
 The word " term" refers to the interest under the lease. 
 
 The word ** time " comprises the space of the term. 
 
 Thus, lease to A for 21 years, and after the end of the 
 said term, to B for life — B's estate will commence on the 
 surrender of A's term before the 21 years have expired : but 
 if the lease be to A for 21 years, and after the expiration of 
 the said 21 years or the said time, to B for life, B's estate will 
 only commence by the effluxion of time, and not by sur- 
 render of A's estate. B's remainder therefore is in this latter 
 case contingent ; for if A's estate be surrendered, B's estate 
 cannot immediately vest — and being of freehold, is it not 
 void ? 
 
 39. Are leases for 1000 days, or from day to day for 40 years, good ? 
 
 034-5. 
 
 Yes ; as much so, in the first instance, as if the time had 
 been resolved into years and months; and in the second, as if 
 the words from day to day had been omitted. 
 
 40. How is a lease from 3 years to 3 years for 10 years, consti'ued ? 
 
 G3G. 
 
 As a lease for so many periods of 3 years as are in 10 — via. 
 for nine years. 
 
 11. What is a lease from year to year? d^d, 637. 
 
 2 I
 
 ^t;^ LAW TRACTS. 
 
 A lease for one year certain ; and after the commencement 
 of every succeeding year, a lease for that year also : so, though 
 it be but for one year at first, it may in event grow into a term 
 of 100 years. 
 
 42. A lease for one year, and so for the next year, and from year to 
 
 year, so long as the parties jitease, is construed how ? 637. 
 
 As a lease from year to year, and not as an estate at will ; 
 for it could not be determined at any time, but only at the 
 end of a year by six previous months notice to quit. 
 
 43. What was adjudged in Stomfit v. Hicks? 638. 
 
 That a lease for a year and from year to year as long as 
 it should please both parties, was a lease for two years, and 
 afterwards an estate at will. 
 
 Sed qiicere — unless it means a will to be expressed at 
 the end of every year by due notice to quit. (See 
 p. 642.) 
 
 41. Demise for a year and so from year to year, gives what interest? 
 639. 
 
 A lease for 2 years certain, and after, a lease from year to 
 year : — [in short, a lease from year to year, as the tenancy 
 may be detei'mined at the end of the first year by due notice 
 to quit — Semb.^ 
 
 45. If rent be in arrear for part of one year and part of another year, 
 may lessor distrain if lease be by parol from year to year ? 639. 
 
 Yes ; and avow for so much rent in arrear upon one entire 
 lease, as the event proves it to be, without avowing for several 
 rents on several leases for one year. 
 
 i^. What also was adjudged in Legg v. Strudwick ? 640. 
 
 That after the commencement of each new year, this was 
 become an entire lease, certain for the years past, and also 
 for the year so entered upon. 
 
 47. What said Mr. Justice Duller in Birt v. Wright ? 640. 
 
 That if tenant from year to year holds for 4 or 5 years, he 
 may declare on a demise for that number of years. 
 
 48, Under what two heads may the distinctions respecting leases 
 
 from year to year be arranged? 641.
 
 LAW TRACTS. 267 
 
 1. That of giving an estate for a certain time, (as a year,) 
 
 and leaving it to the parties to extend that time for a 
 further certain period, (as a year) at their pleasure ; 
 which pleasure is in eftect expressed by neither party 
 giving to the other, half a year's notice to quit : and 
 
 2. That of attempting to give a right for an indefinite 
 
 period, as from year to year till the death of A ; and 
 leases of the second description are void. 
 
 49. How is a running lease for 3, 6 or 9 years, determinable on 
 
 notice, construed ? 641. 
 
 As a lease for 3 years certain, and by the omission of notice , 
 as a lease for 6 years, and so on, the same as a lease from year 
 to year ; but it determines with the ninth year without notice. 
 
 50. Is it necessary, that the period for which the term is to endure, 
 
 be reduced to a certainty at the time the lease is made ? 644. 
 
 No ; for if in the fluxion of time a day will arrive which 
 will make it certain, that is sufficient. 
 
 51. Is a lease for 21 years after 3 lives, a good lease ? 644. 
 
 Yes ; for id certum est quod certum reddi potest. 
 
 52. Is a lease from 3 years to 3 years during the lessor's life, a good 
 
 lease ? 645. 
 
 Clearly not, as a lease for years, for there is no certainty 
 as to how many spaces of 3 years shall compose the lease, as 
 there is in a lease for 3, 6 or 9 years— viz. 3 ; but such a 
 lease will be good for the lessor's life if accompanied with the 
 proper ceremonies. 
 
 53. Lease to C of White-acre, for so many years as B hath of Black- 
 
 acre, is construed, how ? 647. 
 
 As a good lease, for its certainty is made out by reference. 
 
 54. Is a lease during the minority of a person good ? 647. 
 
 Yes, — for so many years as will expire before the minority 
 ceases. 
 
 55. State Dedicot's case ? 647. 
 
 Grant to a widow during the nonage of her husband's heir, 
 who was 5 years old— This was held a good lease for 16 
 years.
 
 268 LAW TRACTS. 
 
 Ul In tlie case of a lease during minority, does the term determine 
 by the death of the infant? 648. 
 
 Yes ; if tliere be nothing to show an intention of continu- 
 ing it, for then the minority ceases. 
 
 ;>T. Is a lease during the minority of an unborn child good? 648. 
 
 It should seem not ; for as it is uncertain whether a child 
 will be born, the beginning, continuance and end of the 
 term are each uncertain. 
 
 .58. How does the Author propose to make a good lease during the 
 minority of an unborn child ? 647. 
 
 By making the birth the time of commencement, and the 
 minority the time of continuance. 
 
 5V. State the difference between the grant of a rent already created, 
 and a grant of lands till a stipulated sum be paid ? 649. 
 
 If the rent be 20*. a year and granted to A till he has 
 received 21/. — this is a lease for 21 years ; but 
 
 If lands of the value of 20*. per annum be granted to A 
 till he has received 21/. out of the rents, this is a lease at will 
 only, unless followed with the livery of seisin, in which case 
 it passes a determinable estate for life ; for it is uncertain 
 whether the land will continue of the annual value of 20*. 
 
 60. What if lessee grant a rent out of his lands generally ? 650. 
 
 The rent will continue so long as the estate out of which 
 it issues shall continue. It cannot be an estate for the life of 
 the grantee merely, because the derivative estate cannot be 
 of a freehold quality, when the primitive estate is leasehold ; 
 and no restriction appearing, the grantee is entitled to the 
 rent to the end of the term. 
 
 61. And what, if he confine it to the life of the grantee? 650, 651. 
 
 Then the rent shall continue for all the term if the grantee 
 
 live so long. 
 
 62. What passes by a lease for so many years as J. S. shall name ? 
 
 652. 
 
 A right only, and no estate, till the years are named ; but 
 on nomination, the lease is good in interest, i)rovided the
 
 LAW TllACTb. U6i) 
 
 lessor and lessee be then living. The lease gives the interest, 
 and the nomination ascertains the period of enjoyment. 
 
 63. What is the difference between a lease for so many years as the 
 
 lessor shall live, or be parson of a certain church ; and, a lease 
 for definite period of years, (as 21 years,) if the lessor shall so 
 long live, or be parson of a certain church ? 653-4. 
 
 The first lease is void as a lease for years, for uncer- 
 tainty of determination ; whereas, the second is good, though 
 it have an uncertain collateral determination annexed to it. 
 
 64. Into what three classes may terms for years be divided ? 655. 
 
 Into terms for years — 
 
 1. Absolute. 
 
 2. Conditional; and 
 
 3. With collateral determinations. 
 
 65. What is the difference between terms for years absolute, and 
 
 terms for years with collateral determinations ? 656. 
 
 The first are such as determine by effluxion of time only. 
 
 The second are such as may determine by the happening of 
 some event before the effluxion of the time named ; and may 
 be moulded in any manner according to the intention of the 
 parties. 
 
 66. Lease for the lives of A and B, continues how long ? 657. 
 
 During the life of the survivor — contra, if for their joint 
 lives. 
 
 67. Lease for 21 years, if A and B live so long, has what conti- 
 
 nuance ? 
 
 It determines with the 21 years, or the death of A and B 
 during that period; the words "either of them" being 
 wanting to give it further continuance. 
 
 68. What was held, where a lease was made determinable by the 
 
 words "if the said (husband) and (wife,) or any of their 
 children shall live so long "? 657. 
 
 That the word or being disjunctive, the estate continued 
 during the life of the surviving wife. 
 
 The Author with good reason, questions tliis case ; for 
 if the word or were disjunctive, the husband and wife were
 
 270 IVW TRACTS. 
 
 coupled toi^'ether, ami the husbaiul being dead, there was 
 an end of that alternative. 
 
 GU. NN'hat interests do statutes merchant, staple, and elegit confer? 
 Go8, (i39. 
 
 Chattel interests, but not for years, as no definite period is 
 fixed for their duration — the conusee being in, until he shall 
 be satisfied his debt and damages. 
 
 70. By what ratio is the conusee to account ? 659. 
 
 At law, according to the extended value. 
 In equity, according to the actual produce of the land, or 
 rather, for what he has actually received. 
 
 71. \\'hat was held in Cordall's case, where the devise was of certain 
 
 manors to the testator's executors, until his debts were paid, 
 and after, over? 661. 
 
 That the executors took chattel interests transmissible to 
 their executors, and no freehold. If indeed they took a free- 
 hold for their lives, then the trust would determine by their 
 deaths — before, perhaps, the debts were paid. 
 
 12. Devise to B, till 800/. is paid out of the profits, gives B what 
 
 estate? 661, 662. 
 
 No freehold ; but a chattel interest determining with the 
 time the sum might have been raised out of the profits ; but 
 if the heir enters, B or his executors may hold over, or 
 pursue his action of ejectment against the heir, at his election. 
 
 13. 8tate the distinction, as to a devise during the minority of the 
 
 testator's heir-at-law ? 662, 663. 
 
 It will determine with the minor's death, if the devise be 
 merely because he is under age ; or as a confidence for his 
 benefit or education : — contra, if it be for the advancement of 
 a third person, or for payment of debts; as then, the period 
 at which the heir would have attained 21, had he lived, is the 
 boundary of estate. 
 
 71. What was Boraston's case? 663. 
 
 Testator directed, that the profits of his estates, in the mean 
 time until his heir became of age, should be applied to the 
 purposes of his will. The heir died before 21, but the 
 
 1
 
 LAW TRACTS. S7 I 
 
 executors were held entitled for the period at which the heir 
 would have attained 21. 
 
 75. What was held, where the devise was to the testator's widow, till 
 
 his son was 21, and the son died at the age of 13 ? 664. 
 
 That the widow's estate then determined ; and though she 
 held over for some years after, yet that she was to account for 
 the mesne profits to the heir's heir. The widow was execu- 
 trix, and there was no want of assets. 
 
 76. Devise of lands to the testator's son (a minor), with a direction 
 
 that his wife shall take the profits until his son comes of age, 
 for the son's maintainance and education — what estate does the 
 wife take ? 665. 
 
 An estate which determines by the cessation of the son's 
 minority, whether by death or effluxion of time. 
 
 CHAP. IX. 
 
 OF ESTATES AT WILL. 
 
 1 . What is an estate at will ? 665, 666. 
 
 An estate holden at the will of both the lessor and lessee, 
 conferring therefore no durable interest. It must be at the 
 will of both parties, for if by special agreement it is to be at 
 the will of one, the law by implication says it shall be at the 
 will of the other also. 
 
 2. When a lessee enters to receive livery of seisin, what estate has 
 
 he before livery given ? 666. 
 
 An estate at will. 
 
 3. Are not copyholds generally classed under this description of 
 
 estate ? 667. 
 
 Yes ; but then the will is not absolute, but regulated by 
 the customs of the manor. 
 
 1. Lease for years determinable at will, gives what estate ? 667. 
 
 An estate for years, and not at will, though it have a con- 
 dition dependent on act of volition.
 
 •>7ii I-AW TRACTS. 
 
 5. May there at this (hiy be u domise at will ? 668. 
 Yes; clearly. 
 
 G. liow is a general demise construed? 668. 
 
 Not as conferring an estate at will, but an estate for one 
 year, and after, from year to year at the election of the 
 parties ; which election is determined by either party giving 
 the other six months notice to quit. 
 
 7. What if the lessor determines his will after the land is sown, and 
 before it is reaped ? 669. 
 
 The lessee is entitled to the produce of all annual seeds 
 sown up to the end of the next proper season for gathering 
 the same. 
 
 S. What if the lessee determine his will between the rent days ? 
 669. 
 
 He must make up his rent to the next day of payment. 
 
 9. What is the consequence of the death of either party? 669. 
 
 The estate then determines, for death deprives the party 
 of his will. 
 
 10. In what two ways may an estate at will be determined? 670. 
 
 1 . By express communication ; and 
 
 2. By implication. 
 
 11. What is a virtual determination on the part of the lessor ? 670. 
 
 The exercise of any act of ownership over the land, as his 
 entry, which the law will presume to be legal, rather than that 
 he intended to commit a trespass. So, if he make a lease, 
 or empower another to give seisin. 
 
 1^. And what on the part of the lessee ? 671. 
 
 Any act to the prejudice of the lessor, as cutting timber, 
 prostrating houses, assigning over, &c. 
 
 l.S. Is impounding a distress on the premises, a determination of the 
 lessor's will ? 67 1 . 
 
 It was formerly considered so, but it is otherwise now.
 
 LAW TRACTS. 273 
 
 CHAP. X. 
 
 OF ESTATES BY SUFFERANCE. 
 
 Who is a tenant by sufferance ? 673, 674. 
 
 He who enters by right ; and after his right to hold has 
 ceased, still holds over : the law pi'esumes that he so continues 
 possession with the permission of the owner of the land, and 
 he is called a tenant at sufferance, and will not be evicted till 
 it is proved in due course of law, that the retention of posses- 
 sion is in opposition to the will of the rightful owner. 
 
 THE END OF NO. VIII. 
 
 2 K
 
 LAW TRACTS. 
 
 No. IX. 
 
 A COLLECTION OF CASES 
 
 THE QUESTION, 
 
 WHETHER TRUSTEES TAKE THE LEGAL ESTATE OR NOT ? 
 
 Sect. I. Introductory remarks, ivith ohserrations on devises to and 
 to the use of trustees. 
 
 II. Of the distinction betioeen trusts to pay over the rents and 
 
 profits, and trusts to pei*mit another person to receive 
 them ; also of trusts in favour of married women. 
 
 III. Of trusts during minoritij^ and for payment of debts. 
 
 IV. Of trusts to sell, convey, repair, let, Sfc. ; and for pur- 
 
 poses which require the fee. 
 
 V. Recapitulation, and general rules.
 
 :*'(> LAW TRACTS. 
 
 SECTION I. 
 
 Introductory Remarks, uif/t Observations on Devises to and to the 
 
 nse of Trustees. 
 
 The continual recurrence of this question in practice, cannot fail 
 to render acceptable a collection of all the authorities on the subject. 
 The question is one which is decided entirely on the intention ; and 
 it is essential to set forth the cases at some length, in order to show 
 how the Courts have extracted that intention from multitudinous 
 circumstances. It is therefore proposed, in treating this head of 
 law, to run through the cases in detail, and then to deduce such 
 general rules from the whole, as the subject shall suggest. 
 
 It has been a matter of much speculation among the learned, whe- 
 ther the Statute of Uses can be held to apply to wills, when wills as 
 they now exist, were not allowed at the time the Statute of Uses was 
 passed. Lord Coke considers it as not at all uncommon for a statute, 
 made in after times, to fall within the scope and meaning of an act 
 made in time before ; and it is now generally undei'stood, that a 
 devise is within the Statute of Uses, if the intention of the testator 
 requires that it should be. Thus, a devise to the use of A is good, 
 although there is no seisin to support it ; and a devise to A, to the 
 use of B, has been held to transfer the legal estate to the latter, 
 although the former died in the testator's lifetime, whereby the 
 devise became lapsed as to the seisin supporting the use.' But, if 
 an express use be limited to the devisee, a subsequent statutable use 
 cannot be mounted thereupon, as that would be a use upon a use, 
 and so a mere trust. 
 
 It is hence to be remembered as a leading rule, governing all cases 
 giving rise to this question, that a devise to and to the nse of trustees, 
 or to trustees to their use, will give them the legal estate ; and con- 
 sequently, that all subsequent limitations over are mere trusts. Thus, 
 in a case before Lord Hardwicke, the devise was to trustees and their 
 heirs, to the use of them and their heirs upon several trusts : His 
 Lordship held, that the trustees took the legal estate in fee. 2 On 
 this point, the question has arisen more frequently in deeds than in 
 
 > 3 Atk. 408 ; 3 Bro. C. C. 30. 
 
 2 Hopkins v. Hopkins, I Atk. 581 ; Marwood v. OaiTell, Ca. temp. Hard. 91.
 
 LAW TRACTS. "rii i 
 
 wills : but there can be no doubt, that a rule so clearly established 
 as to assurances inter vivos, will be fully adopted in dispositions 
 by will. 
 
 Thus, where lands were conveyed in consideration of marriage, to 
 certain trustees and their heirs, to the use of them and their heirs, to 
 the use of A B for life, with remainders over, — it was held, that the 
 legal estate in fee was in the trustees.3 So, where lands were con- 
 veyed to trustees and their heirs, ^o the use of them and their heirs, in 
 trust to raise money ; and, after raising and paying the same, in trust 
 to conveij the said lands to J. S., — it was held, that the trustees took 
 the legal estate in fee."* In like manner, where lands were conveyed 
 to T. B. and his heirs, to the use of him and his heirs, in trust to per- 
 mit A to receive the rents and profits, Lord Talbot held, that the 
 use was executed in the trustee ; and that whatever came afterwards 
 was only an equitable interest.^ We shall see by subsequent 
 cases, that if this trust — to permit and suffer another to receive the 
 rents — had been contained in a will, and no express use had been 
 declared to the trustee, that the person directed to receive the rents 
 would have taken the legal estate, and the trustee would have taken 
 notiiing, except a momentary seisin, which wovdd have been trans- 
 ferred to the cestuis que trust by the Statute of Uses the instant the 
 testator died. Again, where A bargained and sold lands to B and 
 his heirs, to the use of C for life, — it was resolved, that B took the 
 legal fee, and that C took a mere trust.^ This is evident from the 
 nature of the instrument employed. These authorities, it is submit- 
 ted, establish the principle, that under a devise to and to the use of 
 trustees, or " to trustees and their heirs, to the use of them and their 
 heirs," the statute executes the legal estate in the trustees, and 
 then all limitations beyond must be mere trusts. The acknowledged 
 operation of the statute is also in favour of this construction. So 
 that, upon principle and authoi-ity, we are warranted in treating 
 this as a cardinal point, in the construction of wills giving rise to this 
 question. It must, however, be remembered, that the intention is 
 the primary object ; and if the above rule clashes with the manifest 
 intention, it must of course yield. 
 
 As, if a testator devise lands to trustees and their heirs, to the use 
 of them and their heirs, in trust to raise money to pay his debts, and 
 
 3 Whetsone v. Bury, 2 P. Wms. 146. 
 
 4 Wagstaff V. Wagstaff, 2 P. Wms. 258. 
 
 •'• Attorney General v. Scott, Ca. temp. Talb. 138. 
 ^ Tyrrell's case, J)yer, 155.
 
 '278 l.AW TKAC'T:?. 
 
 siil)jcct tlicreto to the use of A for life, w itli vcmaiiulcr to the use of 
 the same trustees and their heirs during the life of J, in trust to pre- 
 serve contingent remainders, uith remainder to his first and other 
 sons in tail, &c. — it is manifest, that the testator did not, by the 
 first devise, mean to give the entire legal estate in fee to the trustees, 
 farther than was necessary for the payment of his debts, because he 
 has afterwards given them a less estate ; and therefore the construc- 
 tion in this case is, that, subject to the payment of debts, A takes 
 the legal estate for life, with a legal remainder to his issue in tail 
 as purchasers. 
 
 But where a fine was acknowledged to certain trustees and their 
 heirs, to the use of a married woman for life, with remainder to the 
 use of the same trustees and their heirs, in trust to support contingent 
 remainders, with remainder over, so that the estate of the trustees 
 was not confined to the life of the tenant for life ; — it was certified 
 by the Court of King's Bench, that the trustees took the legal estate 
 in fee in remainder ; and that all the subsequent limitations were 
 mei*e trusts in equity." Whether such a construction would prevail 
 on a will, has not been expressly decided ; but at this day, when the 
 Courts have shown a decided inclination to cut down the estate of 
 the trustees, to an estate that will be ju.st sufficient to answer the bare 
 purposes of the trusts, it is conceived that it would not, if any trifling 
 circumstance could be gleaned from the whole will indicative of 
 an intention that the trustees should take no estate after the death 
 of the tenant for life. 
 
 SECTION II. 
 
 Of the distinction betiveen trusts to pay over rents and profits, and 
 trusts to permit another person to receive them ; and of trusts in 
 favour of married women. 
 
 The distinction between trusts to pay over rents and profits, and 
 trusts to permit another person to receive them, seems to have been 
 introduced more by chance than design. A more absurd distinc- 
 tion, and one less dependent on sound reason, could scarcely be 
 conceived ; but it is useless to speculate on its propriety, now that it 
 is so clearly and permanently established. The distinction is this — If a 
 
 Venabled u. Morris, 7T.R.342,438 : etvideBnteXtxv. Allingtou, 1 Bro.C.C.72.
 
 LAW TRACTS. 279 
 
 testator devises an estate to A B, in trust to jJermit CD to receive and 
 take the rents and profits : C D takes the legal estate, and A B takes 
 nothing ; or, more technically speaking, A B takes the seisin, and 
 C D the use, which the Statute of Uses immediately executes in C D, 
 that is, transfers the seisin and estate of A B to C D, as fully and 
 effectually as A B could have done by an actual conveyance. But 
 if the devise be to A B, in trust to ^^av/ over the rents and profits to 
 C D, A B is considered to have an active trust, and a duty to per- 
 form ; and therefore he is held to take the legal estate, to enable 
 him to pay over the rents ; and consequently C D takes only a trust 
 or equitable estate. 
 
 " Very soon after the Statute of Uses," says Mr. Sanders, *' an 
 opinion was delivered, that though a feoffment in fee, to the use of 
 the feoffor for life, and after his decease, that T. N. shall take the 
 profits, be an use executed in T. N. ; yet if it had been, that after 
 his death the feoffees should have received the profits, and pay them 
 over to T. N., this would not be executed by the statute, because 
 the legal estate must be in the feoffees, to enable them to pay over 
 the profits :" citing 36 Hen. 8. ; Bro. Feoff. Uses, 52 ; B. N. C. 282. 
 At the time these cases were decided, wills were not sanctioned by 
 the legislature : and it was not till many years afterwards, that this 
 rule was applied to devises. In the first case, a devise to one person 
 in trust, to permit another to receive the rents, was held to vest 
 the legal estate in the trustee ; but that case was soon afterwards 
 overruled ; and the distinction has been svibsequently fixed upon the 
 terms above described. The cases are as follow : — 
 
 Biirchett v. Durdant, 2 Vent. 311, 1690. A testator devised lands 
 at Cobham, to Higden and his heirs during the life of Robert Dur- 
 dant, in trust to jjermit and suffer R. Durdant, during his life, to 
 have and receive the rents and profits thereof, he the said R. Dur- 
 dant committing no waste ; and after the decease of R. Durdant, 
 the testator devised the said lands unto the heirs males of the body 
 of the said R. Durdant, then living, and to such other heirs, male 
 and female, as he should thereafter happen to have of his body ; and 
 for want of such heirs, then to the use and behoof of his cousin 
 Gideon Durdant, and the heirs of his body, with remainders over. 
 The first point spoken to, was, whether the estate was executed in 
 R. Durdant by the Statute of Uses : for, if so, the limitation to his 
 heirs would coalesce with his life estate, and give him an estate tail, 
 and so the fine which he had levied would be good ; and it was con- 
 tended, that the legal estate was vested in R. Durdant by the statute, 
 because he was restrained from committing waste, which showed that
 
 «80 LAW TRACTS. 
 
 he was iiitciuKd to takt' some estate, else he could not commit waste. 
 The Court, liowever, overruled this objection, and resolved it to be 
 only a trust in Kobert Durdant ; for the words are, that Higden 
 shoidd permit him to take the profits — which proved that the estate 
 was to remain in 1 li-^^den : and for the restaint of waste, it was proper ; 
 for Hidden was to permit Durdant to have the possession; but the 
 testator would not have him to commit waste or spoil. 
 
 The latter part of this judgment is not very conclusive; but it 
 seems consistent to hold, that a trust to j)ermit a person to receive 
 the rents, should give the trustee the legal estate, as otherwise his 
 permission (which is an act of volition) is rendered nugatory. The 
 next case, however, has treated the matter differently. 
 
 Broughton v. Lav.gley, 2 Salk. G78; s. c. 2 Ld. Raym. 873, 1701. 
 One seised of lands in fee, devised them to trustees and their heirs, 
 to the intent and purpose to permit A to receive the rents and profits 
 for his life ; and afterwards, that the trustees should stand seised of 
 the premises, to the use of the heirs of the body of A, with a proviso 
 that A, with the consent of his trustees, might make a jointure for 
 his wife ; and the question was, whether A had an estate tail executed 
 in him or not. It was adjudged that he had ; and Holt C. J., deliver- 
 ing the judgment of the Court, gave these as his reasons : 1st. That 
 this would have been a plain trust at common law ; and what at com- 
 mon law is a trust, is executed by the statute, which mentions the 
 word trust as well as use ; that the case in 2 Vent. 312, (Burchett r. 
 Durdant,) was ?ioi law ; that the change of expression in the above 
 case, by using the word permit in the first clause, which contained 
 words of trust, and afterwards making mention of a use, was imma- 
 terial, inasmuch as trusts at connnon law and uses were equally exe- 
 cuted by the statute ; and that a power to make a jointure does not 
 necessarily exclude an estate tail, or an intent to give it ; because 
 the tenant in tail, without discontinuing or barring the entail, cannot 
 make a jointure ; and so this power had its use. 
 
 In Wilson v. Silvester, (2 T. R. 444,) a case more fully noticed in 
 the sequel, — it was held, that where a trustee is directed to pay over 
 the rents and profits, he must necessarily receive them ; and it will 
 readily occur, that a trustee cannot enforce the perception of rents 
 and profits without a power of distress, which requires the legal 
 estate ; and for this purpose, the legal estate is held to be vested in 
 the trustee. 
 
 But if an estate be devised to A B, in trust to permit a married 
 irovian to receive the rents and profits, then, as the inference is, that 
 she is intended to take the rents and profits to her own peculiar use.
 
 LAW TRACTS. 281 
 
 (which she could not do, if the legal estate were vested in her, since 
 her husband would then be entitled to the rents and profits during 
 her Vife jure mariti,) the legal interest in the property is held to be 
 vested in the trustees, in trust for the wife. This rule, with its 
 several exceptions and quahfications, will appear by the following 
 cases. 
 
 Nevil V. Saunders, 1 Vern. 415, 1686. In this case lands v/ere given 
 by will to trustees and their heirs, in trust for Anne, the defendant's 
 wife, her heirs and assigns ; and that the trustees should from time 
 to time i^ay and dispose of the rents and profits to the said Anne, or 
 to such person or persons as she, by any writing under her hand, as 
 well during her coverture as being sole, should order or appoint, 
 without the intermeddlhig of her husband, whom he willed should 
 have no benefit therein ; and as to the inheritance of the premises, 
 in trust for such person or persons, and for such estate and estates, 
 as the said Anne, by any writing purporting to be her will, or other 
 writing under her hand and seal, in the presence of two or more 
 credible witnesses, as well during coverture as being sole, should 
 give, limit, and appoint ; and for want of such appointment, in tru«t 
 for her, her heirs and assigns. The question was, whether this was 
 an use executed by the statute, or a bare trust for the wife. The 
 Court of Chancery held it to be a trust only, and not an use executed 
 by the statute. 
 
 In the next case, the devise was to trustees and their heirs, in trust 
 to pay annuities and legacies ; and afterwards in trust for the separate 
 use of a married woman for life ; and after, the trustees were directed 
 to stand seised to the use of other persons ; they were held to take the 
 legal estate for the life of the married woman only. 
 
 Jones V. Lord Say and Sele, 3 Bro. P. C. 113 ; 8 Vin. Abr. 262. 
 Mrs. Ellis, by will, devised all her lands, tenements, and here- 
 ditaments, to certain trustees and their heirs, in trust to pay several 
 legacies and annuities, and then to pay the surplus of the rents and 
 profits to Cecil Fiennes during her life, for her separate use, or as 
 she should direct ; and after her death, the testatrix directed that 
 her trustees should stand seised of the said hereditaments, to the use 
 of the heirs of the body of the said Cecil Fiermes, with remainders 
 over. Upon this W'ill a question arose, whether the trustees took 
 an estate in fee, or an estate for the life of the said Cecil Fiennes. 
 Lord Chancellor King was of opinion, that by the words of the will, 
 the use was executed in the trustees and their heirs, during the life
 
 X'^ri LA^V IHACTS, 
 
 of Cecil Fiemies ; and tlmt she had oidy a trust in the surplus of tiie 
 rents and profits after payment of the annuities during her Hfe ; but 
 by the subsequent words, viz. "that the trustees should stand seised 
 to the use of the heirs of the body of Cecil Fiennes, &c., subject to 
 the ])aynient of the annuities," the use was executed in the persons 
 entitled to take by virtue thereof, chargeable with the payment of 
 the annuities ; and therefore, there being only a trust estate in the 
 ancestor, and an use executed in the heirs of her body, those diffe- 
 rent interests could not unite, so as to create an estate tail by opera- 
 tion of law in the ancestor. The decree was accordingly. 
 
 In this case, the trust being to pay the rents to the cestui que 
 trust, there could be no doubt that the trustees took some portion 
 of the legal estate ; but the question was, whether they took the fee 
 simple, or a fee determinable with the necessity of their trust, viz. 
 the life of the wife, — and it M-^as held they did ; but if there are 
 several femes covert in remainder, the trustees, it seems, must neces- 
 sarily take the fee, as it cannot, it is said, be then easily ascertained 
 when their estate is to cease. This case, however, admits of some 
 doubt at the present day, as the temper of the courts is now to 
 curtail the estate of the trustees in all cases where any trifling cir- 
 cumstances will enable them to do so ; and here, the trustees might 
 have been held to have a base fee determinable with the deaths of 
 all the femes covert ; but the difficulty was, that the femes covert 
 were not to take seriatim. Nevertheless, the legal estate might 
 have been given to the trustees for the life of the first tenant for life, 
 with remainder to his issue in tail, with remainder to the trustees 
 during the life of the second tenant for life, and so on. The Court 
 of King's Bench, however, seemed to have considered this to be an 
 inconvenient construction, and decided otherwise. 
 
 Harton v. Harton, 7 T. R. 652, 1798. S. Jacques devised copy- 
 hold lands (duly surrendered to the use of his will,) to two trustees 
 and their heirs, upon trust to permit and suffer his niece Bridget, 
 then the wife of William Harton, to receive and take the rents and 
 profits thereof during her life, for her own sole and separate use ; 
 and after her decease, then to the use of the first son of her body, 
 and the heirs of his body lawfully issuing ; and for want of such 
 issue, then to the use of the second son, &c. ; and in default of issue 
 of his said niece Bridget, upon trust to permit and suffer his niece 
 Anna Maria, then the wife of J. ilogard, to take the rents and pro- 
 fits of all the said premises during her life, for her separate use, in 
 like maimer, and with remainders to her issue ; and in default of such
 
 L,\W TKACTS. 283 
 
 issue, upon further trust to permit and suffer his niece Sarah Jacques, 
 spinster, to receive and take tlie rents and profits of the said pre- 
 mises during her Hfe, for her sole and separate use, in hke manner, 
 with remainders over. Lord Kenyon, in delivering his opinion, 
 said, " Whether this be a use executed in the trustees or not, must 
 depend upon the intention of the devisor, w^hich is to be collected 
 fi-om the will. This provision, it appears, was made in order to 
 secure to the several femes covert, a separate allowance free from 
 the control of their husbands, to effectuate vi^hich, it is essentially 
 necessary that the trustees should take the estate with the use 
 executed, otherwise the husband of each taker would be entitled to 
 receive the profits, and so defeat the very object the devisor had in 
 view." The other Judges concurred ; and Lawrence J. mentioned 
 the case of Jones v. Lord Say and Sele, (1 Eq. Ca. Abr. 38,3,) 
 which Lord Kenyon said, was a case by itself. The best report of 
 it was in Viner's Abr. (vol. 8, 262) ; and it was recognized to be law by 
 Lord Hardwicke, in Bagshaw v. Spencer : {vide 1 Ves. 144.) The 
 following certificate was afterwards sent to the Lord Chancellor: — 
 "We are of opinion that the legal estate, by way of use executed in 
 fee simple, vested in the trustees — ^that construction being necessary 
 (as we conceived) togive legal effect to the testator's intention, to 
 secure the beneficial interest to the separate use of the several femes 
 covert." 
 
 In another case, a devise to trustees and their heirs, in trust to 
 receive and pay the rents and profits to a married woman for life — • 
 was held to give the trustees the legal estate for the life of the mar- 
 ried woman only. 
 
 Doe dem. Hallen v. Ironmonger, 3 East, 533, 1803. In this case 
 the devise was to A B, his heirs and assigns for ever, vipon trust 
 that he, his heirs and assigns, should and might receive the rents, 
 issues, and profits of all the testator's estates, and pay and apply the 
 same to and for the maintenance and support of his niece Sarah 
 Hallen, and the issue of her body during her natural life; and from 
 and after her decease, then upon trust for the use of the heirs of the 
 body of his said niece Sarah, their heirs and assigns for ever, with- 
 out any respect to be had or made in regard to seniority of age, or 
 priority of birth. As the trustee was to pay over the rents and 
 profits, there could be no doubt in this case that the use was executed 
 in him ; and that point was admitted both by the counsel and the 
 Court; and the only question was, whether the children of Sarah 
 were to take as joint tenants, or seriathn. Lord Ellenborough held,
 
 '.*Sl L^^V TKACTb. 
 
 that Sarah took an estate for life only ; and that tlie heirs of her 
 body took as purchasers, and not as joint tenants. 
 
 Roh'in.son v. (iir(nj, 9 East, 1, 1807. Margaret Robinson having 
 (Miterod into articles of agreement, for the purchase of certain pre- 
 mises, devised the same to Lady Ann Middleton, her heirs and assigns, 
 ■ipon trust to pay the rents and profits thereof to her three daughters 
 (»ne of them Ijeing married), and the survivor of them, for their 
 .ives, share and share alike ; and after their decease, in trust for all 
 ind every the child and children of her three daughters, who should 
 be living at the death of the survivor of them, as tenants in common ; 
 hut if all her daughters should die without leaving any issue, then, 
 iftcr the decease of the survivor, in trust for her grandson William 
 Robinson, in fee, who was her heir-at-law. The testatrix died on 
 24:i\\ March, 1762, leaving the plaintiff William Robinson, her 
 grandson and heir-at-law, and leaving also her said three daughters 
 her surviving. Lady Ann Middleton declined to act in the trusts of 
 the will, and having renounced the execution thereof, the premises 
 were, by indentures of lease and release, conveyed unto the said 
 >Villiam Robinson, his heirs and assigns, to the uses upon the trusts, 
 and for the intents and purposes declared concerning the same, in 
 the will of the said testatrix Margaret Robinson. On the first 
 argument of this case, it was admitted, that the use was executed in 
 the trustee William Robinson, during the lives of the three daugh- 
 ters, Elizabeth, Ann, and Margaret, he being directed by the will, 
 to pay the rents and profits into the hands of the daughters, and the 
 survivor of them ; one of whom was a married woman, which could 
 not be clone, unless the trustee were entitled first to receive and take 
 such profits, which carried the legal estate, according to Jones v. 
 Lord Say and Sele, 8 Vin. Abr. 2G2 — 6 ; Bagshaw v. Spencer, 1 
 V'es. 14't; Harton v. Ilarton, 7 T. R. 654; and Doe v. Simpson, 
 ri East, 171, infra. And by the certificate returned, the Judges 
 certified their opinion to be, that under the will, and the indenture 
 of lease and release, the three daughters of the testatrix, Elizabeth, 
 Anne, and Margaret, did not take any legal estate in the premises ; 
 but that William Robinson, the releasee in the indentures of lease 
 and release, took an estate for the lives of the said three daughters, 
 and the life of the survivor of them ; and that such of their children 
 a^ should be living at the death of the survivor of the said daughters 
 ■)f the testatrix would take estates in fee as tenants in common. 
 
 When the trust is to pay, and also to permit the cestui que trust 
 to receive the rents and profits, the permission to receive coming
 
 LAW TUACTS. '2H5 
 
 last, supersedes the inference from the words ' to pay,' and gives tlie 
 legal estate to the person who is to receive the rents. 
 
 Doe d. Leicester v. Biggs, 2 Taunt. 109, 1809. J. Cole being 
 seised in fee of the premises in question, devised them to two trustees, 
 and the survivor of them, to hold to them and the survivor, and his 
 heirs and assigns, upon trust to pa^/ unto, or permit and suffer his 
 niece, Ann Cole, to have, receive, and take the rents, issues, and pro- 
 fits thereof for her natural life, with I'emainders over. The question 
 was, whether tlie trustees took the legal estate under this will. It 
 was contended, that they took the legal estate for the life of the 
 niece at least ; for that the use of both phrases was merely to give 
 the trustees a discretion, whether they would let the cestui que trust 
 receive the rents, or would themselves receive tliem ; and in order 
 to possess that discretion, the trustees must necessarily have the 
 legal estate in them. The discretion must be lodged in some one ; 
 and in whom could it be, unless in the trustees? — and this case [the 
 husband and wife being separated,] required that the trustee should 
 have the legal estate vested in him ; for he here had as many duties 
 to perform as were cast on the trustees in any of the cases cited. 
 
 After time taken to consider, judgment was pronounced by Mans- 
 field C. J., as follows: " This case might be argued and considered 
 for ever, without advancing it at all in law, reason, or precedent. 
 But as it happens, in this will, the last words are, " permit and 
 suffer," which give the cestui que trust a legal estate ; and the general 
 rule is, that if there be a repugnancy, the first words in a deed, and 
 the last words in a will, shall prevail ; and consequently, for want of 
 a better reason, we are forced to say that we think this will gives the 
 legal estate to the party beneficially interested. The rule for a new 
 trial must therefore be discharged." 
 
 In another case, the trustee was held to take a base fee, determin- 
 able on the death of the cestui que trust, a feme covert. 
 
 Doe V. Barthrop, 5 Taunt. 382, 1814. A testatrix holding copy- 
 hold premises of the manor of Stepney, devised the same, after sur- 
 render, to the use of her will, to two trustees and their heirs, in trust 
 to permit and suffer Mary Ann Shipwash, or her assigns, to have, 
 use, occupy, and enjoy the same, or to pay to, or permit and suffer 
 her, or her assigns, to receive and take the rents and profits thereof, 
 during her natural life, to and for her own sole and separate use ; 
 and not to be in anywise subject to the debts, &c. of any husband : 
 and subject to such estate and interest of the said M. A. Shipwash,
 
 28G LAW TRACTS. 
 
 the testatrix devised the premises unto such person or persons, for 
 such estate or estates, use or uses, and in such parts, shares, and 
 proportions, manner and form, and at such time or times as M. A. 
 Shipwash should, in and by her last will and testament, attested by 
 three witnesses, give, devise, direct, limit, or appoint ; and in default 
 of ajjpointment, to the right heirs of M. A. Shipwash. M. A. Ship- 
 wash, by her will, devised the premises to the lessor of the plaintift' 
 in fee; but the defendant, who had procured admission on some title, 
 contended, that the legal estate in fee was outstanding in the trus- 
 tees, although M. A. Shipwash was dead. 
 
 Heath J. delivered the opinion of the Court. — It is a general rule, 
 that the legal estate in the trustees shall be carried only so far as is 
 necessary to effectuate the several intentions of the will. In this case, 
 the trust is suflS-itn ly executed by limiting to the trustees a base 
 fee, determinable with the life of M. A. Shipwash. The legal estate, 
 therefore, goes over from them, when that estate determines. It is 
 admitted that it would be so, if the devise were to the trustees and 
 their heirs, during the life of M. A. Shipwash ; and it makes no 
 difference whether those words are there expressed or omitted. The 
 question was raised, whether there was a springing use : this is no 
 springing use ; if it were, the legal estate must remain in the trus- 
 tees, that the use might spring. As to the point that there was no 
 admission of M. A. Shipwash, nor surrender by the trustees : the 
 admission of the tenant for life, is the admission of him in the 
 remainder. — Chambers J. was of opinion, that it was only an estate 
 for life ; but whether it were an estate for life, or an estate in fee, 
 the consequence was the same. — Postea to the plaintiff. 
 
 The next case seems at variance with the preceding ; but being 
 a certificate, the exact reasons of the adjudication cannot be ascer- 
 tained. 
 
 Wollen v. Andrews, 2 Bing. 126,' 1824. S. Andrews devised his 
 real estates to P. Cox and his heirs, upon trust to permit his six 
 children to take one sixth each of the rents thereof, during the term 
 of their natural life and lives ; and from and immediately after their 
 respective deceases, upon further trust to permit all and singular the 
 child or children of such of his sons or daughters so dying, to take 
 the rents of such share or shares of him, her, or them so dying, in 
 ecjual parts, shares, and proportions. The Court of Common Pleas 
 held, that P. Cox took the legal estate. 
 
 1 J:^.C. 2 LawJourn. (".P. 115.
 
 LAW TRACTS. ::^8T 
 
 SECTION III. 
 
 Of Trusts during Minority, and for Payment of Debts. 
 
 As before observed, the Courts at the present day endeavour to con- 
 fine the estate of the trustees, to the partial purpose for which it is 
 clear the testator intended the trustees should take an active trust ; 
 from the time the trust becomes passive, the object is to resort to 
 such a construction, that the estate of the trustees may then cease. 
 Thus, if a devise be to A and his heirs, in trust to pay the rents and 
 profits to the testator's son till he attains his age of 21 years, the 
 trustees are held to take a chattel interest, determinable on the son's 
 attaining 21. The foundation of this rule, is — 
 
 JBorastons case, 13 Co. 19 a ^ 1586 — where lands were devised to 
 one for eight years, and afterwards to the testator's executors for 
 performance of his will, viz. to pay his debts and legacies, till his son 
 should accomplish his full age of 21 years ; and when he should 
 attain that age, then that he should enjoy the same to him and his 
 heirs. The son died under age, — and it was held, first, that this 
 was a good devise of a term to the executors, during the son's 
 minority ; and that the interest of the executors continued till such 
 time as the son would have attained his age of 21 years, if he had lived. 
 Secondly, that the remainder was vested in the son, immediately on 
 the testator's decease ; for there was no contingency in the adverb 
 when, as it referi-ed to a thing which must of necessity happen ; and 
 a distinction was taken between a lease during minority, and a lease for 
 21 years if B (a minor) should so long live. In the first case, the 
 lessee, it was said, takes a certain interest, determinable only with 
 the period when the minor would have attained his age of 21 years, 
 (Lane, 58, 2 Vern. S5) ; and a remainder, commencing on that event, 
 would not, consequently, be contingent, but vested and good ; but 
 the determination of the second lease being subject to a contingency, 
 the remainder was also affected with uncertainty, and being then a 
 contingent remainder, it had no sufficient vested estate of freehold to 
 support it, and was therefore void in its inception. Sir J. Jekyll, how- 
 ever, made this rule entirely subservient to the intention ; and hence 
 arises the difficulty of propoimding any general rule for the ad- 
 measurement of the trustees' estate in every case. 
 
 A testator devised the lands in question to his daughter, until his 
 son should attain the age of 40 years, " hoping by that time his son 
 would have seen his folly." Sir J, Jekyll said, that '' where an
 
 '^'88 LAW TRACTS. 
 
 estate is created for a particular purpose, as for payment of debts, 
 (as in Boraston's case,) and the cestui que vie dies before tlie expi- 
 ration of the term, in aid of the honest intention of the parly, who 
 may be supposed to have computed the time, wherein the profits of 
 liis estate would be sulKcient for the discharge of his incumbrances, 
 the Courts had construed the devisor to have meant, that tlie 
 devisee or executor should have the land during the son's minority, 
 although the son may die under age ; but in all cases where no such 
 intention appeared, the estate or interest would absolutely determine 
 by the death of the party under the age specified ; and as the 
 devisor's reason for creating the particular interest in the case before 
 the Court, appeared to be, to guard his estate against the ill conduct 
 and extravagance of his son, his Honour ruled, that the particulaj- 
 estate ceased on the son's dying under the age of 40 years : Lomas 
 v. Ilolmsden, 3 P. Wms. 176; et vide Willes, 303 n. 
 
 If the only task of the trustees is to apply the rents and profits 
 to a particular purpose, till the cestui que trust is 21, they have a 
 chattel interest merely. 
 
 Trodd v. Downes, 2 Atk. 304, 1742. Adam Churcher devised all 
 his farms and lands to trustees and their assigns, for and during, 
 and until his kinsmen, Rogers and Bonny, should attain their several 
 ages of 21 years, in trust, in the mean time, to receive the rents and 
 profits for the use and benefit, and towards the maintenance of Rogers 
 and Bonny; and after they should attain their respective ages of 21 
 years, then to the said Rogers and Bonny for their natural lives, 
 without impeachment of waste ; and from and after their deceases, to 
 the use of the heirs of the said Rogers and Bonny for ever, as tenants 
 in common, and not as joint tenants. 
 
 Lord Hardwicke was of opinion, that the trustees took nothing at 
 all in the inheritance, but a cliattel interest till the cestui que trust 
 attained the age of 21 years, or the survivor of them attained that 
 age ; and that the remainder was of the legal estate, and not of 
 a trust. 
 
 In the next case, it was in effect held, that the trustees took a 
 base fee, the limitation being to them and their heirs, till the testa- 
 tor's son attained 21, or had issue, and then to the son in tail. 
 
 Brownsword v. Edivards, 2 Ves. 243, 1750. Francis Brown- 
 sword devised the premises in question to two persons and their heirs, 
 in trust to receive the rents and profits thereof, until that little boy, 
 commonly called John Brownsword, should attain his age of 21
 
 LAW TRACTS. 289 
 
 years, — whicli would be on the 14th of October, 1746, — in trust 
 in the mean time, and from time to time to place the same out at 
 interest, for the improvement of the estate ; and if he should live 
 to attain the said age of 21, or have issue, then to the said John 
 Brownsword, and the heirs of his body ; but if the said John Brown- 
 sword should happen to die before the age of 21, and without issue, 
 then the testator devised the estate to the same trustees, in trust till 
 that little girl, commonly called Sarah Brownsword, should attain 
 the age of 21 years ; but if she should happen to die under 21, and 
 without issue, then to other collateral branches of his family ; and 
 for want of such issue, to his own right heirs for ever. John Brown- 
 sword attained his age of 21 years, and died without issue, having 
 devised all his estates, real and personal, to his wife, the present 
 plaintiff, who construed the will as giving John Brownsword an 
 estate tail, on his attaining 21 ; but giving no remainder over, in the 
 event of his death without issue ; whereby John Brownsword, as 
 heir-at-law of his father, took the reversion in fee, which he devised 
 by his will to the plaintiff. The bill charged, that John Brown- 
 sword was the legitimate son of the testator by the defendant Anne 
 Edwards, and prayed that the said defendant might discover, whe- 
 ther she was not lawfully married to the testator ; and whether she 
 had not issue by him the said two children. 
 
 Lord Hardwicke — " It has been argued, that the testator has 
 given nothing over, but on the contingency of John's dying without 
 issue under age. Consider what necessity there is from the words, 
 to construe it in that manner, which would be to defeat his intent. 
 Having first given the tvhole legal fee to trustees and their heirs, he 
 did not intend that either of these two children should have any thing 
 vested till 21, or their having issue, and then to have an estate tail ; 
 consequently, as soon as John attained 21, or had issue, though he 
 died before 21, that defeated and determined the estate in law, 
 given to the trustees, and vested a fee tail in the son. He attained 
 21, and therefore had an estate tail ; as he would, if he had died 
 before 21, having had issue." — His Lordship did not state distinctly 
 what estate the trustees took, further than as above mentioned ; but 
 it is submitted, that the trustees took a base fee, till the son attained 
 21, or had issue before that period ; or in case of his death under 
 21, without issue, till the daughter attained 21, or had issue ; but on 
 the son's attaining 21, or having issue, then to the son in tail, with 
 remainder to the trustees in fee, till the daughter attained 21, or had 
 issue before that period ; then to the daughter in tail, with ultimate 
 remainder to the testator's own right heirs. 
 
 2 M
 
 ^iK) LAW THACTS. 
 
 In this case it v ill be observed, that the trustees had an active 
 duty to ])errorni, vi/. the improvement of the estate, which required 
 tlie absolute ownersliip as long as their trust continued. If the trust 
 had been simply to apply the rents for the maintenance of the infants 
 during their minorities, they would not have refjuired the legal fee 
 for any purpose, except that of distress ; and for this purpose, the 
 courts have manufactured a new estate, which they call a chattel 
 interest, although it is hereditary. The exact definition of this estate 
 is not easily determined. It is similar to the interest of a judgment 
 creditor under an elegit ; but it differs from it in that it descends 
 to heirs : — so at least it is presently submitted. It is certain, that it 
 confers a legal ownership as long as it lasts, and it may be treated as 
 a particular estate supporting a remainder. — The following cases will 
 more fully develope its properties. 
 
 Goodtitle dem. Hayward v. Whibley, 1 Burr. 2L^8-9, 1757. 
 R. P. devised the lands in question to two trustees, and the sur- 
 vivor of them, and the heirs of such survivor, " in trust that they and 
 the survivor of them, his heirs and assigns, should lay out, employ, 
 and bestow the rents and profits of the devised premises, for the 
 maintenance, education, bringing up, and putting forth into the 
 world, of Thomas and John Hayward, during their minorities ; and 
 when and as they should respectively attain their ages of 21, then to 
 the use and behoof of the said Thomas and John Hayward, and 
 their heirs equally : and appointed the said two trustees his execu- 
 tors. Lord Mansfield — " Where an absolute property is given, 
 and a particular interest given in the mean time, as, until the devisee 
 shall come of age ; and when he shall come of age, then to him, &c. ; 
 the rule is, that that shall not operate as a condition precedent ; but 
 as a description of the time wlien the remainder-man is to take in 
 possession: Boraston's case, 3 Co. 21. Here, upon the reason of 
 the thing, the infant is the object of the testator's bounty ; and the 
 testator does not mean to deprive him of it, in any event. Now sup- 
 pose, that this object of the testator's bounty marries, and dies before 
 his age of 21, leaving no children, could the testator intend, in such 
 an event, to disinherit him ? Certainly not. And as to the testator's 
 heir-at-law, he is only to take what the testator has not devised 
 away. But in the present case, the testator does not except any 
 thing out of the interest he has given to his nephews ; he only makes 
 a trust, to be executed for their benefit, and devises nothing for the 
 benefit of the trustees, who are also his executors. And this is only 
 a chattel interest in them, which cannot last 21 yi^ars, on the rule in
 
 LAW TKAt'TS. Sf)l 
 
 Matthew Manning's case, 8 Co. 95, h. Here is, (at the utmost) by 
 this devise to the trustees, only an exception out of the absolute 
 property given to the nephews." — Therefore, upon the whole, his 
 Lordship held, that the legal estate in fee was given immediately to 
 the two nephews, with a trust to be executed during their minorities: 
 in other words, that the trustees took the legal estate during the 
 minorities of the nephews, (which being for a time certain, could not 
 be an estate of freehold ; and was therefore of the only other deno- 
 mination, a chattel or a term for years,) with vested remainders to 
 the nephews in fee. 
 
 A similar decision will be found in Doe dern. Wheedon v. Lea, 
 o T. R. 41, where the devise was to trustees and their heirs, till A 
 should attain the age of 24 years ; and ivhen he should attain that 
 age, then to him in fee. It was held, that A took the legal estate 
 immediately on the testator's death, although he died before 24 ; and 
 therefore that it descended to, and was then in his heir-at-law. 
 
 So in a late case, the trustees were held to have a chattel interest, 
 where they had simply to execute a trust during minority. 
 
 Doe V. Timmins, 1 Barn. & Aid. 530, 1818. A testator devised 
 to his son-in-law all his estates, in trust to pay thereout a weekly 
 stipend to his widow, and subject thereto in trust for his grandson, 
 till he arrived at the age of 21 years ^, then the testator's will was, 
 that his grandson should be put into possession of the above estates, 
 the same to be at his own disposal. The Court was of opinion, that 
 the estates remained in the trustee, only till the grandson attained his 
 age of 21 ; and he having attained that age, took the legal estate in 
 fee, subject to the above weekly stipend. — The Court, it is presumed, 
 did not mean to adjudge, that the son's attaining 21 was a condition 
 precedent ; but merely that the estate fell into possession on his 
 attaining that age, — thereby making this case in exact conformity with 
 the last. 
 
 The same construction prevails, although the trustees are directed 
 to transfer the estate to the minor when he comes of age. 
 
 Doe V. Nicholls, 1 Barn. & Cress. 386, 1823; 1 Law J. K.B. 184. 
 A testator devised to trustees all his freehold and copyhold lands, in 
 trust for his only son, to be transferred to him as soon as he should at- 
 tain to 21 years of age ; and in case he should die before he attained the 
 age of 21 years, then to A. B. his heirs and assigns. On this will a 
 question arose as to the copyhold estates, whether, on the son attain- 
 ing 21, the legal estate vested in him, or remained outstandiiig iu the
 
 J^ya LAW TRACTS. 
 
 trustees, they not having made any surrender, or done any other act 
 indicative of an actual transfer to the son. It was contended, that 
 the trustees took an estate in fee, in this case, because they were 
 required to do an act, to which tlie seisin and possession of the legal 
 estate Mas necessary ; they were directed to transfer the estate to 
 the son on his attaining the age of 21 years, which they could only 
 do by the method required by law, viz. by surrender of the legal 
 interest then remaining in them ; and the trustees were to be con- 
 sidered as having the legal estate in them, for one of them was 
 admitted ; and the admission of one joint-tenant was the admission 
 of all. But, 
 
 Per Bayley J. — It may be laid down as a general rule, that 
 where an estate is devised to trustees for particular purposes, the 
 legal estate is vested in them, as long as the execution of the trust 
 requires it, and no longer ; and therefore, as soon as the trusts are 
 satisfied, it will vest in the person beneficially entitled to it. Doe v. 
 Simpson (5 East, 162, infra,) and Doe v. Timmins (I B. & A. 530,) 
 are authorities upon that point. It seems to me, therefore, that the 
 purposes of this will might be fully effectuated, if the trustees took 
 an estate determinable when the son attained the age of 21 years. 
 In the cases cited by the defendant's counsel, the trustees were to 
 take the rents and profits, in order to raise money by sale or mort- 
 gage, for the payment of debts ; and they could not in that case have 
 had the means of executing the trust, unless they had the fee. Here, 
 all the purposes of the trust might be answered, by the trustees 
 taking an estate determinable on the son's attaining the age of 21 ; 
 and that being so, I am of opinion that they took an estate determin- 
 able at that period ; and, consequently, that the legal estate, at the 
 commencement of the action, was vested in the lessor of the plaintiff. 
 
 HoLKOYD J. — It has been said, that the trustees are to transfer 
 the estate ; and that the seisin and possession of the legal estate is 
 necessary, in order to transfer it to the cestui que trust when he comes 
 of age. But they are not to transfer the legal estate, but tlie copy- 
 hold lands. A surrender may be necessary to transfer the legal 
 estate ; but copyhold lands may be transferred without any sur- 
 render. I consider the words, "to be transferred," to mean, that 
 as soon as the son shall attain the age of 21 years, the copyhold 
 lands are to be delivered up to him. I am very clearly of opinion, 
 that the trustees had no legal interest in the copyholds in question, 
 after the son attained the age of 21 years. 
 
 And the same construction would, it is presumed, prevail, on a 
 devise of freeholds. The reasoning of the last learned Judge is as
 
 LAW TRACTS. 29S 
 
 applicable to the one species of estate as the other. The next case 
 on this bi'anch of the rule, is that of 
 
 Warier v. Hutchinson, 1 Barn. & Cress. 721, 1823 ; (s. c. 1 Sim. 
 & Stu. 276 ; 2 Brod. & Bing. 349 ; 5 J. B. Mo. 143 ;) where trustees 
 were held to take a chattel interest during the minority of the testa- 
 tor's son, the gift being to him at 21. The case was shortly this : — 
 
 A, by will, charged his real estates with the payment of his debts 
 and funeral expenses, and subject thereto, he devised the same unto 
 three trustees, their heirs and assigns, until his nephew B should 
 attain the age of 21 years; and if he shovdd die in the mean time, 
 until his nephew C should attain that age ; and if he should die in 
 the mean time, until his niece D should arrive at that age, upon trust 
 that the trustees sliould raise, out of the rents and profits, or by sale 
 or mortgage of the said estates, a sum sufficient to pay his debts, 
 funeral expenses, and legacies ; and then that they should apply a 
 proper sum out of the rents and profits, for the maintenance and 
 education of his nephew B, until he should arrive at the age of 21 
 years ; and then to pay him all the rents and profits that should 
 remain in their hands; and if B should happen to die befoi'e 21, then 
 upon similar trusts as to C and D ; and when and as soon as the said 
 B should attain his age of 21 years; or in case of his death, when 
 and as soon as the said C should arrive at that age ; or in case of his 
 death, when and as soon as the testator's niece D should arrive at 
 the age of 21 years, he devised his real estate, subject as aforesaid, 
 to the said trustees, their heirs and assigns, to and upon the uses, 
 intents, and purposes thereinafter declared concerning the same ; 
 that was to say, to the iise of the said nephew B, his heirs and assigns, 
 for his life ; and after the determination of that estate, to the use of 
 the said trustees, their heirs and assigns, for and during the life of 
 the saidB, in trust to preserve the contingent uses and estates there- 
 inafter limited, with remainder to the use of the first and other sons 
 of the body of the said B in tail male ; with remainder to his daugh- 
 ters in tail male, according to seniority ; with remainder to C for life ; 
 with remainder to the smne trustees and their heirs during his life, in 
 trust to preserve contingent remainders, with remainders over. 
 
 B married, but died under 21, leaving a daughter, his only child 
 and heiress-at-law. Two of the trustees survived the testator, but 
 were since dead, leaving the defendant Hutchinson, their co-trustee, 
 them surviving. One question was, what estate the trustees took in 
 the estate devised by the said will. Preston contended, that they 
 took a determinable fee, viz. till B attained 21 ; that on a determinable
 
 '.l[)i- LAW Til ACTS, 
 
 fee there could not be a roinaiiider, nor any vested limitation, but 
 only an executory devise ; that if B had attained 21, the estate of the 
 trustees would have determined, and B would then have taken a 
 particular estate, with a class of remainders over to his children, by 
 way of executory devise; but he not having attained 21, the exe- 
 cutory devise did not take effect, and consequently that he and his 
 daughter took nothing by the devise ; — that B did not take any estate, 
 was clear ; for he could not have any vested interest before the trus- 
 tees took a seisin to supply the uses ; and they were not to take such 
 seisin in the lifetime of B, while he was under 21, — they must have 
 had the legal fee as devisees to uses, before the uses could be exe- 
 cuted by the statute, — the gift was contingent, and the contingency 
 not having happened, the estate went over ; that there was one 
 cogent reason why the trustees should take a determinable fee in this 
 case, rather than a chattel interest, — if they took a chattel interest, 
 then on their death their executors would have become trustees. 
 The testator, however, had given the estate to the trustees and their 
 heirs. The effect of a construction, which would give the trustees 
 a chattel interest, would be to change the character of the succeed- 
 ing trustees from heirs to executors ; and by the rules of law, it was 
 impossible that the trustees should have an estate to them and their 
 heirs during a minority, unless that estate were for life or in fee. A 
 gift to A and his heirs, until B shall attain 21, is an estate in fee, to 
 become absolute if B dies under 21 ; while, if it is to be clearly col- 
 lected from the words of the gift, that the interest is to cease, as well 
 by death as by minority, then there is an estate for life. Tracy v. 
 Letheullier, {o Atk. 774; Ambl. 204,) was an authority to show, 
 that the gift to the trustees was in this case a determinable fee. 
 That case had not been correctly represented by Fearne (Conting. 
 Rem. 225, 6th edit.), for no remainder, after a determinable fee, 
 though given for a particular purpose, could be vested. In the case 
 of Wright V. Pearson, (Ambl. oSS,) Lord Hardwicke declared, that 
 a gift to trustees and their heirs could not be a chattel interest, be- 
 cause, in the event of the death of the trustees, their executors, 
 instead of their heirs, would be the trustees — which was contrary to 
 the express intention of the testator. 
 
 Hodgson (contra) contended, that the trustees took a particular 
 estate, capable of being the foundation of a remainder, and not a 
 fee determinable upon a particular event ; and in that case B took a 
 vested estate in remainder. In Mansfield v. Dugard, (1 Kq. Ca. 
 Abr. 195,) there was a devise to the testator's wife till his son should 
 attain twenty-one years, and when he should attain that age, then
 
 LAW TIIAC'I^:. 
 
 iim 
 
 to the son and his heirs. The son died at the age of thirteen 
 years ; and it was held, by Lord llardwicke, that the wife's estate 
 determined upon his decease, and that the remainder vested in the 
 son at the testator's death, and did not expect the contingency of 
 his attaining twenty-one. The decision was, that the particular 
 estate determined on the death of the son under twenty-one ; and, 
 therefore, that that estate was a chattel interest. Doe v. Under- 
 down, (Willes, 293,) Goodtitle r. Whitby, (1 Burr. 222,) and Doe v. 
 Lea, (3 T. R. 41,) were authorities to the same effect, only with one 
 difference, very material to this case. In the two latter cases, the 
 devise was to trustees and their heirs ; and yet, it was held, that 
 they took only a chattel interest. In Stanley v. Stanley (16 Ves. 491) 
 also, the devise was to trustees and their heirs, in trust, to receive 
 the rents until A should attain twenty-one, and immediately after he 
 should attain 21, to convey to the use of A for life: Sir W. Grant 
 held, that A took a vested remainder for life ; and that the trustees 
 took an estate for so many years as his minority might last. Tliat 
 case also is an authority to show, that the estate of the trustees may 
 be a cliattel interest, although it be limited to them and their heirs, 
 and that the subsequent remaiiider is vested. In all these cases an 
 estate has been given to fill up the measure of time, until the de- 
 visee beneficially interested, attains the age of twenty-one years ; 
 and yet, it has been held, that the attainment of that age is no con- 
 dition precedent, but merely denotes the time when the former 
 estate is to detsrmine, and the remainder to vest in possession. 
 
 The Court of King's Bench certified, that the trustees took only 
 a chattel ititerest in the estates devised to them : that, on the death 
 of the testator, B took a vested estate for life ; that his daughter 
 took an estate in tail male on the death of her father ; and that C 
 took at the testator's death, a vested estate for life in remainder, 
 expectant on the death of his brother B, and failure of the issue 
 male of his sons and daughters. 
 
 Two points are worthy of observation in this case. The first is, 
 that the trustees are directed to raise a sum of money by sale or 
 mortgage of the estates ; and it is generally understood, that when 
 the trust is thus worded, the trustees take the legal estate in fee, 
 in order to enable them to make the requisite sale or mortgage ; and 
 there can be no doubt, that if they had sold all or any part of the 
 estates for the raising the sum charged, they might have conveyed 
 the legal estate in fee, for the subsequent uses were mere shifting- 
 uses, and were all subservient to the predominant purpose of discharg- 
 ing the debts. Nevertheless, as to such parts of the estates as were 
 not necessary to be used to realize the sum directed to bo raised, it is
 
 'lOG LAW 111 A CIS. 
 
 clear the testator diil not intend to give the legal fee in those parts of the 
 estates to his trustees in the first instance, as he subsequently limits the 
 use to them for the life of the tenants for life ; and therefore, although 
 Mr. Sanders quarrels with this certificate, as trenching on former au- 
 thorities, (1 Sand. 255, 4th edit.) yet, with deference to that learned 
 gentleman, it is submitted, that this case is consistently determined 
 with reference to its own peculiar circumstances. See further infra. 
 
 The second point is respecting the descent of the chattel interest, 
 adjudged to be in the ti'ustees. The courts, although they have 
 repeatedly acknowledged the existence of this chattel interest, have 
 not yet determined, that it shall descend to executors where the origi- 
 nal trust mentions heirs; and it by no means follows as certain, that, 
 because it is said to be a chattel interest, that therefore it must go out 
 of the course of descent which the testator has pointed out for it. The 
 estate, it is to be remembered, is altogether an anomaly ; and it would 
 not be much out of character, if it were held to devolve on heirs, as trus- 
 tees expressly substituted by the testator, in preference to the persons 
 whom the law says shall inherit terms for years. The devise, it is sub- 
 mitted, is to the heirs quasi purchasers, not as descendants taking bene- 
 ficially, but as persons specially designated to fill up the trusts in case 
 of the deaths of the original trustees ; and such appears to have been 
 the notion of my Lord Keeper Northington, in Wright v. Pearson, 
 (1 Eden, 119. infra,) but there, his Lordship adduces the impossibility 
 of changing the descent, as a reason Mhy the trustees should not take 
 a chattel interest ; though in Ambl. oQ2, it is said, that trustees 
 take a chattel interest only where the interest limited to them is nn- 
 certain ; and, as in the case before the court, the limitation was to 
 them and their heirs ; therefore, they took the fee. The inference 
 to be collected from this passage is certainly corrected by Mr. Eden's 
 report of the same case, (1 Eden, 119,) and therefore this dictum of 
 the Lord Keeper's may now perhaps be considered as overruled ; 
 and all that is intended by these observations is, to remind the 
 reader, that there is no direct adjudication on the subject, and that 
 there is a possibility of the descent being held otherwise than the 
 denomination of the mterest indicates. As to Mr. Preston's extra- 
 ordinary interpretation of the will in the principal case, respecting the 
 executory devise and determinable fee, there can be but one opinion 
 that it was ill-founded both in principle and authority. 
 
 It is further observable, that although the trustees have an express 
 power of leasing reserved to them during minority ; they take only a 
 chattel interest, if their trust is then to determine ; but this rule only 
 applies to freehold and copyhold estates, not to leaseholds.
 
 LAW TRACTS. 297 
 
 Right d. Phillips v. Smith, 12 East, 455, 1810. In this case, the 
 testator had three estates, A, B, and C. He devised estate A, 
 consisting of freehold and leasehold lands, to three trustees, their 
 heirs, executors, administrators and assigns, upon trust, to permit 
 and suffer his wife to receive and take the rents and profits, until 
 his son Thomas should attain 21 ; and upon his said son's attain- 
 ing that age, then upon trust to and for the use of his said son, 
 his heirs, executors, administrators and assigns. He then devised 
 estate B to the same trustees, upon trust, to receive the rents and 
 profits thereof, till his said son Thomas should attain 21, and to 
 pay and apply them, in the mean time, in discharge of the interest on 
 a bond for 3,000/. ; and on the son's attaining 21, upon trust, by 
 sale, lease, or mortgage of all or any part of those premises, to raise 
 the 3,000/., and subject thereto to the use of his said son Thomas, 
 on his attaining 21, and his heirs. The testator then gave estate C, 
 and the residue of his real and personal estate, to the same persons, to 
 hold the same unto and to the use of them, their heirs, executors, admi- 
 nistrators and assigns, upon trust, that they should, either by sale, 
 lease, or mortgage of all or any part of the said real estate, raise the 
 sum of 3,000/., and pay it to his, daughter Elizabeth, in discharge of 
 a legacy given her by Sir John Phillips ; and, after payment thereof, 
 to sell and absolutely dispose of so much of the same real estate as 
 they should think proper, to raise money to pay his debts, funeral 
 expenses, and legacies ; and afterwards, in trust, to pay the produce 
 of his real and personal estate to his wife, for the better maintenance 
 of herself and children till 21 ; and then to convey and transfer to 
 them such residue. The will contained a proviso, that it should 
 be lawful for the said trustees, and the survivors and survivor of 
 them at any time or times till all the said messuages, &c. devised to 
 them upon trust, as aforesaid, should actually become vested in any 
 other person or persons by virtue of this will, or until the same 
 should be sold, to demise and lease the same premises for any term 
 not exceeding 14 years. — From this clause it was inferred, that the 
 testator did not mean to give the trustees the legal estate in fee in 
 any of his property ; for, if he had done so, it would not have been 
 necessary to have given them an express power to lease, that power 
 being included in the fee. 
 
 Lord Ellenborough — It was admitted upon the argument, that 
 a limitation of the freehold premises to trustees, upon trust to permit 
 another person to receive the rents and profits, would, in general, vest 
 the legal estate in the person who is to receive the rents and profits ; 
 and Broughton v. Langley (Ld. Raym. 837,) is an authority in point 
 
 2 N
 
 298 LAW TRACTS. 
 
 that it will. But it was contended, that the power of leasing in this 
 will distinguished this case from that of Bronghton and Langley ; 
 and it is said that this power extends to all the premises devised. 
 The will contains three devising clauses, the second and third of 
 which contain powers of sale; but the first contains no such power, 
 but is in trust, to permit the widow to receive the rents till the 
 son attains 21, and it is then to the use of the son in fee. It is 
 true, that the first clause contains leaseholds as well as freeholds ; 
 and as to the leaseholds, the legal estate must be in the trustees : 
 but it does not follow, that the testator intended that they should be 
 included in the power of leasing; and even if they were intended to be 
 included, it does not follow that there was the same intention as to 
 tlie freeholds. The trustees were to have no control over these pre- 
 mises for any purposes of the testator's will ; they were to vest and 
 enure for all beneficial purposes solely to the use of the widow till 
 the son was 2 1 , and then to enure wholly to the use of the son ; and 
 there is nothing upon the face of the will bespeaking an intention 
 that the mother and the son should not, respectively, have in succes- 
 sion the legal estate, and, if they thought fit, the actual possession. 
 We are of opinion, that Harriot Phillips, the mother, took the legal 
 estate in the premises in question; and, consequently, that the plain- 
 tiff, claiming from her, is entitled to recover. 
 
 As to the other estates, there could be no doubt that the legal 
 estate in fee was vested in the trustees. The devise of the second 
 estate contained a power of sale, and the use was expressly executed 
 in the devise of the third estate. 
 
 In like manner, where trustees had power to let and sell during 
 minority, they were held to take only a chattel interest. 
 
 Z)oe (1. Builden v. Harris, 2 Dow. & Kyi. S6. A testator de- 
 vised to three trustees, and the survivor and survivors of them, their 
 and his heirs and assigns, upon trust, to secure to his wife an an- 
 nuity of GO/, a year fur life ; and then in trust for his children, until 
 they should attain the age of 21 years ; and then unto and among 
 them, share and share alike, as tenants in common, and not as joint 
 tenants. The will contained clauses empowering the trustees to re- 
 ceive the rents, and to lay out the surplus beyond the annuity and 
 other charges thereon, in good securities ; to grant leases of the 
 estates for a term not exceeding seven years ; and, if they should 
 think it advisable, to sell any part thereof at any time after his death. 
 The testator's children had all attained the age of 21 years, and were 
 the present lessors of the plaintiflf". In answer, to this case it was
 
 LAW TRACTS. 299 
 
 contended, that, by the words of the will, the legal estate was vested 
 in the trustees, and not in the children ; and, consequently, that the 
 present action by them could not be maintained ; and it was said, 
 that the powers given to the trustees were inconsistent with any other 
 construction ; for how could they have authority to lay out the rents ; 
 to grant leases for years ; and, above all, to sell the estates them- 
 selves, * at any time after ' the testator's ' death,' unless those estates 
 were legally and absolutely vested in them ? 
 
 Per Cur. — There is an express gift of the estates to the children 
 in fee when they shall arrive at the age of 21 years; and we must, 
 if possible, so construe every part of the will as to give effect to 
 that object. There is, however, no difficulty in doing this. The 
 powers given to the trustees are for the benefit of the children 
 during their infancy, and a limitation is put to them by the express 
 devise of the freehold. Till they reach the age of 21, their interests 
 are committed to the care and management of the trustees, and from 
 that time they come into their own hands. — Judgment for plaintiffs. 
 
 We now pass to another class of cases, where the estate of trustees, 
 purporting a fee, is cut down to an estate just equivalent to the pur- 
 pose of the trust ; namely, where the devise to them is for payment 
 of debts. For this purpose, they are held to take a chattel inte- 
 rest, a base fee, or the fee simple, as will best answer the obvi- 
 ous intention of the testator; and, in the first case, they were 
 held to have a chattel interest only ; the devise being to persons 
 who were afterwards (as it appears by the judgment,) appointed 
 executors. 
 
 Hitchens v. Hitchens, 2 Vern. 404, 1700. Samuel Kitchens, in 
 1679, devised, that if his stock and credits abroad should not be suf- 
 ficient for payment of his debts and legacies, that his executors should 
 pay the same out of the rents and profits of his real estate ; and when 
 his debts and legacies were paid, he devised his real estate to his son, 
 Giles Hitchens, in tail, with remainders over. 
 
 Per Cur. — It must be admitted, that the estate in the executors 
 was but a chattel interest ; so is Cordal's case, Cro. Ehz. 135, Mat- 
 thew Manning's case, 8 Rep. 96, and as such could not hinder dower: 
 the trustees were only to receive the rents and profits until the 
 testator's debts and legacies were paid, and that interest determined 
 at law when the trust was satisfied ; and, therefore, the recovery of 
 the wife's dower was just. 
 
 In the next case, the trustees were held to take a determinable fee 
 till the debts were paid.
 
 ;jOO I-\W TKAC'l'S, 
 
 Wellington v. Wellington, 4 Burr. iil65, s. c. 1 W. Black. 645, 
 17G8. A testator, after directing tlie payment of his debts and fune- 
 ral expenses, proceeded thus : — " Item, in default of issue of my own 
 body, I give, devise, and bequeath," &c., and then gave all his estates 
 to two trustees and their heirs in trust, to pay out of the rents, issues 
 and profits, unto his sister, an annuity of 100/. per annum during 
 such tune, and until all his just debts, funeral expenses and legacies 
 should be paid ; then, immediately after such time as all his just 
 debts, funeral expenses, and the legacies given by his will, should be 
 fully paid and satisfied by the said trustees, from and out of the rents 
 and profits of his said estates, he devised the same estates to his 
 sister for life ; afterwards to the said trustees, to preserve contingent 
 remainders ; and after her decease to the use of James, the second 
 son of his said sister, for life ; then to the use of the trustees during his 
 life; and after his death, to the use of his first and other sons, 
 in strict settlement, with remainders over. The question for the 
 opinion of the Court of King's Bench was, whether the trustees 
 in the said will took any, and what estate thereunder. The Court 
 certified, that the trustees took a fee determinable, when the pur- 
 pose of paying the testator's debts, legacies, and funeral ex- 
 penses out of the rents, issues and profits of the devised premises, 
 in aid of the personal estate should be performed. — (See also 1 
 Pr. Wms. 509.) 
 
 The testator in this case was a bachelor at the time of making his 
 will, and died so. Several speculations were thrown out by the 
 counsel, and an unintelligible observation or two by the court, as to 
 the nature of the estate limited to the testator's issue. On the one 
 hand it was said, the issue would take an estate tail, as purchasers ; 
 then, said Dunning contra, " the executory devise to the trustees is 
 too remote and void, being limited on a general and indefinite failure 
 of issue ;" upon which Lord Mansfield C. J. observed, " this is only 
 a double contingency, of which one part is good by law, the other 
 bad. When a devise must take effect at the death of the testator, 
 it is not properly an executory devise. Such a devise is a devise 
 upon a contingent event, which must happen at or before the death 
 of the testator. An executory devise is a devise that is to take 
 place in future." Hence it is to be inferred, that Lord Mans- 
 field pinned down the failure of issue to the time of the testator's 
 death, as effectually as if the testator had said, "in default of any 
 issue of my own body living at the time of my decease ;" and such was, 
 no doubt, the testator's intention. 
 
 A devise to trustees, subject to debt?, has been held to be a charge
 
 LAW J'R.VCTS. 
 
 301 
 
 only of debts on the estate ; and, consequently, as not of necessity 
 conferring any legal estate ou the trustees. 
 
 KenricJc v. Beauderk, 3 Bos. & Pul. 175, 1802. Thelwall Price, 
 by his will, devised thus : " as to my real and personal estate^ sub- 
 ject to and chargeable with my just debts and funeral expenses, I 
 give, devise, and bequeath thereof as follows : I give, devise, and 
 bequeath my real estates, and also all my personal estate, goods, 
 chattels and effects whatsover, unto A and B, and their heirs, 
 upon the trusts following: that is to say, to the intent, that the 
 said A and B, and the survivor of them, and the heirs, executors 
 and administrators of such survivor, should, in the first place, apply 
 and dispose of my personal estate, or so much thereof as shall be 
 sufficient for that purpose, to and in payment of all my just debts 
 and funeral expenses, and to and in dischai'ge of all such legacies as 
 I may by this, or any future will or codicil, direct to be paid : and 
 as to all my real estates, whatsoever and wheresoever, subject to my 
 debts and legacies, I give, devise, and bequeath the same unto my 
 cousin Richard Price, for his natural life, with remainders over." 
 On a case from the Court of Chancery, the questions were, First, whe- 
 ther the trustees, in the will of the testator Thelwall Price, took any 
 estate at law? Secondly, whether the tenant for life took any estate 
 at law? Against the construction of a legal estate in the trustees, 
 Bayley Serj., said, " it is clear, that if it had appeared upon the face 
 of this will, that the trustees were directed to do any thing, they must 
 have taken a legal estate ; but, in this will, there are no directions to 
 that eftect. The testator has not directed them to pay the debts 
 out of the real estate ; the payment of the debts is only made a charge 
 upon the devisees. Where the testator intended that they should 
 have any management of his property, he has so expressed himself 
 in precise terms ; for, with respect to his personal estate, he ex- 
 pressly gives it to the trustees, upon trust, to pay his debts, legacies, 
 and funeral expenses. But in the disposition of his real estate, he 
 employs no words to show that the trustees were to have the dis- 
 posal of the profits." 
 
 Lord Alvanley, in delivering the opinion of the Court, said, " where 
 something is to be done by the trustees, which makes it necessary 
 for them to have the legal estate, such as patjment of the rents and 
 profits, to another's separate use, or of the debts of the testator ; or 
 to pay rates and taxes, and keep the premises in repair, or the like ; 
 the legal estate is vested in them for that purpose, and the grantee 
 or devisee has onlv a trust estate: 2 Saund. 11, 17i. Here, tiic
 
 302 LAW TRACTS. 
 
 question is, whether sufficient appears on the face of this will to de- 
 monstrate an intention in the testator, that the trustees should pay the 
 debts. Unless it appears manifestly that the testator intended that 
 the trustees should be active in paying the debts, the legal estate 
 will not vest in them. It would, indeed, be much more convenient 
 that the legal estate should be vested in trustees, for payment of the 
 debts, than that the trust should be executed by the devisee, under 
 the direction of a court of equity ; for a court of equity could not 
 enable the devisee to make a complete title to the estate : but this is 
 only an argument ab inconvenienti, from which we cannot construe 
 the testator to have said what, in fact, he has not said. Perhaps if 
 it had been suggested to him, he would have directed that the pay- 
 ment should be made by the trustees ; but he has not done so. This 
 is a mere devise charged with the payment of debts.. In disposing 
 of the personal estate, the testator directs the trustees to pay his 
 debts, legacies, and funeral expenses ; but, in the limitation of the 
 real estate, he does not even say, after payment of his debts and 
 such other charges as he shall make, to the use of the tenant for life ; 
 but subject to his debts and such charges as he shall make. Upon 
 these grounds, we are all of opinion, and shall so certify, that the 
 trustees took no legal estate in the premises ; but that Richard Price 
 took an estate at law, for life, charged with the payment of debts." 
 The following certificate was sent to the Lord Chancellor : — 
 " This case has been argued before us, and we are of opinion, that 
 the trustees named in the will of Thelwall Price did not take any 
 estate at law in the real estates devised by the said will. We are 
 also of opinion, that Richard Price, the tenant for life, took a legal 
 estate in the said real estates." 
 
 In conformity with this certificate, it was in a recent instance held, 
 that the trustees took the entire fee, they being expressly directed 
 to pay the debts. 
 
 Murthivaite v. Jenkinson, 2 B. & C. 358, 1824. A. by will de- 
 vised and bequeathed to three trustees, and to the survivors and sur- 
 vivor of them, and the heirs, executors, and administrators of such 
 survivor, all and every his freehold, copyhold, and leasehold estates, 
 and all his personal estate and effects, whatsoever and wheresoever, 
 in trust, to pay thereout the several legacies and annuities therein by 
 him given and bequeathed, and for other purposes in the will men- 
 tioned. The testator gave legacies and annuities to a consider- 
 able amount, and directed that the annuities should be chargeable 
 on his 26,400/. in the 3 per cent, consolidated annuities. After the
 
 LAW TRACTS 303 
 
 legacies and annuities, the testator proceeded, "All the rents, issues, 
 dividends, interest, profits and produce of all the rest, residue and 
 remainder of my estate and effects whatsover, I do give, devise and 
 bequeath unto my three nieces, for their natural lives," with remain- 
 ders over. It was stated in the case, that a large surplus remained 
 after paying debts, legacies, and annuities ; but it was not stated, 
 that the legacies were actually paid, or that the annuitants were dead. 
 One question was, whether the trustees took the legal estate in fee, 
 in the freehold lands, under the above will ? Against that construction 
 it was forcibly contended, that, looking at the whole will, it was plain, 
 that the devise to the trustees was merely for the payment of debts 
 and legacies ; that the testator intended the personal property to be first 
 applied to those purposes, and that the real estate should not be so ap- 
 plied, if the personal estate were suflScient. The annuities were ex- 
 pressly made chargeable, in the first instance, on the stock ; the di- 
 rection to the trustees was, to pay the legacies and annuities out of 
 the funds left to them. There was no direction for them to sell, or 
 convert into money, any part of the real estate ; nor, in the devise of 
 the residue, does the testator mention it as property already given to 
 the trustees. He gave it directly to his nieces, and did not provide 
 that the trustees should hold in trust for them. There was no de- 
 vise to the use of the trustees ; and, therefore, nothing to prevent the 
 use being executed in the persons beneficially entitled, after payment 
 of the debts and legacies. It was, therefore, to be inferred, that the 
 testator intended to devise the real property to the trustees, only in 
 case the personal should prove insufficient ; and if a devise to that 
 effect wovdd be good, if express, it might also be good when implied ; 
 that the court would not allow the trustees to take more than, or be- 
 yond what was sufficient for the purposes of the trust : Doe dem. 
 Player v. NichoUs, 1 B. & C. SSQ. Here, it was found, that a large 
 surplus of the testator's personal estate and effects remained after pay- 
 ing the debts, legacies and annuities ; and, therefore, the surviving 
 trustee had not now any estate in the freehold or leasehold tenements. 
 The court, however, (after complaining that they were not informed 
 by the case, whether the fund, upon which the legacies and annui- 
 ties were charged, really existed ; nor whether the debts and lega- 
 cies were paid ; nor whether all or any of the annuitants were living: 
 and hinting that it might be possible, that the testator intended that 
 his trustees should take quousqUe only,) certified, that the surviving 
 trustee, (two of the trustees being dead,) then had a fee-simple in the 
 freehold estates, and an absolute interest in the leasehold estates, 
 given by the will of the said testator.
 
 SOi LAW TKACTS. 
 
 This case had been previously argued in the Court of Common 
 Pleas, and the judges of that court also held, that the trustees took 
 the legal estate : 2 13rod. & Bing. ()29. The argument relied on in 
 both courts was, that the trustees had legacies and annuities to pay, 
 and it did not appear that the personalty would certainly be sufficient 
 for that purpose, nor indeed that it existed at all. They had, also, a 
 legal estate to support contingent remainders, the estate of the trus- 
 tees not being confined expressly to the lives of the tenants for life. 
 
 If the devise be to trustees and their heirs, for A's life, in trust to 
 receive the rents, and (ipphj them for his maintenance, with remain- 
 der to the heirs of the body of the said A, the trustees take the legal 
 estate for A's life, so as to prevent a union of the legal estate tail, 
 with the equitable estate for life. This constructidYi arises from the 
 active duty the trustees have to perform, in the application of the 
 rents to a specific purpose, which, we have seen in the foregoing re- 
 marks on the distinction between trusts to " permit and suffer," and 
 trusts to " pay over," always gives the legal estate. 
 
 Silvester v. Wilson, 2 T. R. 444, 1790. In this case, a dwelling- 
 house was devised to trustees and their heirs, and to the survivor of 
 them and his heirs, upon trust, that they and their heirs, and the sur- 
 vivor of them, and his heirs, should stand seised of the said dwelling- 
 house for and during the term of the natural life of J. W., the testator's 
 son, to such use and behoof as thereinafter mentioned, viz. that his 
 said trustees should yearly, and every year, during the natural life of 
 the said J. W., take and receive the rents, issues, and yeai'ly profits 
 of the said premises, and apply the same for the subsistence and 
 maintenance of the said J. W. during his natural life ; and immedi- 
 ately after his decease, the testator devised the said premises unto the 
 heirs of the body of the said J. W. lawfully to be begotten ; and for 
 default of such issue, to his own right heirs for ever. After the tes- 
 tator's death, J. W. levied a fine, and declared the uses thereof to 
 himself for life, with remainder to one Best, in fee, and died leaving 
 a son, who, on his father's death, entered on the premises as next 
 heir in tail. The present ejectment was brought by a person, claim- 
 ing under Best, to turn the heir out of possession. The principal 
 question was, whether the use executed in J. W., or remained out- 
 standing in the trustees. If J. W. took the legal estate for life, then 
 the subsequent legal limitation to the heirs of his body coalesced 
 with the prior limitation, and made him legal tenant in tail in pos- 
 session ; and the fine which he had levied would then be good to pass 
 the fee to Best : Imt, if the legal estate were held to be outstanding
 
 LAW TRACTS. 305 
 
 in the trustees, then J. W. having only an equitable estate for fife, 
 and the legal estate being hmited in remainder, the rule in Shelly's 
 case could not apply ; and the heirs would then take as purchasers, 
 and so the fine be nugatory. 
 
 Ashhurst J., in delivering the opinion of the Court, observed : — In 
 Shapland v. Smith, (1 Bro. C. C. 75,) the Chancellor said, that the 
 trustees being to pay taxes and repairs, they must have the legal estate 
 in the premises. In the present case, the testator directs that the 
 rents and profits shall be applied for the subsistence and maintenance 
 of J. W. He, therefore, seemed to mean, that the trustees should 
 be invested with some sort of discretion with respect to the applica- 
 tion ; so that, if the tenant for life had proved dissolute and extrava- 
 gant, and had squandered his money in gaming, to the defrauding of 
 his honest creditors, it was by no means clear that the trustees would 
 not have been justified, either in a court of law or equity, in paying 
 such creditors before they had paid over the surplus to the tenant 
 for life ; as the testator seemed to have had some jealousy of his son's 
 conduct, and to have wished that the trustees should have an eye 
 on the application of the money. Their Lordships were therefore all of 
 opinion, that judgment should go for the defendant ; holding thereby 
 that the trustees took the legal estate for the life of J. W., and that 
 his son took an estate tail by purchase ; he himself taking only an 
 equitable estate for life, which would not support a fine. 
 
 The following anomalous case still further proves the disposition 
 of the Courts, to give the trustees only such an estate as will enable 
 them to fulfil the purpose of trust, and no more. 
 
 Hawkins v. Luscombe, 2 Swan. 391, 1818. Estates were devised 
 to trustees and their heirs, upon trust, to permit M. M. to reside in 
 a mansion-house, and receive part of the rents, in recompense of the 
 maintenance of J. Manning, (eldest son of M. M.,) till he attained 
 21, or died ; and subject thereto, to the use of the trustees and their 
 heirs, in trust for J. M. until he should attain 21 or die, and to the 
 intent that the rents might be accumulated ; and after he attained 
 21, to the use of him and his assigns, during his life, (he taking the 
 testator's surname of Luscombe) ; remainder to the use of the trus- 
 tees and their heirs during his life, to support contingent remainders ; 
 remainder to the use of his first and other sons, taking the surname 
 of Luscombe, in tail male, remainders over : provided that the per- 
 sons claiming under this will should, in taking possession of the 
 estates, assume the surname of Luscombe ; and within three years 
 procure their name to be altered by act of parliament, or some other 
 
 2o
 
 3(){i hAW TllACTS. 
 
 effectual way : and in case they should neglect to obtain an act of 
 ])arliamcnt, or some other authority as effectual, for three years after 
 being in possession, then the use and estate, limited to the person so 
 neglecting, should cease. The Lord Chancellor doubted whether 
 the legal estate remained in the trustees for any other purpose than 
 for securing the estate to the separate use of the plaintiff, (Mary 
 Hawkins,) if the condition respecting the alteration of name were 
 not broken ; and it was subsequently held in the Court of King's 
 Bench, that the condition had not been broken, although neither an 
 act of parliament, nor the king's licence, had ever been obtained 
 authorizing the devisee to change his name. He had, in fact, taken 
 the name of Luscombe, on his entering into possession ; and it was 
 held, that he had thereby substantially complied with the directions 
 of the will; and that he did not incur a forfeiture of that, estate, 
 by not obtaining an act of parliament, or other authority for the pur- 
 pose ; the proviso only applying to persons not bearing the surname 
 of Luscombe at the time when the estate vested in them : 5 Barn. 
 & Aid. 514. 
 
 Before we conclude this section of the subject, it may be proper 
 to mention that the case of Wyhham v. Wijkham, (11 East, 458 ; 
 .'i Taunt. 31G; 18 Ves. 395,) turned on the validity of the execution 
 of a power, though at first sight it appears to have been decided on, 
 the subject of this Tract. 
 
 SECTION IV^ 
 
 Of Trusts to sell, convey, repair, let, ^c. ; and for purposes which 
 necessarily recpdre the Fee. 
 
 " It seems to be clear," says Mr. Sanders, " upon principle as 
 well as authority, that where the trust authorizes the trustees to sell, 
 the legal estate in fee simple must necessarily vest in them, in order 
 to enable them to perform their trust." ' But in a late case,^ the 
 learned gentleman adds, the uniformity of these decisions seems to 
 have been interrupted.^ The case, however, to which he alludes is 
 one of a very peculiar nature, and has been subsequently argued in the 
 Court of King's Bench,'* as it had been previously in the Court of 
 
 1 1 Sand. U. 249, 4th ed. -' Water I'.Water, 2 Brod. & Bing. 'Md. 
 
 ■' 1 Sand. U. 255. ^ 1 Barn. & Cress. 721.
 
 LAW TRACTS. 807 
 
 Chancery,* neither of which reports Mr. S. notices. The case has 
 been ah-eady mentioned in confirmation of another point ;*' but we 
 shall again have occasion to refer to it in its place in this section. 
 
 The earliest case in this class is Bagshaiv v. Spencer, (1 Ves. 142, 
 1748,) where it was held, that a trust to sell necessarily gave the fee ; 
 and that an executory devise, after payment of debts, was too remote 
 and void. 
 
 A testator devised all his manors, lands, &c. to five trustees and 
 their heirs, upon trust, that they, or the survivor of them, or the heirs 
 of the survivor, should, out of the lands, &c. by the rents, issues, and 
 profits, or hy sale or mortgage of the whole, or so much as should be 
 necessary, raise as much money as should be sufficient for the payment 
 of debts, legacies, and funeral expenses ; and then as to one moiety, 
 upon trust, for and to the use of his nephew, Thomas Bagshaw, for 
 his life, sans waste ; then to trustees, for and during the life of T. 
 Bagshaw, for support of contingent uses, but to permit him to re- 
 ceive the profits for his life ; and then to the heirs of his body law- 
 fully begotten, or to be begotten ; and for want of such issue, then 
 to his nephew Benjamin Bagshaw, for life, without impeachment of 
 waste ; then to trustees, to preserve, &c. in the same manner ; then 
 to the heirs of his body ; remainder to his (the testator's) own right 
 heirs. Thomas Bagshaw died unmarried ; Benjamin, the second 
 devisee, brought a bill against the trustees and all proper parties, 
 for performance of the trusts ; and in the same term, suffered a reco- 
 very of the premises comprised in the will. One question was, whe- 
 ther any and what estate was outstanding in the trustees at the time 
 the recovery was suffered. 
 
 Lord Hardwicke — I am of opinion, that this devise was merely 
 a trust in equity. The first devise is to the trustees and their heirs, 
 carrying the whole fee in point of law. Part of the trust is to sell 
 the whole or a sufficient part, for the payment of debts and legacies, 
 which would carry a fee by construction, although those words, 
 [namely, "and their heirs,"] were omitted out of the devise; as in 
 Shaw V. Weigh, (Eq. Ca. Ab. 184.) Then the trustees might sell 
 the inheritance of the whole, by virtue of their estate, not of their 
 power ; and they must have a fee in the whole, otherwise, as it is un- 
 certain what they may sell, no purchaser could be safe ; which differs 
 from Cordal's case, (Cr. E. 315, cited in 8 Co. 96, a.) and Carter v. 
 Barnardiston, (1 P. W.505,) and Popham and Bamfield, (1 Ver. 79,) 
 
 5 1 Sim. h Stu. 27C. « Ante p. 293.
 
 ,'i08 LAW TRACTS. 
 
 and Randall v. Bookey, (Pre. Chanc. 162,) in all which cases there 
 were neither " heirs," nor other words of limitation, nor an express 
 trust to sell: in those cases the trustees took a mere chattel interest, 
 like an elegit, to hold till the debts were paid. It has been argued, 
 that the devise to Benjamin B. may be good by executory devise ; 
 but could Benjamin Bagshaw thereby take a legal estate therein ? 
 He could not, for it is too remote, being after all debts indefinitely 
 be paid ; which may, in point of time, exceed a life or lives in being, 
 or any other time allowed by law. But a clear answer to the reco- 
 very is, that it was suffered before the debts were paid ; and conse- 
 quently, while the fee remained in the trustees, so that he could not 
 make a good tenant to the 2ii'(^cipe. 
 
 When it is said, that a trust to sell necessarily passes the legal 
 estate in fee simple to the trustees ; that proposition must be taken 
 in this qualified sense : that it only passes the legal estate to them 
 where the purposes of the trust require a sale, and never where a hmi- 
 tation is found in the will inconsistent with the supposition that the 
 whole legal estate is intended to pass to the trustees. This position 
 is supported by two recent cases, which appear on a first impression 
 to militate against the general rule ; but, in the first case, (the one al- 
 luded to by Mr. Sanders,) it will be seen, that the limitation was to 
 the trustees and their heirs, in trust to raise money to pay debts and le- 
 gacies ; and subject thereto, the testator devised his estates to the same 
 trustees and their heirs, to the vise of his son for life ; with remainder 
 to the same trustees during his life, in trust to preserve contingent re- 
 mainders, with remainders over. The estates were not wanted for 
 payment of debts ; and, 20 years after the death of the testator, a 
 question arose as to whether any and what estate was outstanding in 
 the trustees. The Court of Common Pleas held, that the trustees 
 took only a chattel interest ; and that the tenant for life took the legal 
 estate, with legal remainders over; which adjudication was afterwards 
 confirmed in the Court of King's Bench.'' In the subsequent case 
 of Hawker v. Hawker, infra, there was no deficiency; and it was then 
 held, that the trustees took nothing. 
 
 Warier v. Warter, 2 Brod. & Bing. 349, 1820 ; s. c. ante p. 306. 
 Devise of lands, tenements, and hereditaments in the counties of Den- 
 biirh and Chester to three trustees and their heirs, until B should 
 attain 21, in trust, to raise out of the rents and profits, or by sale or 
 mortgage thereof, debts, legacies and portions ; and on B's attaining 
 
 ' 5 Mooic, 143 ; 2 Brod. & Bing. 319 j 1 Barn. & Cress. 750.
 
 LAW TRACTS, 
 
 309 
 
 21, then, subject as aforesaid, the said testator devised the said 
 estates to the same trustees and their heirs, to the use of B for 
 Hfe, with remainder to the same trustees and their heirs dvu'ing the 
 hfe of B, in trust to preserve contingent remainders, with remainders 
 over. In the case before the Vice Chancellor, it was held, that cer- 
 tain funds, which had arisen from the accumulation of the rents and 
 profits of these estates during the minority of the tenant for life, were 
 first applicable to the payment of the portions, and that the defici- 
 ency only could be raised by sale or mortgage : 1 Sim. & Stu. 276. 
 
 It is presumed there can be no doubt, that if the rents had not 
 been sufficient to answer the portions, the trustees might have made 
 a good title to a mortgagee or purchaser ; but that question never 
 arose, as it seems the accumulated fund was sufficient to discharge 
 the incumbrances ; and then it became a question, what estate the 
 trustees took, and whether, the purposes of their trust being answered, 
 and the tenant for life having attained his age of 21, any and what 
 estate remained outstanding in the trustees. The Courts of Common 
 Pleas and King's Bench concurred in holding the legal estate to be 
 in the tenant for life, and not in the trustees ; and the judges of the 
 latter Court certified, that the trustees took only a chattel interest: — 
 a construction which they were driven to, to avoid the ill conse- 
 quences of holding them to have a determinable fee. See the argu- 
 ments ante, p. 29J et seq. 
 
 In Hawker v. Hawlcer, (3 B. & A. 573, 1820,) the devise was 
 to trustees and the survivor of them, and the heirs of such survivor, 
 in trust to sell a particular estate to make good any deficiency 
 there might be in the fund appropriated for payment of the testator's 
 debts : there being no deficiency, the trustees were held to retain no 
 estate in the premises. 
 
 A testator by his will and codicil devised all his real estates, in 
 several parishes, to three trustees, and the survivor and survivors of 
 them, and the heirs of such survivor, their heirs and assigns for ever, 
 upon trust, to sell his estate at Himbleton to pay his debts ; and in 
 case it should not be sufficient, then, as to his estate at Flyford, 
 upon trust to sell that estate also, to make good any deficiency ; but 
 in case it should not be necessary to sell that estate, then as to his 
 estate at Flyford, and his other remaining estates in trust, to receive 
 the rents and profits thereof, until his daughter Mary should attain 
 her age of 21 years; but in the mean time to apply the rents and 
 profits for her maintenance and education: and from and imme- 
 diately after his said daughter should arrive to the age of 21 years,
 
 iilO LAW TK.VCTS. 
 
 then, to the use and behoof of liis trustees, and the survivors and 
 survivor of them, his heirs and assigns, for and during the natural 
 hfe of his said daughter Mary. But nevertheless to permit and 
 suffer his said daughter and her assigns to receive and take the rents 
 and profits thereof for and during the term of her natural life. And 
 after the death of his said daughter Mary, then, to the use and 
 behoof of all and every the children of his said daughter Mary, 
 law'fidly begotten, share and share alike, to hold as tenants in com- 
 mon, and not as joint-tenants; with an executory devise over, in 
 case his said daughter should happen to die under the age of 21 
 years without issue. 
 
 No part of the hereditaments at Flyford had been sold, it not 
 being necessary to sell the same for the payment of the testator's 
 debts. In a case from the Vice Chancellor to the Court of King's 
 Bench, the question was, what estate the trustees took in the estate 
 at Flyford. On the part of the defendant, it was contended, that they 
 took an estate in fee ; for the estates being given to the trustees, and 
 the survivors and survivor of them, and the heirs of such survivor, 
 it could not be ascertained who the survivor would be, and therefore 
 no use could have been executed at that time in those in remainder, 
 for want of a vested and co-extensive seisin ; that the trustees took 
 only a joint estate for their lives, with a contingent remainder in fee 
 to the survivor, as was admitted in Vick v. Edwards, (3 P. W. 272) ; 
 that in order to execute a use, the party must be seised, the word 
 
 * seised,' being the only word in the Statute of Uses. Here, the 
 devisees were not seised of the fee, by reason of the contingency to the 
 survivor, and therefore no use in fee could be executed ; and although 
 they were seised of a joint estate for their lives, a use could not be 
 executed out of this seisin to themselves, their heirs and assigns 
 
 * during the life of the daughter,' which were the words used in the 
 will. — The Court however, returned the following certificate : *' We 
 are of opinion, that the trustees take to them, and the survivors and 
 survivor of them, and the heirs of the survivor, only an estate for the 
 life of the testator's daughter Mary, in the lands at Flyford." 
 
 If the trustees have to convey a particular interest in a given 
 event, they necessarily take the legal estate. 
 
 Gartli V. Baldwin, 2 Ves. 645, 1755. The testator devised all his 
 real and personal estate, whatsoever and wheresoever, subject to 
 annuities and legacies, and all estate, right, title, and interest in law 
 and equity, to Charles Baldwin, his heirs, executors, ike. in trust, to 
 pay the rents of the real, and profits of the personal estate, to his cousin
 
 LAW TRACTS. 311 
 
 Sarah Garth, to her separate use for Ufe, and as if sole and unmar- 
 ried ; and after her death to pay the same to Edward Turner Garth, 
 her son, for hfe ; and afterwards to pay the same to the heirs of his 
 body ; and, for want of such issue, to pay the same to all and every 
 other son or sons of the body of Sarah Garth, begotten, or to be 
 begotten, and the heirs of their bodies successively, the eldest to be 
 preferred in priority of birth ; and for want of such issue, in trust, to 
 convey all the real and personal estate to his cousin Thomas Gore, 
 his heirs, executors, administrators and assigns for ever — the bulk 
 of his estate coming from his family, with a direction that by act of 
 Parliament or otherwise, as should be thought proper, all the sons 
 of Sarah Garth should take upon them the name of Turner. Ed- 
 ward Turner Garth being of age, preferred his petition to ascertain 
 his interest in the real and personal estate of the testator. 
 
 Lord Chancellor — I am of opinion, that I must direct the convey- 
 ance to be to him in tail. The principle is, that in limitations of a 
 trust, the construction should be the same as in limitations of the 
 legal estate, unless the intent of the testator plainly appears to the 
 contrary. I agree that it would be an inaccurate conveyance to 
 limit the estate to Edward Turner for life, and from and after his 
 decease to the heirs of his body begotten, or to be begotten ; but 
 in a deed as well as in a will, whatever the conveyance be, if the 
 ancestor takes an estate for life, and in another part of the convey- 
 ance the limitation is to the heirs of his body, that unites with his 
 former estate for life, and becomes an estate tail in him : if therefore 
 the words for life, for form or nicety's sake, should be put into 
 this conveyance, it would not change it. — As to the personal estate, 
 it is a limitation to one for life and the heirs of his body; which vests 
 absolutely, whether so intended by the testator or not. — The plaintiff 
 is therefore entitled to have the lands conveyed to him in tail, and 
 the personal estate to his own use absolutely. 
 
 Stanley v. Stanley, 16 Ves. 491, 1809. In this case, lands were 
 devised to trustees, their heirs and assigns, upon trust, that they and 
 the survivor of them, and the heirs and assigns of such survivor, 
 should receive the rents and profits of the said estates until Thomas 
 Massey should attain the age of 21 years ; and upon further trust, 
 that they should, immediately after his attaining that age, convey and 
 assign all the said estates for the uses after mentioned, viz. to the 
 use of the said Thomas Massey and his assigns for life, with remain- 
 der to preserve contingent remainders ; with remainder to the first 
 and other scma of the said Thomas Massey in tail male, with remain-
 
 312 LAW TRACTS. 
 
 tiers over.— Sir W. Grant, M. R. It is clear that in this case, the 
 trustees took in the first instance the wliole legal interest ; the trusts 
 upon which they were to hold it, were — to receive the rents for a 
 particular purpose, until Thomas Massey should attain the age of 
 21 years ; and at that age, to convey to him for life, with several 
 remainders over. One question was, what interest Thomas Massey 
 took — whether a vested estate or a contingent interest for life ? My 
 opinion upon the authority of a great numher of decisions, (from 
 Boraston's case, 3 Co. 19, downwards) is, that he took a vested 
 remainder for life, after an estate in the trustees for so many years 
 as his minority might last. 
 
 This case turns more upon the distinction between trusts executed 
 and executory, than upon the difference between a legal and equi- 
 table estate in the trustees. His Honour, it is presumed, intended to 
 declare that the whole legal estate was vested in the trustees to 
 enable them to perform their trust, viz. to convey ; which conveyance 
 he declared should be to the use of themselves during the mino- 
 rity of T. Massey ; with remainder to T. Massey for life, with 
 remainder to trustees, (themselves or others,) during the hfe of 
 Thomas Massey, in trust, to preserve contingent remainders, with 
 remainder to the first and other sons of T. Massey in tail — in short, 
 that the trustees were to make an actual conveyance ; to enable them 
 to do which they necessarily took the legal estate. 
 
 If the trustees are to ^x/?/ annuities out of the rents and profits, 
 they will take the legal estate in fee. 
 
 Gibson v. Rogers, Amb. 93 ; s. c. 1 Ves. 485. In this case, a 
 testator devised all his freehold, leasehold, copyhold, and personal 
 estates to trustees ; to hold to them, their executors, administrators 
 and assigns, in trust to pay certain annuities and legacies out of the 
 rents and profits of his personal estate, and for want of sufficiency 
 of personal estate, then out of the rents and profits of his said real 
 estate : and as for and concerning all the rest, residue, and remainder 
 of his said real and personal estate, of what nature or kind soever, 
 after provision made for payment of the said annuities and legacies, 
 he gave the same to such child or children as his daughter Frances 
 should have of her body, share and share ahke ; but in case his said 
 dauo-hter Frances should die without issue, then he gave the same, 
 after payment of the said annuities and legacies, unto Christopher 
 Jefferson and Joseph Pike, share and share alike ; they taking the 
 name of Shepherd. It was objected, that the estate in the trustees 
 was only a trust quousque, to satisfy particular purposes ; whereby
 
 LAW TRACTS. 81.3 
 
 being answered, the legal estate devolved on the heir-at-law, and 
 that it would be hard to consider him as a trustee, for the person in 
 remainder, as to the intermediate profits. — Lord Hardwicke: I think 
 this is a trust throughout, for if the personal estate is not sufficient 
 to satisfy the legacies, the real estate must be sold for that purpose ; 
 and that may possibly happen to be the case, for several of the 
 legacies are to be paid within one year, which cannot be done out of 
 the annual rents. Whenever the words " rents and profits " stand 
 alone, without the word " annual," or " mortgage," or "leasing," or 
 some words of restriction to confine the sense of the preceding 
 words to annual profits, they are considered as including the land 
 itself — thus, by a devise of " rents and profits," the land itself will pass 
 at law ; therefore I consider a sale to be directed by the words rents 
 and profits ; and to make a sale, the trustees must have the inherit- 
 ance in them ; and though only part of the inheritance need be sold, 
 yet the Court will not make fractions, and consider them as trustees 
 for only part of the inheritance, but of the whole ; — such a possibility 
 is sufficient to consider them as trustees throughout, and whoever 
 will be entitled on the contingency, must have a conveyance of the 
 legal estate from them. The decision was accordingly. 
 
 This case, it is presumed, warrants the position, that, if a gross 
 sum be directed to be raised, and paid at a particular time out of 
 the rents and profits, which the annual rents will not be sufficient to 
 effect, the trustees may sell such part of the legal estate as will 
 enable them to raise the sum by the time directed. In the above 
 case, the annuities would probably have swallowed up one half of 
 the annual rents, and the legacies were to be paid within a twelve- 
 month after the testator's death. It could not, therefore, be possible 
 that the testator meant the legatees to wait for the leisurely payment 
 of their legacies out of the rents as they accrued due, but the devise 
 must be viewed as containing a trust to raise the legacies out of 
 the land, which at all times enables the trustees to make a sale 
 or mortgage ; and consequently, gives them the legal estate : 
 2 Vern. 153; 1 Atk. 421. These observations are further ejiforced 
 by the case of — 
 
 Wright V. Pearson, 1 Eden. 119 ; s. c. Amb. 358, 1757 — where it 
 was held, that if trustees are directed to raise a gross sum, they take 
 the legal estate in fee, to enable them to raise the sum in the most 
 efficient way, viz. by sale and conveyance of the fee simple. 
 
 H. Rayney, by his will, devised the estate in question to two trus- 
 tees, their heirs and assigns for ever, in trust, out of the rents, 
 
 2 p
 
 .'>1 I LAW TRACTS. 
 
 issues and profits, to raise 5001. with interest, to be equally divided 
 between his five grandcliiklren, and subject thereto to the use of his 
 nephew, Thomas Rayney, and his assigns for his life, remainder 
 [as it shoidd seem to different] trustees, to support contingent re- 
 mainders; remainder to the use of the heirs male of the body of the 
 said T. Rayney lawfully to be begotten, and their heirs : provided, 
 that in case his said nephew T. Rayney should die without leaving 
 any issue male of his body living at his death, then, and in such case, 
 the said testator subjected the premises to the payment of 100/. each 
 to his two nieces, Frances and Priscilla Rayney ; and he enabled his 
 said trustees, after the death of his said nephew, to raise and pa?/ the 
 same; and for default of such issue male of T. Rayney, the said tes- 
 tator devised his said estates to the use of his five gra dcliildren 
 equally, in fee. The principal question was, whether T. Rayney 
 took an estate for life, or an estate tail : and that question produced 
 a second, whether it plainly appeared, that the heirs of the body of 
 Thomas should take an estate in fee, by purchase, or an estate tail 
 by limitation and descent, from their father. But a previous ques- 
 tion was made, whether the legal estate remained in the trustees, or 
 was executed in the devisees by the statute of uses. 
 . Lord Keeper Northington — Whenever a certain express in- 
 terest is devised, I conceive it is not in the power of this Court, by 
 construction, to make the devise pass any other interest than what is 
 expressed. For instance, a man devises his lands and tenements to 
 J. S. for twenty years, for the payment of his debts and legacies only; 
 and after payment thereof, to J. B. and his heirs. After payment, 
 this Court will declare the term to be a trust for J. B., and to be as- 
 signed accordingly ; but the Court cannot declare, that the term de- 
 termined without payment : so, if it had been a devise to J. S. for 
 life, the Court cannot make it a chattel, much less can it be done in 
 case of a devise in fee ; for that construction would change the trus- 
 tees' estate contrary to the testator's intent. The testator intended, 
 that the devisee and his heir should execute the trust; can the Court 
 say no, we will transfer it to the executors ? [It is said to have done ji 
 so, ante pp. 295 &296.] In the case of Bosworth v. Farrard, (Carter, % 
 97,) lands were limited to trustees and their heirs, after the death of 
 the Earl, to raise for the daughters of Lord Fitzwarren 4,000/. a piece. 
 The question in tliat case was, whether those lands were within a 
 power of jointuring. Bridgman C. J., in giving his judgment, (fo. 107,) 
 says, " I shall not need to prove, that in this case the whole fee simple 
 is limited to the trustees, till the portions are raised, though he that 
 argued first seemed to be of opinion, that all was but a chattel; but 
 
 I
 
 LAW TRACTS. S\o 
 
 it is clear, it is a fee simple. If land be conveyed to the use of A and 
 B, and their heirs till 1,000/. be raised, it is a fee simple conditional :" 
 Cart. 97. I must not construe the will in that sense ; for then I 
 should make the remainders over void, as nothing can be limited after 
 a, fee; but I must take it as a devise to trustees of a pure fee, subject 
 to divers trusts for divers persons. That reasoning is confirmed by 
 Lord Hardwicke in Bagshaw v. Spencer ; though, indeed, there was 
 in that case the additional circumstance, that the trustees might sell. 
 I am of opinion, that in this case, the estate is not executed by the 
 Statute of Uses ; because I think that all trusts were not executed 
 by that statute, l3ut only such as were held by trustees for the im- 
 mediate use of another ; and not where the trustees were to perform 
 a trust themselves, subject to which trust others were to have the 
 benefit of the estate. — Trustees take a chattel interest only ivhere the 
 interest [limited to them] is uncertain : here, the limitation is to them 
 and their heirs ; therefore, they take the fee : Amb. SQ2. 
 
 This inference is not universally correct. An estate may be de- 
 vised to trustees, without more, in trust to sell, which gives them the 
 fee, without the word heirs. So here, the trust was to raise the le- 
 gacies out of the rents and profits, not, indeed, expressly by sale or 
 mortgage of the land ; but — as it seems impossible to ascribe to the 
 testator an intention, that the legacies should be paid piece-meal 
 out of the annual rents and profits, but at once, when the time for 
 payment arrived, viz. within a twelvemonth ; that being the usual thne 
 for payment of legacies : — the words, rents and profits, were alone 
 sufiicient to have given the fee, without the word heirs, as we have 
 seen in the two preceding cases. 
 
 In the next case the trust was, to let the land on lease ; and it was 
 held, that the trustees took the fee to enable them to do so. It was 
 also denied, that a devise can be construed by subsequent events, as 
 appears to have been done in Doe v. Simpson, 5 East, 171, infra. 
 
 Doe d. Tonqjhi/ns v. Willan, 2 Barn. & Aid. 84, 1818. In this 
 case, the testator devised his estates to certain trustees, their heirs 
 and assigns, upon trust, to demise or let the same for any term they 
 should think proper, at the best rents; and upon further trust, to 
 pay one-third of the rents to the testator's widow, for life, and the 
 other two thirds and the whole, after his widow's death, to his daugh- 
 ter, (a married woman,) and her assigns for her life, for her own se- 
 parate use and benefit ; and, after the decease of his daughter, he 
 devised the said estates to her children equally, with benefit of survi- 
 vorship ; and in case his daughter died without issue, the testator
 
 ;Jl(; LAW TRACTS. 
 
 willed his freehold estates to go to his own heir, as if he had died intes- 
 tate and without issue.— The heir of the surviving trustee made a 
 lease for 21 years to the defendant, Willan, and afterwards the tes- 
 tator's daughter died without issue. The testator's heir then com- 
 menced an ejectment against the defendant ; and the question was, 
 whether the heir of the surviving trustee had the fee under the above 
 will, so as to enable him to grant a valid lease of the legal estate. 
 
 It was contended, that at the death of the testator's daughter, in 
 the events that had happened, the necessity for the trust ceased ; and 
 tlierefore, that the estate of the trustees determined upon her death : 
 and that the estate of the trustees was then to be determined might 
 be collected from a subsequent part of the will, where, after provi- 
 sion for the daughter, through the intervention of trustees, the lan- 
 guage of the will was changed, and the estate was then left to the 
 children of the latter, and not to trustees for their use. It was true 
 that they were enabled to make leases for such term as they thought 
 proper ; but, admitting, that under these words they might grant 
 leases for ninety-nine years, still this clause might be construed as 
 creating a power, and then such leases might take effect out of the 
 power, and not out of the estate ; and such a construction would be 
 consistent with the other parts of the will. The last clause was the 
 most important ; for the testator, after providing for his wife and 
 daughter, and her children, directed, that after the death of his 
 daughter without issue, his estate should go to his heir-at-law 
 as if he had died intestate and without issue, which could not be the 
 case if the fee were held to be in the trustees. 
 
 The Court, however, was of opinion, that the trustees under this 
 will took an estate in fee. The estate was given to them and their 
 heirs, in trust, to demise all the freehold estates for any term they 
 should think proper. This was not a power ; a power was an autho- 
 rity to dispose of the estate, or of the interest of another person ; 
 but this was given to thein to let for any term that thei/ (the trustees) 
 might think proper : theij were to receive the rent for a time, at least, 
 because they were to pay part, viz. one-third, to the widow during 
 her life. The lease, therefore, was to be made for rents payable to 
 them, and not to another person for whom they are trustees. Not 
 only, therefore, from the words of the will, which were words of trust, 
 ])ut also by the circumstance of the rents being receivable by the 
 trustees, it appeared to the Court, that the leases were to operate out 
 of the estate given to the trustees themselves; and such leases could 
 not be valid, unless the trustees took an estate more than commensu- 
 rate wilh their duration — they mu&t have a reversion; and, as by the
 
 LAW TRACTS. 
 
 317 
 
 will, they had the right to grant leases for any term of years, it fol- 
 lowed, that in order to make such leases valid, they must take an 
 estate in fee. It could not depend upon subsequent events, whether 
 they were to take an estate in fee or not ; because they must take 
 that estate, in the first instance, on the death of the testator, or not at 
 all. Not being able to see what less estate than the fee the trustees 
 took, or even what less estate would satisfy all the objects of this 
 will, the Court felt bound to give effect to the testator's first words, 
 which were free from all ambiguity, and by which the trustees took 
 a fee. — Judgment accordingly. 
 
 This construction appears a little strained on general principles, 
 but in favour of an eighteen years' possession under the lease, the 
 purpose of justice required that the trustees should have the fee. 
 The rule is certainly true, that the interpretation of a will should be 
 as if read the moment after the testator's decease ; but a slight ac- 
 quaintance with the cases will show, that the judgments of the courts 
 are materially affected by the knowledge of subsequent events. 
 
 So it has been held, that if trustees are to repair, they must have 
 the legal estate. 
 
 Sha]jland v. Smith, 1 Bro. C. C. 74, 1780. Testator devised the 
 lands in question to three trustees, [not, and to their heirs] upon 
 trust, that they and their heirs should yearly and every year, by 
 equal quarterly payments, by and out of the rents and profits of the 
 said premises, after deducting rates, taxes, repairs and expenses, pay 
 such clear sum as should then remain to his brother Christopher, 
 and his assigns, during his natural hfe ; and after his decease, to the 
 use and behoof of the heirs male of the body of the said Christopher 
 lawfully to be begotten, as they should be in priority of birth, with 
 remainders over. Lord Thurlow was of opinion, against Eyre Baron 
 and Master Holford, that the trustees being to pay the taxes and 
 repairs, they must have an interest in the premises to enable them to 
 raise such payments, if necessary ; and his Lordship held, that the 
 legal est-ate for the hfe of Christopher was in them. 
 
 In another case, the devise was to trustees, and the testator ap- 
 pointed a receiver, with a declaration, that he should be account- 
 able to the trustees, and have a salary. The trustees were held to 
 take the fee to enable them to audit and control the receiver's ac- 
 counts. 
 
 Somerville v. Lethbridge, 6 T. R. 2\o, 1795. After bequeathing 
 certain legacies, testator devised all the rest of his estates and
 
 ol8 LAW TKACTS. 
 
 lands both in possession and reversion, and all his reputed manors and 
 fee-simple estates, and all other his copyhold and leasehold estates, 
 to Somcrville and Luttrell, and the survivor, &c., in fee, in trust to 
 preserve contingent remainders ; as to all his fee-simple, copyhold 
 and leasehold estates, in trust, to and for the use of his great nephew, 
 J. S., for the term of 99 years, if he should so long live ; and after 
 that term, to the use of the first, second, third, and fourth sons of the 
 said J. S.J and the issue male of their bodies lawfully begotten, for 
 the like term of 99 years, as they should be in seniority of birth, with 
 remainders over. The testator also appointed the said Somerville and 
 Luttrell trustees of his will, to and for the several trusts and uses 
 before mentioned : and he thereby appointed Southey to be a re- 
 ceiver of the rents and profits of his estates ; and ordered hun to pass 
 an account annually to the said trustees for the income and produce 
 of his estates, that such produce might be placed out on government 
 securities until lands of inheritance could be purchased, which he 
 empowered his trustees to do whenever they should think proper, so 
 as the same be applied and settled to the same uses as his other lands 
 before settled ; and, for his so doing, gave Southey a salary of 20/. 
 a year. The devisee, J. S., at the time of the testator's decease, was 
 a minor, and the present suit was instituted to obtain the sanction of 
 the Court to the purchase of an estate out of the accumulated rents and 
 profits. The will was referred to the Court of King's Bench, to as- 
 certain the interests of the several parties ; and the 8th question in 
 the cause was, whether Somerville and Luttrell took any, and what 
 estate under the said will. The Judges certified as follows : " We are 
 of opinion, that Somerville and Lvittrell took a fee simple in the free- 
 hold and copyhold estates, according to their respective natures, and 
 the absolute interest in the leasehold estates devised to them by the 
 will of the testator, subject, however, to the trusts of the said will ; 
 and that none of the subsequent limitations are limitations of uses 
 executed by the statute." 
 
 It is obvious, from the direction respecting the receiver, that the 
 testator in this case intended his trustees to take more than a mere 
 passive trust. They were to audit the receiver's accounts, and pur- 
 chase lands. If the fee had been given over on the devisee's coming 
 of age, there would have been ground to contend, that the trusts 
 would have been satisfied if the trustees took a chattel interest only ; 
 but the fee was not passed out of the trustees to any other person, 
 so that it was impossible to hold, that they had less than a fee. 
 
 And the trustees have been held to take the legal estate, from the
 
 LAW TllACTS. 
 
 319 
 
 circumstance of their having to signify their approhation to receipts, 
 which seems to suppose that the money expressed to be received, 
 and the account respecting it, had been settled and audited by them ; 
 which brings this case within the principle of the preceding one. But 
 the Judges did not, in this case, say what quantity of interest the 
 trustees took. 
 
 Gregory v. Henderson, 4 Taunt. 772, 1813. Testator devised to 
 his good friends and trustees, A and B, several houses, and all his 
 monies in the funds or otherwise, upon trust, to permit and suffer his 
 wife to have the free and uninterrupted possession and use of the inter- 
 est of the said mbnies in the funds or otherwise, and rents and profits 
 arising from the said houses during her natural life, if she should con- 
 tinue his widow and unmarried ; and the testator declared, that her re- 
 ceipts for the said rents, interest and profits, with the approhat'ion of 
 any one of his said trustees, should be good discharges ; she his said 
 wife providing for, and educating properly all his children, and like- 
 wise paying to Miss M. Jones an annuity of twenty pounds half yearly. 
 The question was, whether the use was executed in the testator's 
 widow, or remained in the trustees. Heath J. at the trial thought, 
 that as there were receipts to be approved, and annuities to be paid 
 by the trustees ; that is, as there was something to be done by the 
 devisee, the use was not executed in the widow ; and under his di- 
 rection, the jury found a verdict for the plaintiff. On motion for a 
 new trial, Chambre J. said : In this case the legal estate is in the trus- 
 tees : to determine that, we must look to the intent of the will ; and 
 it seems pretty clear, that the intent was not to give the defendant 
 the legal estate. It is true, there is very little left for the trustees to 
 do durinsf her widowhood ; but if it was intended that she should 
 have the legal estate, there would have been no need of any trustees 
 at all. The testator making the approbation of the trustees neces- 
 sary to her receipts, I think, shows it was not intended to give the 
 defendant a legal estate. I think, therefore, there is no reason for 
 granting the new trial ; and Gibbs J. thought the rule had been mis- 
 conceived. Though an estate be devised to A and his heirs, to the 
 use of B and his heirs, the Courts will not hold it to be a use exe- 
 cuted, imless it appears by the whole will to be testator's intent, that 
 it should be executed. The courts will rather say, the use is not 
 executed, because the approbation of a trustee is made necessary ; 
 than that the approbation of a trustee is not necessary, because the 
 use is executed. The very circumstance which is to discharge the 
 tenants, is the approbation of one of the trustees: " I leave my wife 
 to receive the rents, provided there is always the control of one of
 
 3:^0 LAM- TRACTS. 
 
 the trustees upon her receipts." The testator, therefore, certainly 
 meant, tliat some control should be exercised ; and what could that 
 control be, except they were to exercise it in the character of trus- 
 tees ? I agree, therefore, that the legal estate is in the trustees, and 
 that the rule ought not to be granted. — Rule refused. 
 
 If the trustees have a direct trust to sell, they necessarily take the 
 fee, which cannot be controlled by subsequent words. But this 
 case, it is to be remembered, arose on a deed, and though a different 
 construction would not, it is conceived, prevail on a will, yet there 
 may be evidence in a will, that the testator meant the sale to take 
 place only under certain circumstances, which, not arising, the power 
 would not be wanted, and so the estate fail: this has the appearance 
 of construing the will according to subsequent events, and to a 
 limited extent, that, it is submitted, is a course which the courts for 
 the furtherance of justice sometimes take ; they at least incline to a 
 construction, which will meet the justice of the case arising on sub- 
 sequent events, which is much the same thing. The case succeeding 
 the one next cited, (Doe v. Simpson,) is a direct authority for this 
 position, but that case had been denied to be law. 
 
 Keene v. Dearden, 8 East. 248. Lord Byron, being indebted, 
 conveyed certain estates to and to the use of trustees, and their heirs, 
 in trust to sell, with a proviso, that until sale of the inheritance, the 
 rents should be received by the persons entitled under former settle- 
 ments. It could not be doubted on these words, that the use was 
 executed in the trustees, for they stood trusted to sell, and must 
 necessarily take the fee for that purpose. But it was urged, that 
 these words were controlled by the proviso, appropriating the rents 
 till sale, and that they were of equal import in the place where they 
 stood with the word inheritance ; and consequently, that the trustees 
 had but a mere power of sale, and no estate. Lord Ellenborough, 
 however, considered the words " rents, issues, and profits," to have 
 been used simply — in contradistinction to the word inheritance, and 
 in that view the wording of the proviso confirmed the construction, 
 which naturally arose from the other parts of the deed, and showed 
 that the meaning of it was, to leave the legal estate in the trustees, to 
 whom it was before limited for the general purposes of the deed — 
 stipulating only that the rents, issues, and profits as contradistin- 
 guished from the inheritance, should, until a sale^ took place, be 
 received by those who were beneficially entitled to them. It was 
 held, that the legal estate in fee remainded outstanding in tlie 
 trustees.
 
 LAW TRACTS. ,321 
 
 We now come to a case of a very important character, and one which 
 has received considerable attention, from the supposition tliat it is 
 founded on an anomalous and erroneous principle : namely, that the 
 Will should be construed according to subsequent events: such a 
 position is not directly borne out by the case, but the Court 
 seemed inclined to hold, that the purposes of the trust being an- 
 swered, the estate of the trustees should cease. The ground, how- 
 ever, of decision was, the presumption of a re-conveyance, which 
 undoubtedly afforded a firm footing. 
 
 Doe d. White v. Simjjson, 5 East, 162, 1804. Testator devised 
 certain lands to three trustees, and the survivor of them, and the 
 executors and administrators of such survivor, intrust, that they, out of 
 the rents and profits of the said estates, should pay one annuity of 
 50/. a piece, to his two sisters for their lives, and a sum of 800/. to 
 his brother's children; and, subject to such annuity and sum, the tes- 
 tator devised the said estates to A B for life, with remainder to his 
 children, with remainders over, with remainder to his own right heirs ; 
 and the said testator gave and granted unto his said three trustees, 
 and the survivor of them, and the executors and administrators of 
 such survivor, full power and authority to grant any building lease, 
 or any other lease, as often as there should be occasion, of the said 
 estates so devised to them in trust as aforesaid ; and the said testator 
 gave his trustees 10/. per annum each, as long as they continued 
 to act. 
 
 The testator died in 1754. The first tenant for life, as also the 
 annuitant, were dead, and the sum of 800/. was raised. The execu- 
 trix of the surviving trustee had granted a lease to the defendant, 
 M'hich the first remainder-man in tail now sought to set aside. This 
 lease had been found by a jury, on trial at the Assizes, to be void, 
 as not having been made pursuant to the leasing power contained in 
 the will ; but it was contended by the defendant, that the ejectment 
 was ill brought in the name of the lessor of the plaintiff (the first 
 remainder-man in tail,) for that the legal estate was not in him, but 
 in the heir-at-law of the surviving trustee. The Judge, (Lord Ellen- 
 borough,) however, conceived that the trustees took the legal estate 
 for no longer time than the lives of the annuitants, and until the 
 gross sum of 800/. was raised ; but if that were otherwise, yet, after 
 all the purposes of the trusts were at an end, his Lordship said, 
 he would direct the jury to presume a re-conveyance, if necessary, to 
 the persons that were beneficially entitled under the will. It was 
 then objected by the defendant's counsel, that the power of leasing 
 
 2 Q
 
 .'?^!2 LAW TitArT«;. 
 
 was intended by the testator to be given to the trustees, during the 
 continuance of the successive particular estates carved out of the 
 inlicritance ; and tliat tlie exercise of such a power necessarily re- 
 quired a seisin in fee in the trustees to support it : wherevipon a 
 verdict was entered for the plaintiff, with liberty to the defendants 
 to move to set it aside, and enter a nonsuit. 
 
 On motion now made for that purpose, Lord Ellenborougii 
 delivered the opinion of the Court: — This lease has been found by 
 the jury to be void, as not having been made pursuant to the leasing 
 power contained in the will ; but it was contended by the defendant, 
 that the ejectment was ill brought in the name of the lessor of the 
 plaintiff, the first remainder-man in tail, for that the legal estate was 
 not in him, but in the heir-at-law of the surviving trustee. The case 
 principally relied upon by the defendant's counsel, in support of 
 the proposition that the trustees took an estate in fee, was the case 
 of Jenkins v. Jenkins, (Willes, 650,) where the Lord Chief Justice 
 observed, *' Whether he has an estate for the life of the annuitant 
 only or in fee, we need not determine in this action, because the 
 annuitant is alive ; but we are rather inclined to think, that he took 
 an estate in fee, because there is no one case where a devisee by virtue 
 of the word pa?/ing, has been adjudged to have a larger estate than for 
 his own life, in which it has not also been adjudged, that he took an 
 estate in fee." But in the present case, nothing turns on the import 
 of the word paying, nor was the payment directed by the will to be 
 made by the trustees out of the estates devised, so as to be a personal 
 charge on them, but out of the rents and profits only, which words, 
 in a multitude of cases, have been holden not to give more than an 
 estate for life, as the devisee cannot be a loser in respect of such a 
 charge. Sir W. Cordal's case (8 Co. 96,) establishes the proposition, 
 that if an estate be devised to executors generally for payment of 
 debts, they will take only a chattel interest: from whence it appears 
 to be a fair inference, t/iat where the purposes of a trust can be 
 anmcered by a less estate than a fee simple, that a greater interest than 
 is sufficient to answer such purpose shall not jxtss to them ; but that 
 the uses in remainder, limited on such lesser estate so given to them, 
 shall be executed by the statute. I have not met with any case in 
 which the trustees have been holden to take any other interest than 
 either a chattel, an estate for life, or in fee ; but I see no reason why 
 they may not, in order to answer the purposes of the trust, take an estate 
 by implication, for the lives of the annuitants, with a term of years in 
 remainder, sufficient for the purpose of raising out of the rents and 
 profits the sum of 800/., directed to be paid out of the same. It has
 
 LAW TUACTS. 323 
 
 been argued on the part of the defendant, that, from the terms and 
 object of the leasing powers, a necessary inference arises, that the 
 testator meant to give his trustees an estate in fee. It does not how- 
 ever appear to me, that the leasing power fairly affords any such 
 inference : the testator gives them power and authority to grant buil- 
 ding or other leases, as often as there should be occasion, of the said 
 estates so devised to them in trust as aforesaid ; hereby evidently 
 connecting the execution of the power, with the particular trust 
 estates before created, and exhibiting an intention that the leasing 
 power should be merely commensurate therewith, and auxiliary 
 thereto. The testator also seems to have contemplated the period of 
 the trust, and, of course, the trouble of attending the execution of it, 
 as not being likely to endure beyond the lives of the trustees : a 
 yearly allowance made to trustees so long as they should act, is not 
 very consistent with an intention in the testator to impose that 
 trouble upon the heirs of the same trustees, without any recompense 
 made to them for their trouble, and that for ever. And it appears 
 to me, that if we should construe the leasing power as continuing 
 beyond the duration expressly assigned to the trusts above men- 
 tioned, we should do violence to the fair and obvious meaning 
 of the terms in which that power is couched. Upon the whole, 
 therefore, we are of opinion, that the trustees took an estate by 
 implication for the lives of the annuitants, with a term of years in 
 remainder, for the purpose of raising the sum of 800/. ; and that 
 after those trusts were (as they appear in evidence to have been) 
 satisfied, the several limitations for life and in tail took effect as 
 legal limitations, and of course that the lessor of the plaintiff (the 
 remainder-man in tail) had such a legal estate in the premises at the 
 time of bringing this ejectment, as will enable him to make the 
 demise laid in the declaration. — Rule refused. 
 
 It has been said, that this case of Doe v. Simpson, has, in effect, 
 been overruled by the late case of Doe v. Willan, (2 B. & A. 84.) 
 So far as it proceeds on the notion that the trustees took a partial 
 interest only, or that wills may be construed by post mortem circum- 
 stances, the judgment may be justly questioned ; but it will be obser- 
 ved, that the adjudication is placed on a very different footing, viz. 
 the presumption of a reconveyance, which presupposes that the 
 whole legal fee was orighially in the trustees, but has been since drawn 
 out of them by a conveyance which is not forthcoming ; s and there 
 
 a Arg. 2, 4 Madd. Rep. 74.
 
 324 LAW TRACTS. 
 
 certainly was ground for the presumption of a re-conveyance — forty- 
 two years having elapsed from the death of the last annuitant. As to 
 post morion circumstances, it seems to the writer pretty certain 
 that the judges Avill look at them; for, notwithstanding the evidence 
 afforded by many of the preceding cases, such a conclusion seems 
 still further warranted by the late case of Murthwaite v. Jenkinson, 
 (2 B. & C. 384,) where the Lord Chief Justice said, he could not 
 give an answer to the question, whether the trustees took the legal 
 estate or not, iint'd he had been informed whether the funds, on which 
 the annuities and legacies ivere collaterally charged, ivere in existence, 
 whether the debts were paid, and whether the annuitants were 
 living. 
 
 SECTION V. 
 
 Recapitulation, and general rules. 
 
 From what has been recited it appears that a devise to trustees 
 their heirs and assigns, to the use of them their heirs and assigns, 
 will give them the legal estate in fee : So, a devise to and to the use 
 of them, will have the same effect. '* In like manner a devise to three 
 persons their heirs and assigns, in trust to receive the rents and 
 profits, and pay them over to a third person, vests the legal estate in 
 the trustees in fee, or for life, according to the nature of the trust. •'^ If 
 they are directed to receive the rents during A's life, and pay the 
 same to him, or simply to pay the rents and profits to A, and, after 
 his decease, the devise is to another person, they will take the legal 
 estate for A's life only, and not in fee. There is no distinction 
 between a devise in trust to receive and pay the rents, and simply 
 to pay the rents ; for if the trustees have to pay the rents they must 
 necessarily receive them. But if there is nothing in the devise which 
 indicates an intention in the testator, that his trustees shall actually 
 receive the tents, they will take merely a seisin, and no estate, which 
 will be executed or passed to the person for whom they stand trus- 
 ted immediately upon the testator's decease. Thus if the devise be 
 in trust to permit a person to receive the rents and profits, the 
 Court considers the best mode of permitting that person to receive 
 the rents is, by giving him the legal ownership ; and they hold 
 
 Ante p. 277, 297, 300. w Ante i>. 281, 301, 3.
 
 LAW TRACTS. 
 
 P.O/J 
 
 that, under such a devise, the cestui que trust takes the use or legal 
 estate, and the trustees nothing. One exception is allowed to this gene- 
 ral rule, namely, that if the trustees are to jjermit a married woman 
 to receive the rents and profits for her separate use, the trustees 
 necessarily take the legal estate during her life ; for othervi^ise the 
 husband, and not the wife, would be entitled to receive the rents, 
 which would be contrai'y to the express purpose of the trust. If the 
 words separate use are omitted, and there is nothing to induce a pre- 
 sumption that the testator meant to give the wife an exclusive 
 enjoyment, the use will be executed in her, and the husband will 
 thereby become seised in her right during coverture, and will, con- 
 sequently, be entitled to the subject of devise during coverture. 
 Words limiting the trust to the life of the wife, do not appear to be 
 essential. (See Bush v. Allen, «/(/r« p. "-^^Q}.) But whether the trustees 
 take the legal estate in fee or for life, must depend on the import of 
 the words introducing the subsequent devise. If the trust be in 
 the common form, to pay to or otherwise permit and suffer another 
 person to receive the rents, that person will take the legal estate ; 
 because, the trusts being inconsistent, the latter trust prevails.'^ 
 
 If trustees have a duty to perform, they generally take the legal 
 estate, but whether in fee, or for life, depends upon the nature of tlie 
 trust. The uniform rule is, to give such a construction to the de- 
 vise as that the trustees shall not take the legal estate, if the objects 
 and purposes of the trust do not clearly require it ; and when it is 
 requisite that they should take the legal estate, then that they shall take 
 only such portion of it as is necessary to answer the purposes of the 
 trust. If the trust be to pay debts, or to receive the rents during the 
 minority of children, the Courts strongly incline to a construction 
 which will give the trustees chattel interests only, that species of 
 estate being generally found sufficient to answer the purpose of the 
 trust ; but if the debts cannot be paid without a sale, and the trus- 
 tees are authorized to raise them out of the rents and pjofits, they 
 must of necessity take the fee, to enable them to sell, convey, raise 
 the money, and pay the debts — duties of the most active and 
 efficient nature. 
 
 So, generally, if the trustees are directed to pay any gross sum, or 
 even annuities, out of the rents and profits, they will take the legal 
 estate ; for they can only pay by raising the money ; and a trust to 
 raise money out of the rents and profits gives the fee — the words 
 rents and profits being equivalent to the entire interest in the land. 
 
 •1 Ante p. 284—5. 
 
 k
 
 S2G LAW TKAITS, 
 
 Thus in Bush r. Allen, 5 Mod. 0.'j-101 ; 1 Salk. 228,) it was held, 
 that if a testator devise the issues nnd profits of certain lands to his 
 wife, to be paid into her own hands by his executors, the executors 
 shall take the lands in trust to receive the rents and profits to the 
 use of the wife for life ; and Holt C. J. observed, that a devise of 
 the rents and profits was a devise of the land itself. In this case, the 
 trust did not require that the executors should take more than an 
 estate pur outer vie; but, if the trust had been to pay debts, the 
 words " rents and profits " would have undoubtedly carried the land 
 in fee. 
 
 Almost all trusts which cease with a minority, confer chattel inr 
 terests only on the trustees. Some exceptions to this rule will be 
 found in the second section of this Tract. When it is said, that tlie 
 trustees take chattel interests, it is not clearly settled that such irir 
 terests will descend to their executors when the devise is to them and 
 their heirs. A few observations on this point have been hazarded 
 ante p. 296. If the trust be to sell, and pay debts, it seems that if the 
 debts are paid by the fund naturally appropriated for that purpose, 
 viz. the personal estate, so that there is no occasion for the trustees 
 to exercise their power of sale, and the estate is devised, subject as 
 aforesaid, to the use of one person for life, with remainders over, &c. 
 the legal estate will be vested in the devisee for life, and the trustees 
 will take nothing. If they have occasion to sell part of the estate, 
 they will take the fee in that part, and nothing in the residue : in 
 short, a devise of this description may be likened to a devise to one 
 in fee, with an executory devise over ; or rather, to a devise in default 
 of appointment, which executes an estate in the devisee immediately, 
 subject to be divested by the execution of the power. In this instance, 
 therefore, the interest of the trustees may be viewed more as a power 
 than as an estate ; and there are cases in the books which raise nice 
 distinctions between poivers to let or sell, and trusts for that purpose. 
 Trusts to sell, convey, repair, let, to manage the estate, to audit or 
 control accounts of the rents or profits, to appoint a receiver, or to 
 perform any active duty, for the most part give the trustees a legal 
 estate of some quality, but the exact portion is governed by the 
 circumstances of each particular case. (See ante sec. in.) But an 
 inference clearly arises, from the limitation of the estate to the 
 seisin trustees during the life of the tenant for life, that the whole lega' 
 fee could not be intended to vest in the trustees in the first instance, 
 as the testator has subsequently limited to the same persons a less 
 estate. Thus, in Doe v. Collier,'' the devise was to a trustee sau\ 
 i-M 1 East, liji).
 
 LAW TRACTS. 327 
 
 his heirs, in trust to pay an annuity to his wife during her life, and 
 the overplus to P. after the decease of his wife, to the use of P. for 
 life, with remainder to the said trustee and his heirs during the 
 life of P. in trust to preserve contingent remainders, with remain- 
 ders over: — It was held, that the trustees took the legal estate 
 for the life of the annuitant only. But if the words, " during the life 
 of the preceding tenant for life," are omitted, it is to be remembered 
 that a contrary inference does not always arise ; because, in a will, the . 
 Court will supply those words, if the intention seems to require it, 
 though in a deed, it is said they never will do so.^^ Thus in Doe 
 dem. Compere v. Hides, (7 Term Rep. 433,) a testator devised 
 lands to A. C. for life, with remainder to John Compere for life ; 
 and, after the determination of that estate, to trustees and their 
 heirs, (not in words confining the estate to the life of John Com- 
 pere,) in trust to preserve contingent remainders ; and after the 
 decease of John Compere, to the use of the first and every other 
 son of John Compere sussessively in tail male ; and, in default of such 
 issue, to Anthony C. for hfe ; and after that estate determined, to 
 the said trustees and their heirs in trust to preserve contingent re- 
 mainders ; and, after his decease, to the use of his first and other 
 sons successively in tail male, with remainders over. It was decided, 
 upon the ground of intention, that the trustees did not take the 
 fee, but only estates in remainder during the lives of the particular 
 tenants. 
 
 In Chapman v. Blisset, (Ca. Temp. Talb. 145,) the general rule is 
 thus ably propovmded. 
 
 J. B. devised all his real and personal estates, to three trustees, 
 their heirs and assigns, in trust to pay his son Isaac, 37/. (juarterly ; 
 and if he married with consent, then double the sum : if he should 
 have any children, he gave the residue of the rents of his said trust 
 estate to be applied, during the hfe of his son, for the education of 
 such child or children ; he then gave one moiety of the trust estate 
 to such child or children of his son as he should leave, and the other 
 moiety to the child or children of his grandson J. D. — Lord Talbot 
 said, the whole depended on the testator's intent as to the continu- 
 ance of the estate devised to the trustees ; whether he intended the 
 whole legal estate to continue in them, or whether only for a par- 
 ticular time or purpose. If an estate be limited to A and his heirs, 
 
 13 Curtis V. Price, 12 Ves. 8!) ; Shaplarid v. Smith, 1 Bro. Ch. Ca. 75 ; Fearne's 
 Opns. 421, Butl. Co. Litt. 290. h.n. 1. pi. 8.
 
 r/j8 
 
 r 
 ^ 
 
 !,\\\ rUACTS. 
 
 in trust for B and his heirs, there it is executed in B and liis heirs: 
 but wliere particular tilings are to lie done by the trustees, as in 
 this case, viz. several payments to be made to several persons, it was 
 necessai-y that the estate should remain in them, so long at least, as 
 tliose particular purposes required it. 
 
 TABLE OF CASES CITED IN THIS TRACT. 
 
 Attorney General v. Scott, 277 
 
 Bagshaw v. Spencer, 283, 307 
 
 lioraston's case, 287 
 
 Bosworth V. Farrard, 314 
 
 Botelcr v. Allington, 278 
 
 Brougliton v. Langlcy, 280, 297 
 
 Brovvnsword v. Edwards, 288 
 
 Burchett v. Durdant, 279 
 
 Bush V. Allen, 325 
 
 Carter v. Barnardiston, 307 
 
 Chapman v. Blisset, 327 
 
 Cordal's case, 307, 322 
 
 Doe V. Barthrop, 285 
 
 Doe V. Biggs, 285 
 
 Doe V. Harris, 293 
 
 Doe V. Hicks, 327 
 
 Doe V. Ironmonger, 283 
 
 Doe V. Lea, 291 
 
 Doe V. NichoUs, 291, 303 
 
 Doe V. Simpson, 284, 292, 315, 321, 323 
 
 Doe V. Tinimins, 291 
 
 Doe V. Underdown, 295 
 
 Doe V. Willan, 315,323 
 
 Garth v. Baldwin, 310 
 
 Gibson v. Rogers, 312 
 
 Goodtitle v. VVhibley, 290 
 
 Gregory v. Henderson, 319 
 
 Harton V. Harton, 282 
 
 Hawker v. Hawker, 308 
 
 Hawkins v. Lusconibe, 305 
 
 Hitchens v. Hitchcns, 299 
 
 Hopkins v. Hopkins, 276 
 Jones V. Say and Sele, (Ld.) 281 
 Keene v. Dearden, 320 
 Kenrick v. Beaiiclerk, 301 
 Lomas v. Holmsden, 288 
 Manning's case, 291 
 Mansfield v. Dugard, 294 
 Marwood v. Darnell, 276 
 Murthwaite v. Jeiikinson, 302, 324 
 Nevil V. Saunders, 281 
 Randall v. Bookey, 308 
 Right V. Smith, 297 
 Robinson v. Gray, 284 
 Shapland v. Smith, 305, 317, 327 
 Shaw V. Weigh, 307 
 Sonierville v. Lethbridge, 317 
 Stanley v. Stanley, 295,311 
 Tracv V. I.ptheuUier, 294 
 Trod'd V. bownes, 288 
 Tyrrell's case, 277 
 Venables v. Morris, 278 
 Vick V. Edwards, 310 
 Warter v. Hutchinson, 293, 306 
 Wellington v. Wellington, 300 
 Wilson V. Silvester, 280, 304 
 Woollen V. Andrews, 286 
 Wright V. Pearson, 294, 313 
 Wykham v. Wykham, 306 
 Wagstaff V. WagstaflF, 277 
 Whetstone v. Burv, 277. 
 
 THE END OF VOL. I. 
 
 Primed by James Holmes, 4, Took's-court, Cliancery-lane, London.
 
 LAW TRACTS, 
 
 PUBLISHED 
 
 IN THE YEARS 1828 & 1829, 
 
 THE LAW JOURNAL, 
 
 WHICH IS 
 
 A MONTHLY PUBLICATION 
 
 SOLD TO 
 
 ANNUAL SUBSCRIBERS ONLY. 
 
 VOL. II. 
 
 LONDON : 
 
 Printed by James Holmes, 4, look's Court, Chancery Lane. 
 PUBLISHED BY J. W. PAGET, 5, QUALITY COURT, CHANCERY LANE. 
 
 MDCCCXXX.
 
 LAW TRACTS. 
 
 No. I. 
 
 A PRACTICAL TREATISE 
 ON THE LAW 
 
 RELATIVE TO 
 
 ATTORNIES, SOLICITORS, 
 
 AND THEIR AGENTS. 
 
 No. II. 
 
 SUGGESTIONS 
 
 AS TO 
 
 THE COURSE OF STUDY TO BE ADOPTED, 
 
 AND SELECTION OF BOOKS, 
 BY PARTIES DESIGNED FOR SUCH BRANCHES OF THE LEGAL PROFESSION. 
 
 By J. HOOPER DAWSON, ESQ. 
 
 OF THE INNER TEMPLE, BARRISTEK-AT-L AW.
 
 TO 
 
 CHARLES PETERSDORFF, ESQ- 
 
 OF THE INNER TEMPLE, 
 
 THE FOLLOWING PAGES 
 
 WITH SENTIMENTS OF RESPECT. 
 
 INSCRIBED 
 
 BY HIS LATE PUPIL, 
 
 THE AUTHOR,
 
 PREFACE. 
 
 The following sketch was written by the Author, from the 
 conviction that there existed no distinct work upon the sub- 
 ject, from which Attornies and Solicitors could derive such 
 information, as was so essentially and intimately connected 
 with their own interests and professional station. The object, 
 in view, has been, to supply this want, — by a careful collection 
 of the different decisions — by an examination of their doc- 
 trines — and by such suggestions as struck the Author on 
 their perusal. It will be found, that, in many instances, the 
 reported cases have not been viewed as absolute authorities ; 
 but that, on the contrary, the various reasons that might 
 be advanced, pro and con, have been stated, where it ap- 
 peared any doubt could possibly exist, as to the validity or 
 propriety of the decision. 
 
 The promulgated opinions of our Judges are at all times 
 to be respected ; and, in the majority of instances, — from the 
 learning displayed, the deep and recondite research evidenced, 
 and the depth and accuracy of reasoning and judgment ex-
 
 VIU PREFACE. 
 
 emplified, — to be acquiesced in. But it is humbly hoped, 
 that even those individuals will not consider it rash, to hazard 
 occasional opinions, although opposed to their own, however 
 ultimately erroneous ; and be more inclined to impute it to 
 a desire to call forth further investigation, than to any vain 
 or presumptuous motives. 
 
 The method adopted, it will be seen, has been, to state 
 the general principle under discussion, and then exemplify 
 it by authorities adduced. Where, however, the setting forth 
 of a case, at length, did not seem adapted to facilitate a fur- 
 ther elucidation of the subject, but would serve only to extend 
 the work, it has been simply referred to. 
 
 Great pains have been taken to render the Index as useful 
 as possible, by an insertion of every head or division likely 
 to strike the inquirer's mind, on wishing to refer to any par- 
 ticular portion of the following pages. 
 
 Perhaps the Author may be permitted to state, that the 
 reason of the Cases, that will be found in the Addenda, being 
 inserted in that place, has, in a great measure, arisen from 
 the printing of the work having been for some months de- 
 layed, owing to circumstances over which the Author had 
 no control. 
 
 Temple, Nov. 1829.
 
 LAW TRACTS. 
 
 No. I. 
 
 PRACTICAL TREATISE 
 
 ON 
 
 THE LAW 
 
 RELATIVE TO 
 
 ATTORNIES AND SOLICITORS. 
 
 BY A MEMBER OP THE INNER TEMPLE. 
 
 VOL. II.
 
 CONTENTS. 
 
 INTRODUCTION. 
 
 CHAP. I. 
 
 OF THE NECESSARY QUALIFICATIONS OF ATTORNIES AND SOLICITORS. 
 
 Sect. 1. The Clerkship. 
 
 2. The Admission. 
 
 3. The Certijicate. 
 
 CHAP. II. 
 
 APPOINTMENT OF ATTORNIES AND SOLICITORS BY THEIR CLIENTS. 
 
 Sect. 1. Instances in which an Appointment can be made. 
 
 2. Mode of Appointment. 
 
 3. As to an Attorneys being bound to accept a retainer. 
 
 4. Effect of an Appointment. 
 
 5. Extent of his authority. 
 
 6. Determination of an Attorney s authority. 
 
 7. As to an Attorneys actiijg without an Appointment. 
 
 CHAP. III. 
 
 RIGHTS AND PRIVILEGES OF ATTORNIES AND SOLICITORS AND THEIR 
 
 CLIENTS. 
 
 Sect. 1 . As to the Rights and Privileges of Attornies and Solicitors, 
 2. As to the Rights and Privileges of their Clients. 
 
 CHAP. IV. 
 
 RELATIVE TO THE DISABILITIES OF ATTORNIES AND SOLICITORS. 
 
 Sect. 1. As to holding certain offices. 
 
 2. As to becoming Bail and Lessees. 
 
 3. As to conducting proceedings. 
 
 4. To take the Affidavits of their Clients. 
 
 5. To make Purchases, S^-cfrom Clients. 
 
 CHAP. V. 
 
 RELATIVE TO THE DUTIES AND LIABILITIES OF ATTORNIES AND SOLI- 
 CITORS, AND THEIR CLIENTS. 
 
 Sect. 1. Duties and Liabilities of Attornies. 
 
 2. Ditties and Liabilities of their Clients.
 
 4 CONTENTS. 
 
 CHAP. VI. 
 
 RELATIVE TO THE REMEDIES THAT MAY BE ADOPTED BY ATTORNIES 
 
 AND SOLICITORS. 
 
 Sect. 1 . For the Recovery of Costs. 
 
 2. To recover Compensation for the commission of Torts. 
 
 CHAP. vn. 
 
 RELATIVE TO ACTIONS AGAINST ATTORNIES AND SOLICITORS. 
 
 Sect. 1. For Negligence. 
 
 2. For Recover?/ of Penalties. 
 
 CHAP. vni. 
 
 RELATIVE TO CHANGING ATTORNIES AND SOLICITORS. 
 
 Sect. 1. Mode of changing them. 
 
 2. Effect of the change. 
 
 3. Effect of an irregular change. 
 
 CHAP. IX. 
 
 RELATIVE TO AN ATTORNEY OR SOLICITOR DISCONTINUING HIS PRO- 
 FESSIONAL CHARACTER. 
 
 CHAP. X. 
 
 RELATIVE TO THE REVIVAL OF AN ATTORNEY'S OR SOLICITOR'S PRO- 
 FESSIONAL CHARACTER. 
 
 CHAP. XL 
 
 RELATIVE TO ATTORNIES OR SOLICITORS ACTING AS AGENTS. 
 
 Sect. 1 . Of the general nature of Agency. 
 
 2. Their Appointment. 
 
 3. Their Rights and Privileges, and herein of the Rights 
 
 and Privileges of their Clients. 
 
 4. Disabilities of Agents. 
 
 5. Relative to their, and their Client's Duties and Liabilities. 
 G. Remedies that may be adopted by them. 
 
 7. Actions against them. 
 
 CONCLUSION.
 
 ANALYSIS. 
 
 I 
 
 Introduction. 
 
 Chap. I. — Of the necessary Qualifications of Attornies 
 AND Solicitors. 
 
 Sect. 1. The clerkship. 
 1st. Articles. 
 
 1. Contents of. 
 
 2. Stamp on. 
 
 3. Affidavit of execution. 
 
 a. Contents of it.— 6. Filing it. 
 
 4. Enrolment of articles. 
 
 5. Assignment of. .«, 
 a. When generally assignable.— 6. Stamp on.— c. Ath- 
 
 davit of execution of. 
 
 2nd. Service. 
 
 1. General nature of it. 
 
 a. As to its being free from collusion. 
 
 h. As to its being continued and umnterrupted. 
 
 2. As to the party with whom the service ought to be. 
 ' a. In general.— &. With an agent. 
 
 3. As to the period of service. 
 
 a. In general. . 
 
 h In the case of students of barristers, &c. 
 
 4. As to disputes between articled clerks and their masters. 
 
 2. As to the admission. 
 
 1st. Notice of intention to apply for. 
 
 1. Mode of giving. 
 
 2. Contents of it. 
 
 3. When to be given. 
 2nd. Affidavit of execution of. 
 
 3rd. Affidavit of payment of duty on the articles. 
 4th. Affidavit of service. 
 5th. Previous examination. 
 6th. Oaths to be taken. 
 7th. Actual admission and enrolment. 
 8th. Admission into various courts. 
 3. Certificate. 
 1st. In general. 
 2nd. Duties payable on. 
 
 3rd. Registry of. . • j r 
 
 4 As to the effect of unquahfied persons practising, and ot 
 attornies themselves sanctioning such practice. 
 Chap. II.— Of the Appointment of Attornies and Solicitors 
 BY THEIR Clients. 
 Sect. 1. As to the instances in which appointments can be made. 
 2. As to the mode of appointment. 
 
 VOL. II. ^
 
 ANALYSIS. 
 
 Sect. 3. As to an attorney's being bound to accept a retainer. 
 
 4. As to the effect of an appointment. 
 
 5. As to the extent of his authority. 
 
 6. As to the determination of the attorney's authority. 
 1st. By lapse of time. 
 
 2nd. By death. 
 
 3rd. By order of court or a judge. 
 
 7. As to an attorney's acting without due appointment. 
 
 Chap. III.— Relative to the Rights and Privileges of Attor- 
 
 NIES AND THEIR CLIENTS. 
 
 Sect. 1. As to the rights and privileges of attornies. 
 1st. As to his privileges. 
 
 1. As to the mode of suing and being sued, and proceed- 
 
 ings incident thereto. 
 
 2. As to an attorney's exemption from the jurisdiction of 
 
 inferior courts. 
 
 3. As to an attorney's exemption from serving offices. 
 
 4. As to an attorney's privilege as a witness. 
 
 5. As to an attorney's exemption from serving on juries 
 
 or inquests. 
 G. How enforced. 
 2d. As to his rights. 
 
 1. Individually. 
 
 a. To conduct proceedings before magistrates. 
 
 b. To continue action after collusive payment of debt. 
 
 c. To appoint his clerk a commissioner to examine 
 
 witnesses abroad. 
 
 d. To receive payments, and give discharges for clients. 
 
 2. To enter into contracts for the sale or disposal of his 
 
 professional emoluments. 
 2. As to the rights and privileges of the clients. 
 1st. As to the taxation of the attorney's bill. 
 
 1. When taxed. 
 
 2. Period of taxation, and effect of particular arrange- 
 
 ments. 
 
 3. By whom to be taxed, and mode of enforcing taxation. 
 
 4. Costs of taxation. 
 
 Chap. IV. — Relative to the Disabilities of Attornies and 
 Solicitors. 
 Sect. 1. As to becoming bail and lessees in ejectment. 
 
 2. In conducting proceedings. 
 
 3. To take the affidavits of their clients. 
 
 4. To make purchases, &c. from clients. 
 
 5. To take more than two articled clerks. 
 
 Chap. V. — Relative to the Duties and Liabilities of Attor- 
 nies AND Solicitors, and their Clients. 
 Sect. 1. Duties and liabilities of attornies and solicitors. 
 1st. Of their duties. 
 
 1. To the Court. 
 
 2. To the client.
 
 ANALYSIS. 
 
 2d. Of their liabilities. 
 
 1. Direct liabilities. 
 
 a. To penalties. 
 
 b. For champerty and maintenance. 
 
 c. To clients. 
 
 d. To third parties. 
 
 I. Foi* malpractice. 
 
 II. On express or implied conti-acts. 
 
 e. To the summary jurisdiction of the Court. 
 
 I. In general, et vide Addenda to p. 101. 
 II. By compelling performance of contracts or undertakings. 
 III. By compelling attornies to discover their client's place 
 
 of residence. 
 IV. By compelling delivery of papers, deeds, &c. 
 
 2. To the bankrupt laws. ^ 
 S. Collateral liabilities. 
 
 2. Duties and liabilities of clients. 
 
 Chap. VI. — Relative to the legal Remedies that may be 
 
 ADOPTED BY AtTORNIES. 
 
 Sect. 1 . Relative to the iaction at law for the recovery of costs. 
 1st. Preliminary steps. 
 1. Delivery of bill. 
 «. When essential. — h. How prepared. — c. When to be 
 delivered. — d. To whom, and how to be delivered. 
 2nd. In what court to sue. 
 3rd. By and against whom to be brought. 
 4th. Of the process. 
 
 1. In the Court of King's Bench. 
 
 2. In the Court of Common Pleas. 
 
 3. In the Exchequer. 
 5th. Holding to bail. 
 
 6th. Pleadings. 
 
 1. Declaration. 
 
 a. Time for declaring. — h. Statement of the term. — 
 c. Venue. — d. Commencement of declaration. — 
 e. Subject-matter of declaration. — -f. Conclusion of 
 the declaration. 
 
 2. Subsequent pleadings. 
 7th. Evidence. 
 
 1. On the part of the plaintiff. 
 a. Proof of retainer. 
 
 h. Proof of the delivery of the bill. 
 1 St. The delivery of the bill. 
 
 2dly. The party to whom, or place at which it was delivered. 
 3dly. The period of the delivery. 
 
 c. Proof of the bill, and of the business having been done. 
 
 d. Proof of the reasonableness of the charges. 
 
 2. On the part of the defendant. 
 8th. Costs. 
 
 2. Relative to an attorney's right of lien for his costs. 
 1st. Upon deeds and papers. 
 
 1. General rules. 
 
 2. How far subordinate to the rights of third parties.
 
 ANALYSIS. 
 
 3, How far affected by the acceptance of securities. 
 
 4. How far affected by the bankrupt laws. 
 
 2nd. On judgments, decrees, monies, or other securities for 
 monies recovered by the client. 
 In general. 
 
 How far paramount or subordinate to the equitable 
 claims of the party to the cause or suit. 
 3rd. How liens are affected by the attorney parting with pos- 
 session of the subject of the lien. 
 Sect. 3. To recover compensation for the commission of torts. 
 
 Chap. VII. — Proceedings against Attornies and Solicitors. 
 Sect. 1. Of the Court before which proceedings should be taken. 
 
 2. Parties to the action. 
 
 3. Of the bill. 
 
 1st. General nature of the bill, and practice relating to it. 
 
 1. In the Court of King's Bench. 
 
 2. In the Court of Common Pleas. 
 
 3. In the Exchequer. 
 2nd. Form of action. 
 3rd. Venue. 
 
 4th. Commencement. 
 5th. Statement of retainer. 
 Cth. Statement of subject-matter of action. 
 Sect. 4. Relative to the subsequent pleadings. 
 1st. Plea of privilege. 
 
 1. Within what time to be pleaded. 
 
 2. Nature of the plea. 
 
 3. Mode of constructing the plea. 
 
 4. Affidavit in support of such plea. 
 2nd. Pleas in bar. 
 
 1. Time for pleading. 
 
 2. Nature of the plea. 
 
 Sect 5. Relative to the evidence. 
 
 Chap. VIII. — Relative to changing Attornies and Solicitors. 
 
 Chap. IX. — Relative to the Cessation of an Attorney's pro- 
 fessional Character. 
 
 Sect. 1. By being struck off the roll. 
 
 2. By neglect or inadvertence in taking out his annual certi- 
 ficate. 
 
 Chap. X. — Relative to the Revival of an Attorney's profes- 
 sional Character. 
 
 Sect. 1. When requisite, and when allowed. 
 
 2. Notice of intention to apply for. 
 
 3. As to the payment of a fine or arrears of duty. 
 
 4. Rule and affidavit of readmission. 
 
 Chap. XI. — Relative to Attornies acting as Agents.
 
 INTRODUCTION. 
 
 XHE Law connected with Attornies and Solicitors has been gra- 
 dually ameliorated and improved, as the importance of their avoca- 
 tions, and the duties they had to perform, have increased. Still, 
 looking at the progress of the profession, the daily augmentation of 
 its numbers,' and the accumulation of the resources of this country, 
 thereby rendering this office a situation of extensive trust, it is a 
 matter of surprise, that so little attention has been devoted to the 
 clear comprehension of those laws, that so immediately^ and hourly, 
 affect the parties themselves to whom they relate. Under these cir- 
 cumstances, the following pages are submitted to the svibscribers of 
 the Law Journal.^ 
 
 The name of Attorney may convey two distinct ideas : first, that 
 of an unprofessional agent, appointed to act as the authorized repre- 
 sentative of another ; secondly, that of an attorney-at-law, retained to 
 prosecute and defend for his client, and he is in that sense considered 
 as an officer belonging to the courts of justice. He is principally 
 viewed in the latter light in the following treatise ; but, although 
 termed an attorney-at-law, he may, besides the routine of bu- 
 siness in court, necessarily transact and manage all matters that 
 arise out of, and are necessarily incident to, the original capacity 
 in which he was engaged — and always, in pursuance of a delegation 
 to that effect from his employer, be intrusted with the superinten- 
 dence of business, entirely unconnected with law, though he may 
 
 \ 
 
 1 The number of attornies has much increased within the last three centuries, 
 for an Act of Parhament, (now obsolete) passed in the 33 H. 6. c. 7 ; which states, 
 that not long before that time, there had not been more than six or eight attornies 
 in Norfolk and Suffolk, qm tempore (it observes) magna tranqu'dlitas rcgnabat ; but 
 that the number had increased to twenty-four, to the great vexation and prejudice 
 of these counties ; enacted, that, for the future, there should only be six attornies 
 in Norfolk, six in Suffolk, and two in the city of Norwich. 
 
 2 Previous to a treatise on this subject, by Mr. Maugham, pubUshed in 1825, 
 no distinct work had ever been submitted to the profession.
 
 LAW TRACTS. NO. 1. 
 
 apparently act quasi an attorney, and remain amenable to the juris- 
 diction of the courts of which he may be a member. Similar obser- 
 vations apply to Solicitors, who are employed to undertake and carry 
 through the various stages suits depending in courts of equity,' but 
 who, it is astonishing, are not in general enumerated in the books 
 on equity proceedings as officers of the court. 
 
 To recapitulate the minute changes that have, in the progress of 
 centuries, taken place with reference to attornies and solicitoi's, 
 would be as tedious as it would be a fruitless task ; but it will be 
 essential to notice the principal and leading alterations that have 
 been at various times introduced. 
 
 Formerly, every suitor was obliged to appear in person, to pro- 
 secute or defend his suit, (according to the old Gothic constitution,) 
 unless he was enabled to appoint an attorney by writ, or by spe- 
 cial licence under the King's letters patent.^ This, it will be 
 hereafter seen, is still the law in criminal cases, and in certain 
 other instances, in which it has behoved the legislature to re- 
 strain men from an enjoyment of the privilege of appointing a 
 lecal substitute, from discretionary motives, as connected with the 
 individual, or where the exercise of the immunity would interfere 
 with the very object of the party's appearance in court. But as is 
 the Roman law, " Cum olim in usu fuisset alterius nomine agi non 
 posse ; sed quia hoc non mininiam incommoditateiu hahehat, coeperunt 
 homines i^er procuratores Utigare ,-" so in this country, upon the same 
 principle of convenience, it is now in general permitted, by a variety 
 of ancient statutes, the first of which is the statute of West. 2. c. 10, 
 which declares '^ that the attornies may be made to prosecute or 
 defend any action in the absence of the parties to the suit."^ 
 
 1 For the various definitions of the words, "Attorney" and " SoUcitor," see 
 3 Bl. Com. 25; Co. Litt. 52, a; 1 Com. Dig. G18; Bac. Abr. vol. 1. p. 183; Tom- 
 lin's Dictionary, Tits. " Attorney" and " SoUcitor." 
 
 It may be here mentioned, that, excepting where necessary to point out the 
 distinction, the term uttomei) will be in general considered as comprehending both 
 attornies and solicitors. 
 
 ^ Stiernhook de jiu-e Goth. 1. i. c. 6 ; F. N. B. 25 ; Co. Litt. 128, a; Mirr. ca. 2. 
 8. 21 ; 8 Co. 58. b. 
 
 3 See also 20 H. 3. st. Merton, c. 10; 3 Ed. 1. st. 1 West. c. 29, .33, 42; G Ed. 1. 
 St. Gloucester, c. 8 ; 12 Ed. 2. st. 1. c. 1 ; 15 Ed. 2. st. 1 ; 7 Ric. 2. c. 14.
 
 INTRODUCTION. 
 
 No regulation was, however, made as to the quahfications of 
 attornies, until the reign of Henry IV.,' when it was deemed ex- 
 pedient, to direct their examination by the justices, and to vest a 
 discretionary power in such magistrates as to their admission ; to 
 render it necessary for them to take an oath, purporting that they 
 would faithfully discharge their duties, and especially that they 
 would abstain from "making suits" in a foreign coimtry; and, finally 
 to declare, that, " if any such attorney should be thereafter noto- 
 riously found in any default of record, or otherwise, he should for- 
 swear the Court, and never after be received to make any suit in 
 any court of the King." To increase the respectability of attor- 
 nies, and ensure their practical experience, all attornies were an- 
 ciently obliged to attend personally in court at stated periods," and 
 in furtherance of such object it was, by the statute 3 James 1. c. 7. 
 enacted/**'* that none should, from thenceforth, be admitted attornies, 
 in any of the King's Courts of Record at Westminster, but such as 
 had been brought up in the same courts, or otherwise well practised 
 in soliciting causes,^ and had been found, by their dealings, to be 
 skilful, and of honest dispositions." In confirmation of this statute, 
 rules were made in both courts, that no one should be admitted an 
 attorney unless he had served the space of Jive years, as a 
 clerk to some judge, serjeant-at-law, practising counsel, attorney, 
 clerk, or officer, of one of the Courts at Westminster ; and had also, 
 besides having a character untainted by vice or immorahty, proved 
 that he was possessed of sufficient legal attainments, to guard his 
 client against those claims which might have no other foundation than 
 the mere assertion of a right."* To discover the competency of indi- 
 viduals, it was then usual to nominate, annually, twelve or more able 
 practitioners in the courts, whose business it was to interrogate such 
 persons as should be desirous to be admitted attornies. They were 
 first to attend the prothonotary with the testimonials of service, and 
 
 1 4H.4. c. 18. 
 
 -' Reg. Gen. x^I. T. 1573 ; kl. T. T. 1582; id, E. T. 1615 ; id. H. T. 1645 ; id. 
 M. T. r654. 
 
 3 This is the first mention of soUeilors in the statute book. 
 
 4 R.M. 1654, § I. K. B. & C. P; R. H. 8 Car. 1. C. P.
 
 8 LAW TRACTS. NO. I. 
 
 then to repair to the persons appointed to examine them, and, being ap- 
 proved, were to be presented to the Court, and sworn in, unless some 
 reasonable and just exception were stated as an objection to their 
 eligibility.' It was also necessary that attornies should be admitted, 
 and reside in, or near, some inn of court, or Chancery, and keep 
 commons therein.^ 
 
 Some of these observances are now obsolete ; but it will be seen from 
 a perusal of the modern regulations, that although, for instance, 
 attornies and solicitors are no longer examined, inasmuch as the 
 practice was ultimately found to exist merely as a matter of form ; 
 and although they are not associated in the inns of court ; sufficient 
 precautions are taken, to ensure the respectability of this branch of 
 the profession, and protect the interests of the suitors. 
 
 1 R. M. 1654. §4. K.B. &C. P. ^ 
 
 2 R. M. 1654.^§ 1 ; R. M. 3 Ann. K. B. ; R. T. 29 Car. 2. reg. 1 ; R. M . 36 Car. 2; 
 R. IM. 4 Ann. C. P.
 
 (9) 
 
 CHAP. I. 
 
 OF THE NECESSARY QUALIFICATIONS OF ATTORNIES AND 60LICIT0RS. 
 
 In pursuance of the subject of this Tract, it will first be necessary 
 to lay before the reader the qualifications which are necessary to 
 entitle an individual to practise as an Attorney or Solicitor. 
 
 Sect. 1. — The Clerkship. 
 
 1st. Articles. — The first requisite to be complied with by a person 
 desirous of becoming an attorney, is, that he should be placed 
 under the care and tuition of a member of the profession, who has 
 himself been duly and legally sworn and admitted, to serve as a 
 clerk, for five years. ^ For this purpose, a contract, or articles in 
 writing, ought to be drawn up. 
 
 1. Contents of. — The nature of the clauses introduced into such 
 articles, and which are in general subscribed by the clerk, and a per- 
 son on his behalf, are, on the one hand — that the clerk will serve his 
 principal faithfully for the above period ; that he will not injure or 
 misapply his master's property, or whatever may be intrusted to his 
 care ; and that, if he does, he will make an adequate compensation ; 
 that he will keep inviolate his master's secrets, and obey and execute 
 his reasonable commands ; and that he will not abandon his service 
 without his consent : and on the other hand — that the master will 
 accept the clerk ; that he will, during the period of his appren- 
 ticeship, as effectually as possible, and to the utmost of his skill and 
 ability, teach and instruct him in the practice or profession, in 
 
 i respect of which he has become bound ; and that he will, at the ex- 
 piration of the term, make such exertions as may be requisite, at the 
 costs and charges of the clerk, or his friends, to procure him to be 
 admitted and sworn an attorney of any of his Majesty's courts of 
 Law, or Equity, that may be deemed advisable, provided he has 
 been a faithful servant. 
 
 2. Stamp on. — A stamp-duty has been imposed on all articles of 
 clerkship. Its amount depends on the object with which they are 
 entered into. By the general stamp act,^ a duty of 120/. is imposed 
 upon the contract, by means of which, any person shall first be 
 
 1 2 Geo. 2. c. 23 ; and 22 Geo. 2. c. 4G. ^ 55 Geo. 3. Sched. Part I. 
 
 VOL. II. C
 
 10 LAW TRACTS. NO. I. [cAP. I. 
 
 bound to serve as a clerk, with the intention of being admitted as 
 an attorney or sohcitor, in any of his Majesty's courts at West- 
 minster. A duty of GO/, is imj)osed on articles for a similar purpose, 
 with a view to admission in any of the courts of Great Sessions in 
 Wales, or in the counties palatine, or in any court of Record in 
 England holding pleas, where the debt or damage shall amount to 
 4i)s. or upwards, not being in any of his Majesty's superior courts. 
 A duty of 1/. 1 5s. is charged upon any counterpart or duplicate of 
 such articles, or contract of clerkship, which are in lieu of all former 
 duties previously imposed, as well on the articles or contract, as on 
 the amount of the premium paid with the clerk. 
 
 3. Affidavit of Execution, — The better to prevent unqualified 
 persons from being admitted attornies, and to render the act" by 
 which a person is ordained to serve as a clerk for the space of five 
 years, more eflPectual, it is provided,^ that every person who shall be 
 so bound shall, within three months next after the date of such 
 contract, cause an affidavit to be made and duly sworn of its actual 
 execution.3 
 
 a. Contents of it. — The affidavit should specify the names of 
 the attorney and solicitor, and of the person bound, and their places 
 of abode respectively, together with the day of the date of such 
 contract.4 
 
 b. Filing it. — By the 3d section of the 22 Geo. 2. c. 46, such af- 
 fidavit of execution must be filed within three months, in the court 
 where the name of the attorney or solicitor, to whom the individual 
 is bound, has been enrolled. The application must be made to 
 the respective officers of the courts, or their deputies, who are di- 
 rected to make and sign a memorandum, or mark the day of filing 
 at the back, or at the bottom, of the document. The 5th section 
 specifies the officers with whom such affidavits are to be filed : viz. 
 in Chancery, the senior clerk of the Petty Bag office ; in the King's 
 Bench, the chief clerk of that covu't ; in the Common Pleas, the clerk 
 of the warrants ; in the Exchequer, the king's remembrancer ; in 
 the Court of the Duchy of Lancaster, at Westminster, the chief 
 clerk of that court ; and in the several counties palatine, and in the 
 several courts of Great Sessions in Wales, the respective prothono- 
 
 1 2 Geo. 2. 2 22 Geo. 2. c. 4G. s. 4. 
 
 3 As clerks frequently omit, by mistake, to make and file this affidavit, an in- 
 demnity act is occasionally passed to remedy the omission. See 7 &-^ Geo. 4. 
 c. 45. 6. 1. 
 
 •» 22 Geo. 2. c. 46. s. 3.
 
 CAP. I.] RELATIVE TO ATTORNIES AND SOLICITORS. 11 
 
 taries of those local tribunals. The 6th section directs these officers 
 to keep a book for entering the substance of the affidavits, in order 
 that they may be always, in future, searched with facility and with- 
 out incurring any expense. The officers are also thereby enjoined 
 not to take more than 2s. 6d. as a recompense for their trouble in 
 filing the affidavits, and in preparing and keeping such books of 
 reference. 
 
 4. Enrolment of Articles^ — The articles must be next enrolled or 
 registered within six months subsequent to their having been entered 
 into, together with an affidavit of their execution ; and if such for- 
 mality be not attended to within the specified period, the service 
 under the articles shall be deemed to commence from the date of 
 such enrolment. 2 In one case, however, the original articles hap- 
 pened to be lost : — the Court, upon a motion made for such purpose, 
 founded on the production of the copy and the usual affidavits of 
 service and of notices, &c. permitted such copy to be filed.^ But 
 although they have interfered to relieve individuals who have not 
 been guilty of laches, they have never assumed the right of remedy- 
 ing an omission to enrol the articles of clerkship within the time 
 limited by the statute.'* No discretionary power is, under such 
 circumstances, vested in them^even in cases where the hardship 
 of the existence of the rule is to be lamented ; for where the ori- 
 ginal articles could not be found, and there was no trace of their 
 ever having been in any office of enrolment, the Coiu't held that 
 they could not direct the Master to enrol the counterpart of the ar- 
 ticles, for the purpose of admitting the party an attorney, although 
 there had been an actual service, and although there was an entry in 
 the cash-book of a clerk of the agents to whom the articles had been 
 transmitted for enrolment, that he had paid for their entry;'' regret- 
 ting, that the utmost they could do, was to enrol the counterpart of 
 the articles, and save the applicant the expense of procuring a new 
 agreement to be drawn. 
 
 5. Assignment of.^ a. When generally assignable, — Circumstances 
 
 1 An indemnity act is frequently passed to prevent any evil accruing to those 
 who shall have paid the proper i?tamp duties, to sei've as clerks, but have omitted 
 to enrol the contract or indentui'e to serve. 
 
 2 34 Geo. 3. c. 14. s. 2. » Ex parte Clarke, 3 B. & A. 610. 
 
 •^ 34 Geo. 3. c. 14. & In re Pilgrim, 1 B. & C. 264 ; s. c. 2. D. & R. 429. 
 
 6 By the 17th sec. of the 22 Geo. 3. c. 46. if any sworn clerk in the Six Clerks' 
 Office, to whom any person hath been bound by contract in writing, to serve as a 
 clerk for the term of live years, shall happen to die before the expiration of the said
 
 15 LAW TllACrs. NO. I. [CAP. I. 
 
 may occur to render it necessary that an assignment should be made 
 of the articles of clerkship, such as the death of the attorney, his 
 disconiinuhig practice, a cancellation of the contract by mutual con- 
 sent, or a legal discharge of the clerk by any rule of court before 
 the expiration of the term.' This right of assignment is a vested 
 privilege. It does not require the sanction of the Court to give it 
 solidity. Vv^hcre, therefore, an application was made, after an in- 
 terval of six years, on behalf of an articled clerk who had served a 
 portion of his time with an attorney who died before it was com- 
 pleted, for leave to serve the remainder with another solicitor, to 
 enable him to be admitted, the Court thought the application unne- 
 cessary, as on general principles the applicant was clearly entitled to 
 complete his apprenticeship with another master, the statute only 
 re(|uiring that he should serve a clerkship of five years with an 
 admitted attorney. 2 Where, however, the act causing an assign- 
 ment necessary is equivocal, and the interposition of the Court is 
 called in aid, they will act cautiously, and require to be satisfied as 
 to the real facts. Thus, accordingly, on a motion being made to 
 discharge the clerk of an attorney from his articles of clerkship, it 
 appearing by affidavit that the attorney, to whom he had become 
 bound, was a bankrupt, had absconded, and had thereby failed to 
 surrender to his creditors, the Court granted a rule nisi, in order to 
 give the party an opportunity of answering the affidavit.3 
 
 b. Stamp on. — If any person who has been articled to any attor- 
 ney, and has paid the requisite duty imposed, shall, in the event of 
 the death of the attorney, or of his abandoning his practice, or on the 
 happening of any other event which nulhfies the object of the original 
 agreement before the expiration of the term of five years, enter into 
 any subsequent similar contract with another attorney for the re- 
 mainder of the term, such last-mentioned contract shall not be sub- 
 
 term j or if such contract sliall be, by mutual consent of the parties, vacated, or in 
 case such clerk be legally discharged by any rule or order of the Court of Chan- 
 cery, before the expiration of the said terra ; in any of the said cases if such clerk 
 shall, by contract in writing, be obliged to serve, and shall accordingly serve as a 
 clerk to any other sworn clerk in the said Six Clerks' office, or to any solicitor 
 who shall be sworn, admitted, and enrolled, pursuant to the 2 Geo. 2. during the 
 residue of the said term, then such service shall be deemed and taken to be as 
 elfectual aa if such clerk had continued to serve as a clerk for the term of five 
 years to the same pei'son to whom he was originally bound. 
 
 1 22 Geo. 2. c. 46. s. 9 ; and see 2 Geo. 2. c. 23. s. 12. 
 
 - In re Smith, 1 D. & U. 111. 
 
 ^ Anon M. T. 1815; 1 CJiit. Kcp. 558, n'.; s-c. 2 Chit. Rep. (i2.
 
 CAP. I.] RELATIVE TO ATTORNIES AND SOLICITOUS. 13 
 
 ject to any of the duties incurred by the o4 Geo. 3. c. 14. s. 5. The 
 duty of 1/. 15*. is, however, payable under such circumstances. 
 This duty was created by the general stamp act.^ Any counterpart 
 or duplicate is also subject to such charge. 
 
 c. Affidavit of Execution of. — It being therefore clearly esta- 
 blished that an assignment of a clerk, from one attorney to another, 
 may be made under certain circumstances, and that such subsequent 
 employment shall be deemed as good, effectual, and available, as if 
 the clerk had continued to serve the person under whom he was at 
 first placed ; the only thing that remains to be done is — that an affi- 
 davit should be duly made and filed of the execution of such second 
 contract within the time, and in the same manner as has been already 
 pointed out with reference to the original agreement. 
 
 3d. Service. 1. General Nature of it. a. As to its being free 
 from Collusion. — The service of the clerk must appear to be strictly 
 bond fide f and to have no other object in view than that of fitting 
 the individual to take upon himself the office of a legal represen- 
 tative. If collusion can be brought home, it will invalidate the con- 
 tract : as where the turnkey of a prison was articled to an attorney ; 
 the former appeared to be advanced in years ; no money was shewn 
 to have been paid ; other formalities were unattended to ; and the 
 turnkey did not officiate, excepting in matters relating to the prison ; 
 the Court deemed these facts sufficient evidence of unfair dealing 
 to induce them to discountenance such a practice.^ So the name of 
 an articled clerk was ordei'ed to be erased from the roll of clerks in 
 court in the Exchequer, where it appeared that the entry had been 
 made at the age of nine years, whilst he was at school.^ These 
 examples are sufficient to illustrate the general principle just 
 advanced. 
 
 b. As to its being continued and tminterrupted. — The statute 
 S^ Geo. 2. c. 46. s. 15. requires an actual service under articles for 
 five years. The act, in this respect, is positive and inexorable. 
 Where, therefore, there had been an interval of ten months, after 
 the attorney had left the country, until an assignment took place, it 
 was considered necessary to require new articles of service to com- 
 plete the period of five years."* So if the clerk holds any office 
 or employment, during any part of the period of his service, he will 
 be incapacitated ; as where he held the appointment of surveyor of 
 taxes during his articleship, the Court ordered hhn to be struck off 
 
 1 55 Geo. 3. ^ Fiazer's case, 1 Burr. 290. 
 
 3 lure Doiine, cited 3 iSwanst. 96, n. i Ee parte Roule, 2 Chit. Rep. Gl.
 
 14 LAW TRACTS. NO. I. [CAP. I. 
 
 tlie rolls;' although it was proved that his employment in the office 
 which he occupied, relating to the taxes, did not require more than 
 one-eighth of his time ; and that, during all the remaining portion, 
 he was engaged in the pursuit of legal knowledge in his master's 
 office. But an articled clerk, after duly performing his master's 
 business, may, at his leisure hours, employ himself in any mode he 
 deems expedient. In one case,^ the continuance of an attorney on 
 the roll was objected to, under circumstances which it would be ex- 
 tremely difficult to suppose could constitute a sufficient ground for 
 the Court to interfere. He had, for fourteen years, transacted the 
 business of two attornies, as their clerk, with great assiduity and abi- 
 lity ; he had been privately articled to one of them, and during that 
 time received no renumeration from him, but continued to receive 
 wages from the other, to whom the articles were a secret ; and he 
 usually worked from fourteen to eighteen hours a-day, and did all 
 the business of the former without any neglect of the latter. The 
 Court thought that the articles and service were sufficiently regular. 
 This case, however, serves to shew the extent to which the principle 
 may be carried ; as it follows, that if such a case could be for a 
 moment entertained in a court of justice, and still more if, in the 
 absence of a combination of such strong facts, it is fairly to be in- 
 ferred that the Court would have come to a contrary conclusion — 
 the line of demarcation between what is a compliance with the rule 
 under consideration and what is not, is not of such a nature as to render 
 the terms " continued and uninterrupted," words that may be looked 
 upon as conveying the same meaning that would attach to them in 
 common parlance. It is consequently of the utmost importance that 
 there should not even be a partial cessation from professional business 
 during the prescribed period of time, and that, in fact, no facts 
 whatever should be allowed to exist which can give rise to the 
 most remote inference of the service having been specious and 
 colourable. The Courts have, however, in some instances, relaxed 
 the rigour of this rule. Hence, where it appeared that a person 
 had been educated in the profession for the course of nineteen years ; 
 had been regularly articled for five years originally, and afterwards 
 for three years and a half, to make up the deficiency of his first 
 service ; and that the intermediate time had been spent in the same 
 manner as if he had been under articles ; the case was viewed as 
 one of great hardship, and the party was directed to be admitted.^ 
 
 1 la re Taylor, 5 B. & A. 538. ^ Blunt's case, 2 Bl. Rep. 7(^4. 
 
 3 Carter's case, 2 BI. Rep. 957 ; and see 2 Bl. 734.
 
 CAP. I.] RELATIVE TO ATTORNIES AND SOLICITORS. 15 
 
 2. As to the party ivith whom the Service ovght to be. a. In ge- 
 neral. — It is necessary tliat both the contract and tlie service should 
 be with a practising' attorney, to exemphfy which, it will only be 
 requisite to refer to an anonymous case in Barnes, p. 39, in 
 which the following circumstances were disclosed : viz. that an ap- 
 prenticeship had been served to a scrivener, who was also a sworn 
 attorney of the Court of Common Pleas, and in which admission 
 was refused ; for although it appeared, from the tenor of the articles, 
 that the master covenanted to instruct his apprentice in the mystery 
 of a scrivener ; and although it was shewn, that during the tei-m of 
 five years, specified in the articles, the master had never practised 
 as an attorney, but only acted in the capacity of a scrivener ; yet it 
 is to be remarked, that the Court would not have descended to the 
 inquiry of how much of his time was employed in the business of a 
 scrivener, if the master had even occasionally acted as an attorney, 
 had they not felt bovmd to reprobate the articleship of an individual 
 to a man who did not hold himself out to the world as a jiractising 
 attorney, but was desirous of combining qualities not necessarily 
 inherent in, if not diametrically opposed to, the recognized character 
 of an attoi'ney. 
 
 b. With an Agent. — By a general rule of court,^ the service must 
 be continued with the attorney with whom the contract was entered 
 
 1 By the 49 Geo. 3. c. 28. s. 1. it is enacted, that "persons having served a 
 clerkship of five years to some of the clerks of the King's coroner and attorney 
 in the Court of King's Bench, who have been regularly admitted as such clerks, 
 may be approved, sworn, and admitted to practise as attornies in the said Court 
 of King's Bench, and may also practise in any other of the courts of record in the 
 said recited Act mentioned, in the name and with the consent of some sworn 
 attorney of such court, such consent to be in writing, and signed by such attorney ; 
 in like manner as the attornies of such court, or the attornies or clerks of the 
 offices of the king's remembrancer, treasurer's remembrancer, pipe, or officer of 
 pleas in the Court of Exchequer at Westminster, are in and by the said act em- 
 powered to do." And by the IGth section of 22 Geo. 2. c. 46. "any person, who 
 shall have been admitted a sworn clerk in the office of the Six Clerks of the Court 
 of Chancery, or shall have been bound, by contract in writing, to serve as a clerk 
 for and during the term of five years, to a sworn clerk in the said ofBce, for and 
 during the said term of five years, and shall have continued in such service for 
 the space of three years or more, and shall have been admitted a waiting clerk, 
 or acted as such, during the residue of the said term of five years, may be ex- 
 amined, sworn, and admitted, and enrolled as a solicitor, in the same manner as 
 soliciTbrs in the Courts of Equity are by the said Act required to be examined, 
 sworn, admitted, and enrolled, any thing in the said Act to the contrary notwith- 
 standing." 
 
 2'r. T. T. 1791, K. B. ; 2 Geo. 2. c. 2.3. s. 5 ; and 22 Geo. 2. c. 4fi. s. 8.
 
 16 I-AW TRACTS. NO. I. [CAT. I. 
 
 into ; for even where the party was occupied in the office of another 
 attorney with his master's consent, and completed the remainder of 
 the prescribed period with the individual to whom he had been 
 articled, the Court refused to countenance such proceedings.' An 
 exception is, however, made of the last year of service. 
 
 3. /h to the Period of Sen-ice. a. In general. — It has been al- 
 ready seen tliat five years is the general period of service, one of 
 which may be served with the agent of the attorney under the articles. 
 
 b. In the case of Graduates, Sj-c. — Persons who have attained the 
 honour of being Bachelors of Arts, or Bachelors of Laws, in the 
 Universities of Oxford, Cambridge, or Dublin, may be admitted as 
 attornies or six clerks, after having been in the office of a solicitor 
 for the period of three years. But such degree must have been 
 taken within six years after matriculation, or eight years in case the 
 degree conferred be that of Bachelor of Laws. The party must be 
 articled within four years subsequent to his degree having been con- 
 ferred upon him.^ 
 
 c. In the case of Students of Barristers, §c. — Any person who 
 shall be bound to serve as a clerk for five years, and who shall ac- 
 tually and bond Jide continue as a pupil to any practising barrister 
 or certificated special pleader in England or Ireland, for any part 
 of the said term of five years, not exceeding one year, may demand 
 admission as attorney or solicitor, in the same manner, as, it has been 
 shewn, may be done, in cases where the clerk has served part of the 
 term of his clerkship with the agent of the person to which he has 
 been bound. '^ 
 
 4. As to Disputes between articled Clerks and their Masters. — The 
 Courts will interfere in a summary way in order to adjust dis- 
 putes between the officers of the court and their clerks. This is a 
 salutary and convenient practice, and has accordingly existed as far 
 back as evidence of such custom can be obtained. In exercising 
 this power, they generally refer it to the Master ; and in the event of 
 his being unable to come to a decision, direct an express application 
 to be made before themselves. When therefore, for instance, the 
 business of an attorney happens to decrease to such a degree, that 
 there remains little or nothing to do, and consequently he cannot 
 gain the necessary instruction in his profession, a reference is always 
 made to the Master to ascertain what portion of the premium, origi- 
 
 1 Ex parte Hill, 7 T. R. 456 ; Ex parte Thorney, cited id. Sed vide Lotil, 247. 
 
 2 1 & 2 Ceo. 4. c. 48. s. 2; 3 Geo. 4. c. 16. 
 « 1 & 2 (loo. 4. c. 48 ; and 2 & 3 Geo. 4 c. 16.
 
 CAP. I.] RELATIVE TO ATTORNIES AND SOLICITORS. 17 
 
 nally received with the clerk, should be refunded.* Many other cir- 
 cumstances might occur, under which the clerk would, in justice, 
 be entitled to a return of a part of the premium given with him. The 
 master might die before the expiration of the period of service ; or 
 he might, from ill health and debility, be unable to superintend the 
 education of his pupil : in all these cases, the Court, it seems, 
 would interfere summarily. A strong example may be noticed, in 
 which they even referred it to the Master, to report how much of a 
 premium should be returned, where the attorney refused to receive 
 back the apprentice, on the ground of misconduct ;-' and although 
 there is the case of Cvff v. Brown,^ where, it appearing, that an 
 apprentice, after serving two years of his time, and, without 
 any misconduct on the part of the master, ran away of his own 
 accord, and enlisted as a soldier, and afterwards was willing to return, 
 but that the attorney would not receive him again, the Court de- 
 cided that the master was not compellable to return any part of 
 the apprentice-fee ; from which it may be by some contended, that 
 the clerk, in the case just mentioned, voluntarily put an end to the 
 contract which existed between him and his principal, and that 
 therefore the latter was not bound to return any aliquot part of the 
 premium: it is to be remembered, that in the case of Ciijfw. Brown, 
 the question was discussed through the medium of a suit in equity ; 
 and that it does not consequently affect the jurisd ction of the 
 Court over the conduct of its officers, as detailed in the facts dis- 
 closed in the case reported by Messrs. Barnewall and Alderson. 
 
 In connexion with the portion of the Tract now under considera- 
 tion, as far as regards a return of premium, where the relative situ- 
 ation of attorney and clerk has undergone an alteration betwixt the 
 inception and progress of the contract, the liability of an attorney 
 to the bankrupt laws (which will be hereafter enlarged upon,) natu- 
 rally occurs to the mind. Let us then view the situation of the 
 clerk, not only deprived for a time of professional tuition, but even, 
 did a remedy not prevail, afterwards obliged to submit to the in- 
 convenience of remaining in the office of an individual, perhaps, 
 from the vicissitudes and deprivations to which he may have been 
 subjected, rendered less alive both to his own and his pupil's in- 
 terest. Formerly, the clerk might (although doubts have been 
 entertained on this point) prove, under his master's commis- 
 
 1 2 Barnard, 22/. 
 
 2 Ex parte Prankerd, 3 B. & A. 25/ ; 1 Chit. Rep. 6!M. See I Atk. 528; 
 16 East, 207. 3 5 Pnce, 297- 
 
 VOL. II. D
 
 18 LAW TRACTS. NO. I. [cAP. I. 
 
 sion, for the premium paid, deducting a proportionate part for the 
 time he had received a benefit from his preceptor's care and instruc- 
 tion,' or the creditors were recommended to allow the apprentice 
 a gross sum out of the bankrupt's estate, for the purpose of assigning 
 him to another person." Now a more clear and definite rule exists. 
 Tlie enactments of the legislature, it is presumed, have set the ques- 
 tion — if any surmises, as to its propriety or legality, were well 
 founded — at rest; for by the 6 Geo. 4. c. IG. s. 49. it is declared, 
 that where any person shall be an apprentice to a bankruj^t at the 
 time of issuing the commission against him, the issuing of such 
 commission shall operate as a complete discharge of the indenture, 
 ■whereby such apprentice was bound to such bankrupt ; and if any 
 sum shall have been really and bond Jide paid, on the behalf of 
 such apprentice, to the bankrupt, as an apprentice-fee, it shall be 
 lawful for the commissioners, upon due proof, to direct a reasonable 
 sum to be paid for the use of such apprentice ; in estimating the 
 amount of which, regard must be paid, to the amount of the sum 
 originally given to the bankrupt, and to the period such apprentice 
 shall have resided with the bankrupt previous to the issuing of the 
 commission. 
 
 Sect. 2. — As to the Admission. 
 1st. Notice of intention to apply for. — To enable the Court to be 
 accurately informed of the competency and qualifications of persons 
 applying to be admitted as attornies, they have adopted the safe- 
 guard of requiring a notice to be given of their wish to be enrolled. 
 
 1. Mode of giving. — By a rule in the Court of King's Bench, this 
 notice must be affixed on the outside of such court, in the same 
 manner as is usually adopted with other public notices : it must also 
 be exhibited in the King's Bench office,"* and must be entered in a 
 book kept for that purpose, at each of the Judges' chambers who 
 preside over that court. ^ There is a similar rule in the Common 
 Pleas, which requires the notice to be affixed on the outside of the 
 court, and to be left at each of the Judges' chambers of that court, 
 and there placed in some conspicuous position. Such notice must 
 be also fixed up in the Common Pleas office.^ 
 
 2. Contents of it, — The notice required must state the party's . 
 name and place of abode, and also the name and place of abode of 
 
 1 Atk. 149. Sed vide 1 Mont. Bkt. L. 174 ; 2nd Ed. Cullen, 76. 
 
 2 Beawe's Lex IMerc. bG2. a R. T. 1791, K. B ; 4 T. R. 3/9. 
 4 T. R. 1793; 5 T. R. 3GB. -^ R. T. 179:3 ; 2 .Marsh, 48, n.
 
 CAP. i:] RELATIVE TO ATTOIINIES AND SOLICITORS. 19 
 
 the attorney to whom he shall have been articled, in legible cha- 
 racters. Care mu;jt be taken, that, if an assignment has been made, 
 the names of both attornies be specified in the notices,' as the omis- 
 sion of such a statement would be in effect annulling the rule which 
 requires the notices to state wath whom the party has served his 
 clerkship. Besides, as the latter part of a clerk's time is generally 
 the most important, it is the more especially necessary that the 
 assignee's name should be inserted. It has been seen, that, accord- 
 ing to a late Act of Parliament, any clerk may be a pupil for the 
 space of a twelvemonth with any practising barrister, or with any 
 person bond fide practising as a certificated special pleader, during 
 any period of the five years usually required to be served with an 
 attorney. The act empowers the Judge, or other authority, to 
 whom such party may apply for admission as an attorney, to admit 
 him, provided he is satisfied that such person has actually continued 
 with, and been employed by, such barrister, or special pleader. It 
 would therefore appear to be necessary that the notice of an in- 
 tention to apply for admission, imder such circumstances, should 
 state the exact mode in which the period of five years has been 
 occupied. 
 
 - 3. When to be given. — The period prescribed for giving the notice, 
 now under consideration, is the space of one full term previous to 
 the term in which an application is made for admission ; and as the 
 object in requiring such notice is to enable persons to object to such 
 party, as an improper person to be put upon the roll of attornies, 
 it is necessary that the notice be given during the term next imme- 
 diately preceding the application.^ Were a contrary rule to pre- 
 vail, and a term allowed to intervene between the notice given and 
 the actual admission, the vigilance of any one who might intend to 
 oppose the admission might be entirely eluded, as one would natu- 
 rally be induced, by the notice that was given, to watch for the 
 application during the w hole of the then next succeeding term ; and 
 finding that no attempt was made for admission, w^ould reasonably 
 conceive the whole matter to be at an end. The consequence would 
 be, that the object of the rule would be evaded, and an improper 
 party might gain admittance on the rolls of the court. 
 
 2d. Affidavit of Execution of the Articles. — It has been seen' 
 that an affidavit of the execution of the articles must be prepared 
 and filed. The 4th section of the 22 Geo. 2. c. 40, incapacitates a 
 
 1 Ex parte Stokes, 1 Chit. Rep. 556. 
 
 - In re Bonner, (> Taunt. 3.S5 ; s. c. 2 Marsli. IS. •"' Aii/r, p. ID.
 
 20 LAW TRACTS. NO I. [cAP. I. 
 
 person from being admitted an attorney or solicitor until such afRdavit 
 is openly read in the court of which he is desirous of becoming a 
 member. 
 
 3d. Affidavit of Payment of the Duty on the Articles. — By the 
 statute 3\ Geo. 3. c. 14. s. 3. no person shall be admitted an attor- 
 ney, unless he swears that the duty imposed on the articles has been 
 paid. 
 
 4th. Affidavit of Service. — Before admission, it is also requisite 
 that the clerk, or the attorney to whom he was last bound, should 
 make an affidavit that the clerk has actually served, and been em- 
 ployed by, the attorney or his agent, during the whole of the period 
 of five years.^ Should the clerk have been placed, during any por- 
 tion of his apprenticeship, in the office of a barrister, special pleader, 
 or conveyancer, such circumstance must be, of course, verified on 
 oath in a similar manner. 
 
 5th. Previous Examination.'^ — After the expiration of the term 
 of five years, and before the clerk is sworn or admitted, he is liable, 
 should it be so required, to be examined as to his eligibility and ca- 
 pacity by one of the Judges.'^ When, however, there is no oppo- 
 sition to his admission, the Judges, in their discretion, dispense with 
 his personal examination. 
 
 6th. As to the Oaths to be taken. — The next step is to take the 
 necessary oaths. The oath (or affirmation, if by a quaker) requisite, 
 is, that he will truly and honestly demean himself in the practice of 
 
 1 22 Ceo. 2. c. 4G. s. 10 ; 1 B. & P. 90. 
 
 2 Tlie following jjractical instructions as to admissions into the Court of King's 
 Bend:, are to be found in Mr. Archbold's Practice, vol. i. p. 17 : — Call at the 
 IMaster's oliice, and get the original allidavit of the execution of the articles, which 
 had been filed there. Having made the affidavit of service, and the affidavit of 
 the payment of the stamp duties above mentioned, before a Judge, carry these 
 three affidavits, and that part of your articles which was signed by your master, 
 to the Judge's chambers; give them to the clerk, who will then introduce you 
 and yoTir master (if he accompany yon) to the Judge. If your master do not 
 accompany you, it \\ ould be right, perhaps, (if he has not joined in the affidavit 
 of service) that he should certify your service upon the back of the articles. The 
 Judge, upon examining these articles and the affidavits, and upon examining you 
 as to your fitness, will, if he deem you fit and duly qualified, grant his fiat for your 
 admission. Pay the clerk 10s. Gd. Carry this fiat, and the affidavits, to the 
 IMaster's office, and give them to the clerk : pay him 25/. (the amount of the stamp 
 duty upon the admission, 55 Geo. 3. c- 184.) and his fees; he will then engross 
 your admission, and inform you at what time you are to attend in court to be 
 sworn. 
 
 3 2 Geo. 2. c. 23. s. 2 & 4.
 
 CAP. I.] RELATIVE TO ATTORNIES AND SOLICITORS. 21 
 
 an attorney, according to the best of his knowledge and ability. He 
 must also take the oath of allegiance and supremacy, and subscribe 
 the declaration against popery.' If the clerk is a Roman Catholic, 
 he may, in lieu of these oaths and declaration, take the oath pointed 
 out by the 31 Geo. 3. c. 32, which was passed, and has been since 
 amended by the 43 Geo. 3. c. 30, to relieve papists, and others pro- 
 fessing the popish religion, from certain penalties and disabilities to 
 which they had, until that period, been subjected. 
 
 7th. As to the actual Admission and Enrolment. — When once ad- 
 mitted, which the clerk must be now looked upon as being, (all the 
 necessary formalities having been gone through,) the Judge delivers 
 to him a copy of his admission, written on parchment, in English, in 
 a common legible hand,^ and properly stamped.^ All that it is then 
 necessary to do, is, to take care that it be enrolled. This must be 
 done by the proper officers of the courts into which the party is ad- 
 mitted, without a fee."* This entry must be kept in alphabetical order, 
 to which all persons may have access gratis.^ The period of ad- 
 mission must be also specified, c 
 
 8th. As to Admission into various Courts. — An attorney sworn, 
 admitted, and enrolled, in any of the courts of law mentioned in the 
 2 Geo. 2. c. 23. s. 1, may be admitted a solicitor in any of the 
 courts of Equity therein mentioned,'' without any fee for the oath, or 
 stamp on the parchment on which such admission is inscribed.^ 
 So an attorney, in any of his Majesty's courts of record at West- 
 minster, is capable of being admitted to practise as an attorney in 
 any inferior court of record, provided he be, in other respects, qua- 
 lified to be admitted in conformity with the customs of such inferior 
 court. ^ So a solicitor in any of his Majesty's courts of Equity at 
 Westminster may be admitted an attorney of his Majesty's courts 
 of King's Bench, or Common Pleas ;^*' and a solicitor in any of the 
 courts of Equity, mentioned in the statute of the 2 Geo. 2. may be 
 admitted a solicitor in any of the other or inferior courts of Equity." 
 But a solicitor, on the equity side of the Court of Exchequer, is not 
 entitled, as such, to practise in the Court of Chancery.'^' By the 
 
 1 2 Geo. 2. c. 23. s. 13 ; 12 Geo. 2. c. 3. s. 8 ; 7 & 8 W. 3. c. 24 ; 13 W. 3. c. 6. 
 One shilling is payable for the administering of such oath, 2 Geo. 2 c. 23. s. 6. 
 
 2 2 Geo. 2. c. 23. s. 6. 3 The stamp is 25/., 55 Geo. 3. c. 184. 
 
 4 2 Geo. 2. c. 23. s. 6. 
 
 5 Id. (See Rex. v. Crossley, 2 Esp. 526.) 
 
 6 Id. 7 Id. sec. 3. 8 Id. sec. 20. 
 
 9 6 Geo. 2. c. 27. s. 2. i" 23 Geo. 2. c. 26. s. 15. 
 
 11 2 Geo. 2. c. 23. s. 21. u Vincent v. Holt, 4 Taunt. 459.
 
 22 LAW TRACTS. KO. I. [cAP. I. 
 
 34< Geo. 3. c. 14. s. 5. a solicitor, or attorney, in any of his Majesty's 
 Courts at Westminster, may be admitted a solicitor, or attorney, in 
 any of the other courts, without payment of any further stamp-duty. 
 But by sec. 6. an attorney, admitted in one of the courts of Great 
 Sessions in Wales, or of the counties palatine, is not entitled to 
 practise in the superior courts without admission therein ; and he 
 cannot, of course, be so admitted without the payment of the higher 
 duty, imposed in such cases, i 
 
 Sect. 3. — As to tlie Certificate. 
 1st. In general. — The last subject of the present chapter is the 
 certificate of an attorney, by means of which he is enabled to re- 
 present and act as a substitute for others in court. ^ This was first 
 required by the statute 25 Geo. 3. c. 80. By a subsequent enact- 
 ment of the legislature,^ every attorney is required to deposit, be- 
 tween the 15tli of November and the 16th of December, in each year, 
 with the commissioners of stamps, or their appointees, at the head 
 office in Middlesex, a memorandum in writing, containing the name 
 and usual place of residence of such attorney. A certificate must 
 be then delivered to the applicant : it should, in the next place, be 
 entered with the proper officer of the court in which the attorney 
 was admitted.^ It, in all cases, expires on the 15th of November,5 
 without any reference to the day on which it is dated. If taken out 
 before the 16th of December, it will have relation back to the 15th 
 of November, and protect the attorney from penalties incurred prior 
 to that period, for having practised without a certificate; but if pro- 
 cured after the 16th of December, it will only refer to the day on 
 which it issues.^ 
 
 ^ It is also declared to be lawful for any person who shall be sworn, admitted, 
 and enrolled, to be an attorney in any of his Majesty's courts of record at West- 
 minster, courts of the counties palatine, courts of Exchequer at Chester, and courts 
 of the Great Sessions in Wales, by and with the consent and permission of any 
 attorney in any of the said other courts of record, &c. such consent being in writing, 
 signed by such attorney, and in the name of such attorney, to sue out any writ or 
 process, or to commence or prosecute any actions or other proceedings in such court, 
 notwithstanding such person is not admitted an attorney of such court : 2 Geo. 2. 
 c. 23. s. 10. 
 
 2 Indemnity acts are occasionally passed to relieve attomies who have neglected 
 to take out their certificates. 
 
 a 37 Geo. 3, c. 90. s. 26. 4 54 Geo. 3. c. 144. 
 
 5 Id. s. 27. 
 
 « See 37 Geo. 3. c. 90. s. 26; 54 Geo. 3. c. 144.
 
 CAP. I.] RELATIVE TO ATTORNIES AND SOLICITORS. 2S 
 
 2d. Duties Pmjahle on. — The duty payable on certificates is re- 
 gulated thus : if the attorney reside within London or Westminster, 
 or within the Hmits of the twopenny post; tlien, if he has not been 
 admitted three years, he is to pay 6/. yearly ; but if three years, or ^^■ 
 more, \2L : if he reside beyond the limits of the twopenny pos't, and ^^• 
 has not been admitted three years, he is to pay 4/. yearly ; but if .?/ 
 three years, or more, 8/.' &l- 
 
 od. Registry of. — The certificate must be entered in one of 'the 
 courts in which the person described therein has been admitted and 
 enrolled. This must be done with the respective officers of the 
 different tribunals appointed by the 25 Geo. 3. c. 120. to grant cer- 
 tificates of enrolment, or admission, (viz. the chief clerk of the King's 
 Bench, or his deputy ; and the clerk of the warrants in the Com- 
 mon Pleas, or his deputy). These officers shall, vipon payment of the 
 fee of 1*. enter in an alphabetical list, to be kept for that purpose, the 
 names of the persons described in such certificates, together with 
 the places of their residence, and the respective dates of the cer- 
 tificates; to which free access may, at all periods, be had, for the 
 purpose of inspection.- Should it happen, that a mistake in obtain- 
 ing the certificate of an attorney has been committed through the 
 inadvertence of an agent, as if the agent of an attorney of the court 
 ofCommon Pleas obtain his certificate for the court of King's Bench, 
 he will be permitted to re-file it in the former court.^ 
 
 Sect. 4. — As to the effect of unqualified persons practising ; and of 
 attornies themselves sanctioning such jn'actice. 
 
 This section is so intimately connected with the object of this 
 chapter, that it may not be here inappropriate to examine it. 
 
 It will have been noticed, that three requisites are indispensable 
 to an attorney being fitted to appear in court as agent for any suitor. 
 To guard against parties infringing the rules which the legislature 
 has given effect to, for the purpose of enforcing such qualifications, 
 in addition to the inherent power possessed by the Court, of inter- 
 fering where its officers act in contempt of its jurisdiction, there are 
 two clauses of the 22 Geo. 2. c. 46, the purport of which is as follows : 
 1st, to prevent unqualified persons practising quasi attornies; and, 
 2ndly, to disable those practitioners who countenance such habits, 
 by permitting their names to be made use of, or acting as agents, 
 from remaining on the roll of attornies. What those provisions are, and 
 
 1 55 Geo. 3. c. 184. - 37 Geo. 3. c. 90. s. 27. 
 
 * In tr Jones, 4 Moore, 347-
 
 ^ LAW TRACTS. NO. I. [cAP. I. 
 
 the effect of their being transgressed, will now occupy our attention. 
 It may be here, however, premised, as has been already shewn, > that 
 an attorney, in any of his Majesty's courts of record, at Westminster, 
 is not entirely debarred from practising in any of the other courts of 
 record, even although he may not have been actually admitted into 
 such courts. He may do so, upon his obtaining the written consent 
 of an attorney of the other courts of record. This does not, how- 
 ever, extend to permit attornies of the court of Great Sessions in 
 Wales, the counties palatine, or other inferior courts in England, 
 to practise in the courts at Westminster, either in their own name, 
 or in the name of any other person.-' 
 
 Previously to the passing of the ~2 Geo. 2. it was enacted by the 
 2 Geo. 2. c. 46. s. 7, that if any person sworn an attorney of any of 
 the courts of record at Westminster, should knowingly and v.ilfully 
 permit any person to sue out any process, or conduct any other 
 proceedings in his name, such person, not being a sworn attorney of 
 such court, should be incapacitated from acting as an attorney. Then 
 came the 22 Geo. 2. c. 46, in which it was provided by section 11, 
 that "if any sworn attorney, or solicitor, should act as agent for any 
 person not duly qualified to act as an attorney or solicitor, or per- 
 mit his name to be any ways made use of, upon the account, or for 
 the profit of any unqualified person, or send any process to such 
 unqualified person, thereby to enable him to appear, act, or practise, 
 in any respect, as an attorney or solicitor, knowing him not to be 
 duly qualified as aforesaid, the attorney so offending should be struck 
 off" the rolls, and for ever after disabled from practising as an attorney 
 or solicitor, and in that case it should be lawful for the Court to com- 
 mit such unqualified person, so acting as aforesaid, to the prisoil of 
 the said court, for any time not exccedhig one year." Where, 
 therefore, a motion was made in the case of Ex parte Clarke,^ to 
 strike two attornies off* the rolls, who, it satisfactorily appeared to the 
 Court from the Master's report, had knowingly permitted an un- 
 qualified person to practise in their names for his own benefit ; they 
 observed that it was their duty to do so, under the terms of the 
 statute, and that they were equally bound to interfere in a summary 
 manner, independently of the act. They then ordered the former 
 to be struck off" the rolls, and sentenced the unqualified person to 
 be imprisoned for three months. So, where an attorney engaged a 
 certificated conveyancer, not qualified to act as an attorney, to con- 
 
 ' Ante, p. 22. n 2 34 Geo. 3. c. 14. s. 4. 3 3 j>. & r. 260.
 
 I 
 
 L 
 
 CAP. I.] RELATIVE TO ATTORNIES AND SOLICITORS. 25 
 
 duct his business, allowing him the moiety of the profits instead of a 
 fixed salary ; and it appeared that both their names had been exhi- 
 bited on the door ; that suits had been carried on from instructions 
 taken in by the unqualified party, who, it was shewn, had been lately 
 articled to the attorney; and that bills were made out in their 
 joint names : the Court were of opinion, that this was a case within 
 the spirit and words of the 22 Geo. 2. c. 4G. s. 11.^ So, in the case 
 of In re Luckett and Thompson^' the former was sentenced to two 
 months' imprisonment, and the latter struck off the rolls under the 
 following circumstances : — it appeared, from the Master's report, that 
 Thompson had furnished Lucket with blank writs, for the purpose 
 of enabhng him, on filling them up, to arrange and compromise debts 
 (which had been done) as though he himself were an attorney. It 
 likewise appeared, that the writs had been signed by Thompson. 
 The judgment on Lucket was mitigated, as Lord Tenterden ob- 
 served ; it appearing that he had been in some degree misled by a 
 statement of Thompson's, that there was nothing wrong or illegal in 
 what he had done. But where a bailiff had written to an attorney 
 for writs, which the latter forwarded without knowing anything of the 
 parties or circumstances, but the bailiff never represented himself, 
 nor had been considered as an attorney, nor looked for any profit 
 upon the law proceedings ; Abbott, C. J. thought that the case did 
 not come within the act, but intimated, that if the Court found such 
 a system repeated, they would be disposed to visit it very severely. ^ 
 So, the Court of Common Pleas refused to strike an attorney ofi'the 
 roll, on an affidavit which stated, that the person who had lately 
 been his clerk, and who lived at a tow^n eight miles distant from the 
 residence of the attorney, and carried on business at an office, over 
 the door of which was Mritten the attorney's name, only attended 
 on market days, and then transacted all his business at an inn, — 
 on the ground that it should have been shewn, either that such 
 person participated in the profits, or carried on business on his own 
 account.'* 
 
 The Court, in the investigation of such facts, will, however, act 
 ■warily, and not trust to viva voce examinations. But in the case 
 of In re Jaques,^ after the matter had been referred to the master 
 of the Crow^n Office by consent of counsel, the Court of King's Bench 
 allowed him to bring the whole of the case under their own consi- 
 
 1 In re Jackson, 1 B. & C. 270. "- Mss. 1829. 
 
 ^ In re Whatton, 5 B. & A. 824. 4 9 Moore, 157 ; s. c. 2 Ding. 74. 
 
 <' 2 D. & R. CA.
 
 26 LAW TRACTS. NO. I. [CAP. I. 
 
 deration, when brought up to be committed : and in the Common 
 Pleas, after the Court had ordered the parties to be attached and 
 give bail to answer interrogatories before the Prothonotary, who re- 
 ported them to be in contempt, for not having satisfactorily answered 
 the interrogatories put to them, — such report was holden not to be 
 conclusive on the parties ; but that they might take exceptions to 
 any specific or material parts of it.' 
 
 Where an application was made for an attachment against a per- 
 son who had represented himself to be an attorney, and to whom the 
 applicant had paid a sum of money, in order to carry on certain pro- 
 ceedings, the application was negatived, since a precise remedy was 
 expressly pointed out by the enactment in the 2 Geo. 2. c. 24. s. 4, 
 which inflicted a penalty on a person guilty of any violation of its 
 provisions.^ 
 
 The next consideration is, what effect an unqualified person's 
 practising has on the proceedings in the cause. On this head it may 
 be observed, that, although an attorney renders himself liable to a 
 penalty for practising without a certificate, the proceedings taken by 
 him are not deemed irregular on that account ;^ and the circumstance 
 of the plaintiff's cause having been conducted by an attorney who 
 has not obtained his certificate, has been held not to deprive the 
 plaintiff of his right to full costs as against the defendant,'* — at all 
 events, where the client has advanced money out of pocket.' But 
 where an attorney's name had been set to process without his autho- 
 rity, the Court ordered the proceedings to Ije set aside, and granted 
 an attachment against the plaintiff's attorney.'^ So, where process 
 in the Common Pleas appeared to have been sued out in the name 
 of A. by B., neither of whom were attornies of this court, and B. had 
 no authority from any other attorney to act in his name, the Court 
 set aside the proceedings, and ordered A. and B. to pay the costs." 
 
 » 8 iAIoore, 214 ; s. c. 1 Bing. 272. 
 
 - Matthews v. Royle, G Moore, 70- See Barnes, 2/. 
 
 3 1 D. & R. 215 ; 2 Chit. Rep. 98. 
 
 4 Reader v. Bloom, 3 Bing. 3 ; s. c. 3 Law Journ. C.P. 120. 
 
 5 Young V. Dowlman, 3 Y. & J. 24. 
 
 6 Oppenheim v. Harrison, 1 Burr. 20. Hopwood v. Adams, 5 Burr. 24fiO. 
 ' 4 Moore, 603 ; sed vide Harding v. Purkiss, 2 Marsh. 228.
 
 CAP. II,] RELATIVE TO ATTORNIES AND SOLICITOUS. S(7 
 
 CHAP. II. 
 
 OF THE APPOINTMENT OF ATTORNIES AND SOLICITORS BY THEIR 
 
 CLIENTS. 
 
 Sect. 1. — As to the instances in which such Appointment can be made. 
 
 It has been already seen, that persons are, in general, enabled to 
 defend and conduct then* suits in person,^ with the exception of 
 corporations aggregate, in which instance the attorney must be 
 appointed under their common seal,^ and in cases of appeals of 
 murder.^ There are, however, some cases in which the policy of 
 the law debars individuals from the privilege of appointing legal re- 
 presentatives, where their presence in court is essential, or where, if 
 permitted, the exercise of the right would tend to endanger the 
 safety of the property of individuals, or be inconsistent with the 
 relative situation of particular parties. It is also invariable in all 
 criminal cases, that the party should personally appear,^ in the ab- 
 sence of express leave from the Court.^ 
 
 In conformity with the above rules, the Court will oblige a person, 
 who stands in contempt, to appear in court ;^ for, were a contrary 
 rule to prevail, the inevitable consequence would be — that the object 
 of the cognizance of the case by the tribunal before which it is 
 brought, would be defeated. Again, for instance, in an appeal of 
 mayhem, in which case the defendant is entitled to claim oyer 
 of the mayhem ; if the plaintiff were allowed to appear by 
 proxy, the merits of the case would never be subjected to a strict 
 and proper investigation.'' So, on the grounds of public policy, a 
 feme covert,^ or an idiot,^ or an infant,'^ cannot appoint an attor- 
 
 1 Uppendale v. Lightfoot, Say. 21/. See 2 H. Bl. 600. 
 
 2 Co. Litt. 666. 
 
 3 Wilson V. Laws, 1 Salk. 69 ; Carth. 652 ; 1 Chit. Crim. Law, 555 ; scd vide 
 1 Salk. 192. 
 
 4 2 Hawk. P. C. 373, &c. ; 3 Mod. 268 ; 4 id. 99 ; 2 Jones, 210. 
 6 Bacon's case, 1 Lev. 146 ; 3 Inst. 126; 2 Hawk. P. C. l/C 
 
 6 F. N. B. 26. E. & N. ; Co. 58, a, b ; 1 Roll. 366 ; 8 Co. 682 ; and 58, b ; 2 Cro. 
 462; Cro. Jac. 616. 
 
 7 2 Inst. 313. 
 
 8 Co. Litt. 136; Oulds v. Sansom, 3 Taunt. 261. 
 » 4 Co. 124, b ; Dennis v. Dennis, 2 Saund. 335. 
 
 '0 Coan V. Bowles, Carth. 179 ; Grell v. Richards, 1 Lev. 294.
 
 2S LAW TRACTS. NO. I. [CAP. 11. 
 
 ney.' But where a husband and wife are sued jointly, they may appear 
 by attorney, for the husband is capable of appointing an attorney 
 for both.^ ' 
 
 Sect. 2. — As to the Mode of Appointment. 
 
 It was formerly the practice to appoint attornies when actually 
 present in court. ^ They were subsequently appointed out of court, 
 by warrant of attorney, in writing, authorizing them to prosecute or 
 defend the suit in question on behalf of the person appointing them. 
 According to the present practice, no other than an authority by 
 parol is ever given by the client to the attorney, or, indeed, required 
 by the latter, excepting, perhaps, in cases where the attorney may 
 be fearful of his client's afterwards disclaiming the authority, and 
 may, on that account, require a warrant, or other document, in 
 writing, to serve as evidence of his retainer. But as this can rarely 
 be the case, inasmuch as there will, in general, be some corre- 
 spondence or intercourse between the client and the attorney, that 
 will suffice to establish the relative situation of principal and agent ; 
 all that usually transpires between the parties as to the retainer is, a 
 request on the one side, that an action should be brought, or a de- 
 fence made, and a promise on the other, that the attorney will use 
 his best exertions and endeavours to consummate the end his em- 
 ployer may have in view."* But although an attorney's appearance 
 without a warrant is a good appearance as to the court, the attorney 
 himself becomes liable to an action, in consequence of the omission 
 to comply with the formality.* 
 
 ' Infants sue by prochein amy, or guardian, and defend by guardian. Idiots 
 must sue and defend in person ; and yet lunatics of full age appear by attorney, 
 4 Co. 124, b. ; 2 Saund. 333, n. 4. 
 
 2 Foxwist V. Tremaine, 2 Saund. 217. So in Com. Dig. Tit. Pleader, 2 C. 1. 
 where it is said, that if several sue jointly, and some are within age, and some 
 of full age, and all appear by attorney, those of full age may make an attorney for 
 the infant. See 1 Roll. Abr. 288, pi. 3. But though it is said that infant exe- 
 cutors may sue, yet they cannot be sued by attorney, Frescobaldi v. Kinaston, 
 2 Str. 784. And before the statute of 21 Ja. 1. if an infant was sued by attorney 
 instead of by guardian, it was error, though judgment was given for him, Cro. 
 Jac. 4 ; 1 Roll. Abr. 287, pi. 3 ; Cro. Eliz. 424. "And it appears," adds Mr. Williams, 
 in his notes to 2 Saimders, 212, a. " that ever since the statute the plaintiff's in- 
 fancy may be pleaded in abatement." 
 
 3 1 Wiis. 39. 
 
 4 See 1 Tidd, 10(5, &c. 2nd edit. ; 1 Arch. Pr. K. B. 22 ; Prior v. Hale, Str. 348; 
 Vincent v. Borduro, 2 Keb. 199. 
 
 i Anon. 1 Keb. 89.
 
 CAP. Il.J RELATIVE TO ATTOIIKIES AND SOLICITORS. 29 
 
 At common law, the warrant of attorney might have been filed 
 and entered of record, at any time previous to the judgment.^ But 
 it seems to have been the intention of the legislature to have intro- 
 duced an alteration into the law in this respect, by passing several 
 acts of parliament;- by the last of which it is provided, "that the 
 attorney, for the plaintiff, shall file his warrant of attorney with the 
 proper officer, the same term he declares, and the attorney for the 
 defendant the same he appears, under the penalties inflicted by 
 former laws." Upon this act of parliament the Court of King's 
 Bench made a rule,^ " that the defendant's attorney shall, at the 
 time of his appearance, give his warrant to the plaintiff's attorney, 
 who shall file it at the same time he files, or ought to file, his own, 
 and for which the defendant's attorney shall pay him id. at the time 
 the declaration is delivered or taken out of the office ; and if the 
 defendant's attorney refuses to pay the same, the plaintiff's attorney 
 may sign judgment." Notwithstanding these regulations, however, it 
 has been determined, that the warrants of attorney may be Jiled, so 
 as to support the proceedings, at any time j^endente lite, or before final 
 judgment, though the attorney subjects himself to a penalty for not 
 filing them in due time :"* previously to that, the Court will always intend 
 them. And the plaintiff, in the King's Bench court, cannot sign judg- 
 ment for the defendant's refusing to pay 4f/. fortlie warrant of attorney, 
 when a copy of the declaration is delivered to him.^ And it has been 
 even decided, that, although an attorney may be punishable for not 
 filing his warrant within the time specified by the statutes above 
 mentioned, yet his omission to do so is not a ground of error,^ and, 
 if made the subject of an assignment, will be set aside,' or the attor- 
 ney allowed to file and enter his warrant after error brought.^ 
 
 It was formerly the practice in the court of King's Bench to enter 
 the warrants of attorney on a distinct roll, kept for that particular 
 purpose f but in the reign of James II. such practice began to be 
 discontinued, and the custom adopted, which exists at the present 
 day, of making an entry on the top of the issue-roll.'*^ They are 
 
 1 Lovegrove v. Dymond, 4 Taunt. 669. 
 
 2 18 H. 6. C.4; 32 H. 8. c. 30. s. 2 & 3 ; 18 Eliz. c. 14. s. 3 ; 4 & 5 Ann. c. 16. 
 
 3 R. M. 6 Ann. 2. K. B. 
 
 4 Fitzg. 194 ; 2 Lord Raymond, 532; 1 Wils. 188 ; 1 Str. 526. 
 6 O'Neale v. Price, 4 T. R. 370. 
 
 6 Coke V. Allen, 8 Mod. 77- 
 
 7 Chartres v. Cusaick, 1 Str. 141. 
 
 8 Dy. 180, a; 225 a. 
 
 9 Parson v. Gill, 1 Salk. 58. i<^ Ibid.
 
 80 LAW TRACTS. NO. I. [cAP. II. 
 
 still, however, entered in the court of Common Pleas, by the tTerk 
 of the warrants, on distinct rolls, which are filed in the bundle of 
 common rolls in that court : it is also the invariable practice for 
 the clerk of the treasury to refuse to sign or seal any record of ni^i 
 prills, or for the exigenter to receive any phiries cajnas, in order to 
 make an exigent or proclamation thereon, previously to its being 
 signed or stamped by the clerk of the warrants, or his deputy.' So, 
 by a rule of the court of Common Pleas,-^ no judgment, with the ex- 
 ception of final judgments upon posteas, and writs of inquiry and 
 nonprosses, shall be signed by any of the prothonotaries, unless the 
 stamp of the clerk of the warrants be first impressed on the paper, 
 upon which such judgment is to be signed. The omission of an 
 attorney to obtain a warrant is, however, aided after verdict by the 
 statute oi jeofails.^ 
 
 It should be always borne in mind, in those cases in which it 
 is necessary that a warrant should be obtained, that accuracy and 
 precision in the statement of its contents are indispensable. It must 
 be consequently exempt from any mistakes — as, in the name of the 
 party who appoints the attorney, the attorney himself, or the de- 
 fendant in the cause ; for where a christian name was erroneously 
 inserted, the Court deemed such misdescription sufficient to inva- 
 lidate the instriiment \^ and it has been even thought requisite, in 
 a suit by an executor, to state the representative cha'ractet witlf 
 which he is invested.'' But by the statute of 8 H. 6. c. 12. a; 
 misprision of the clerk in the wan-ant may be amended in affirm- 
 ance of the judgment.^ Where, therefore, the defendant was stated, 
 in the warrant of attorney, bailiff hugi for burgi, an amendment was 
 allowed.'' So where in scire facias, on a recognizance of bail, the 
 warrant of attorney was de placito transgj'essionis super cOsum scire 
 facias, the words transgressionis super caswn were allowed to be- 
 erased, and the term debiti inserted.^ 
 
 It only remains to be observed, with regard to the warrant of 
 
 1 R. H. 2 & 3 Jac. 2. C. P. 
 
 2 R. M. 5 Geo. 2. C P. ; and see R. T. 35 H. 6. s. 4 ; R. H. 14 & 15, Car. 2. 
 reg. 2. C. P. 3 32 H. 8. c. 30 } 18 Eliz. c. 14. 
 
 4 Terrel v. Terrel, Dy. 93, b ; 1 Roll. 289. 1. 30. 35 ; id. 336. 387 ; Moore, 711 ; 
 Philips V. Smith, 1 Com. Rep. 279 ; see 1 Str. 136. 
 
 5 Dub. 1 Roll. 289. 1. 25. 
 
 6 Richards v. Brown, Doug. 114 ; see 1 Bl. Rep. 453. 
 
 7 Philips V. Smith, 1 Com. Rep. 279; see 1 Str. 136. 
 
 8 The Dutch East India Company v. Henriques, Ca. Prac. 44 ; id. 10. See 
 3 Bulstr. 202 ; 1 Salk. 88; 2 Ld. Raym. 896; Moore, 711.
 
 CAP. II.] RELATIVE TO ATTORNIES AND SOLICITORS. 81 
 
 attorney, that, by the act of parhament which subjected it to a stamp 
 duty,' no attorney could sue out any writ or process, or commence, 
 prosecute, or defend, any action, unless he had delivered to the 
 office!*, or his deputy appointed to sign or issue the first process for 
 the plaintiff, or to enter, file, or record the bail or appearance for 
 the defendant, a memorandum , or minute of his warrant, duly 
 stamped with a 5s. stamp,- containing the names of the parties, the 
 court, and the attorney ; and where a prcecipe was required (except 
 for an original), the nature and denomination of the process, and 
 the return of it, which memorandum or minute the said officer, or 
 his deputy, was to receive, and forthwith enter or file of record, 
 and sign thereon the day of delivering it. A similar memorandum, 
 or minute was required by the same act, previous to entering up 
 judgment on a cognovit actionem, or warrant of attorney. ^ A pro- 
 vision was made by the 17tli section of the act, to prevent any 
 action being staid, or judgment reversed in consequence of any 
 omission or defect in entering or filing this memorandum. It will, 
 however, be in the recollection of most of our readers, that this 
 stamp duty was repealed by the 5 Geo. 4. c. 41. s. 1. 
 
 Sect. 3. — As to an Attorneys being bound to accept a retainer. 
 
 An attorney, although belonging to the courts of justice, and 
 considered as a public officer, is not obliged to accept a retainer,"* 
 nor bound to appear in court on the behalf of any one, unless he 
 take his fee, or enter into an express or implied engagement to 
 do so :^ but after he has undertaken to appear, or accepted a war- 
 rant or declaration, or subscribed process, he cannot refuse to act;*' 
 still less can he, after accepting a retainer from one party, coia- 
 duct the proceedings on the part of his opponent.'' It is even 
 said, that, under such circumstances, he cannot retract, although 
 
 1 25 Geo. 3. c. 80. s. 3, &c. 
 
 2 48 Geo. 3. c. 149. Sched. Part II. & III. ; 65 Geo. 3. c. 184. Sched. Part II. & III. 
 » Id. s. 6. 
 
 4 In re Town-clerk of Nottingham, 1 Sid. 31. 
 
 5 Oades v. Woodward, 1 Salk. 87 ; sed vide 12 Mod. 683. in which case the 
 Court, on the application of the plaintiff, who was unable to find any one to un- 
 dertake his cause, appointed an attorney of his own nomination : et vide, Y. B. 21 
 H. 6. f. 4. pi, 5 ; Co. Litt. 296, a. 
 
 6 Anon. 6 Mod. 42; Kilbeyu. Weyberg, 12 id. 251 ; Lorymerr. Hollister, 1 Str. 
 693; 1 LU. Prac. Reg. 102. 
 
 'J Inn Town-clerk of Nottingham, Sid. 31 ; 19 Ves. 261.
 
 gg LAW TRACTS. NO. I. [CAP. II. 
 
 his client should not supply him with money/ on the principle that 
 if an attorney undertake a suit, trusting to the credit and respousi- 
 bility of his client, it is incumbent upon him to proceed in it at all 
 events.^ But although it is no more than reasonable that an attorney 
 should not be permitted to discontinue proceedings, upon his client's 
 neglect to comply with an immediate demand of money to meet the 
 necessary expenses incident to the proceedings, it may be suggested 
 whether a continued refusal or neglect, after reasonable notice, to 
 supply funds, would not be considered a sufficient reason for the 
 attorney to refuse to conduct his client's cause through its sub- 
 sequent stages.^ 
 
 These rules are not, however, productive of oppression to the 
 attorney : the law does not impose a duty on him without a commen- 
 surate advantage ; for, on the other hand, the client, it will be imme- 
 diately seen, cannot countermand the attorney's retainer,** except by 
 obtaining the leave of the Court to change his legal representative. 
 
 Sect. 4. — As to the effect of an Appointment. 
 a. On the Attorney himself. — The fact of appointment, as far 
 as relates to the attorney, it has been seen, operates so as to 
 unite the interests of the respective parties, and prevent the 
 attorney's accepting a retainer from the other, or ceasing to 
 act after he has once undertaken to fill the responsible situation 
 he has assumed.^ Bound as he, however, is, to perform what 
 are his client's instructions, with care, integrity, and skill, he 
 is not obliged to comply with his requisitions when the object is 
 delay; as where the greater part of the business, in respect of 
 which the attorney claimed renumeration, had been performed as the 
 representative of the defendant ; and it appeared that on one occa- 
 sion the defendant had requested that, for the sake of delay, a plea 
 in abatement should be put in, of his being in partnership with 
 another person ; and the defence stated was, that the plaintiff had 
 neglected to put in this plea, in consequence of which, there had been 
 a judgment against the defendant alone ; Lord Ellenborough, Chief 
 Justice, said, that as the defendant had confessed that the plea was 
 
 1 Mordecai v. Solomon, Say. 1/2. 
 
 2 Id. ; and see 14 Ves. 196. 271. 
 
 ' The Attorney-General, at the relation of Bradley v. ; H. T. in CIl 
 
 1825, Mss. 
 '^ R. M. 1654; Lil. Prac. Reg. 134. 143. 
 5 See preceding section.
 
 CAP. 11.] RELATIVE TO ATTOIINIES AND SOLICITORS. S3 
 
 merely for the purpose of procrastination, he could not complain of 
 disobedience to such instructions.' So an attorney does not incur 
 any culpability for suffering judgment to be signed by default, 
 although he may have been instructed to plead, if his client be bond 
 fide indebted.^ 
 
 b. On the Client. — Concurrently with the general principles which 
 are observed by the Courts in holding a principal liable for the acts 
 of his agents, it is an established rule that a client is bound 
 by the consent of his attorney.*^ And, indeed, were a contrary system 
 to be sanctioned, it would lead to continued acts of collusion between 
 attornies and their clients, and the latter would negative the autho- 
 rity of the former, whenever the tendency of the proceedings was 
 likely to be disadvantageous to their interests. When, therefore, 
 the attorney agrees to refer,^ the former cannot withhold his ac- 
 quiescence ; or disavow his authority to compromise a suit ;^ or to remit 
 damages. *" But in the case of Short v. Edwards,'^ it was held, that 
 a letter, written by the plaintifi^'s attorney, demanding payment of 
 an inclosed bill, did not debar the plaintiff* from availing himself of 
 the production of evidence of other matters not included in the bill. 
 
 Sect. 4. — As to the extent of his authority. 
 
 In a former part of this treatise it will be remembered, that it has 
 been shewn, that an attorney may, in such character, discharge and 
 fulfil those obligations and duties which, although he has not speci- 
 fically bound himself to attend to, are so intimately connected with 
 the object of his employment, as to render them an essential and 
 component part of the implied contract he has entered into with his 
 client. To notice, however, the nature and extent of the powers 
 expressly intrusted to him, it will be necessary to view them, in two 
 lights : first, where an authority has been delegated to him, for the 
 purpose of attaining a definite object ; and, secondly, where his 
 client has enabled him to act as his legal representative in all matters 
 which may require the attention and superintendence of a profes- 
 sional person. Supposing, therefore, that a limited authority be 
 only vested in the attorney, it may be laid down as a general rule, 
 
 ' Johnson v. Alston, 1 Campb. l/G- See Jenk. 52. 
 3 Anon. Barnes, 38. See 2 Salk. 515. 
 
 3 Latuch V. Pasherante, 1 Salk. 86. See 1 Roll. Abr. 717 ; Cartb. 412; Skin. 679. 
 
 4 Filmer v. Delber, 3 Taunt. 486. » Lloyd v. Willan, 1 Esp. 178. 
 fi Lamb v. Williams, 1 Salk. 89 ; s. c. 1 Mod. 82. "l- 1 Esp. .'^74. 
 
 VOL. n. r
 
 34 LAW TRACTS. NO. I. [CAP. H. 
 
 that his power remains unaffected until the end the client con- 
 templates is fully attained. Should it consequently occur that an 
 attorney is appointed in a superior court, and conusance is subse- 
 quently claimed by an inferior jurisdiction, it does not become re- 
 quisite to appoint another attorney ; the situation of the one first 
 nominated still remains the same, and he is entitled to appear in the 
 inferior court on behalf of his client.^ 
 
 In those instances in which the attorney has been merely employed 
 to conduct a specific cause, the warrant under which he acts continues 
 in operation until final judgment has been obtained, and for the 
 space of a year and a day afterwards, in order to enable the party to 
 sue out execution and render' it available, unless it is previously re- 
 called by the act of the principal, which it will be hereafter seen can 
 only be done in a court of common law, by order of the Court, or 
 leave of a Judge, or determined by the death of the attorney. ^ 
 So it is laid down, that he may acknowledge satisfaction on the roll, 
 and receive the amount of the debt and costs.^^ But in the case 
 of Tipping V. Johnson,4 it has been determined, in the Court 
 of Common Pleas, that the authority of an attorney is only 
 co-extensive with the period required for obtaining judgment, and 
 that therefore a plaintiff may sue out execution by a different 
 attorney from the one originally nominated in the cause, without 
 obtaining an order of court. And whenever the proceedings 
 are carried ad cdiud examen, or where the state of the cause is 
 such, as to involve questions collaterally affecting parties not imme- 
 diately interested in the decision of the point at issue, a new attorney 
 may be thus chosen, and the powers of the first become nugatory. 
 When, therefore, the action is carried by writ of error to a superior 
 court, the authority conferred by the client ceases. The writ of 
 error is viewed as a new suit, and, as such, equivalent to original 
 proceedings.^ So a warrant of attorney for the plaintiff, in the action 
 against the principal, cannot extend to a scire facias against the 
 bail;^ or to revive the judgment;" but there must be a new warrant 
 
 I 21 Ed, 3. 45, b. 61; 21 Ass. pi. 17 ; 1 Roll- Abr. 290, 291. 1. 5. 
 
 ^ 1 Roll. Abr. 295. pi. 25 ; 2 Inst, 3/8 ; 3 Run. Ej. 428 ; Lawrence v. Harrison, 
 Sty. 426. et post, Ch. viii. 
 
 3 ^\non. 12 Mod. 440. ^ 2 B. & P. 357- 
 
 5 Batciielor v. Ellis, 7 T. R. -337 ; Parsons v. Gill, 2 Lord Raymond, 895 ; s. c. 
 1 Salk. 88. 
 
 « Burr V. Atwood, 1 Salk. 89 ; 2 id. 603 ; 2 Lord Raymond, 1252. See 2 Show. 
 61 ; 1 Keb, 593. 
 
 7 Herd v. Burstowe, Cro. Eliz. 1/7; Treviban v. Lawrence, 2LordRaym. 1048.
 
 CAP. II.] RELATIVE TO ATTORNIES AND SOLICITORS. 35 
 
 of attorney, on the ground that such is a new cause, and a different 
 record : and as a scire facias is a distinct action ; and as the pur- 
 poses for which it is had recourse to, are, although arising out of 
 previous proceedings, dissimilar in their operation,^ it may be sued 
 out by a new attorney without leave of the Court, or even giving notice 
 that such an alteration has taken place.^ 
 
 On the other hand, where a general authority is conferred on an 
 attorney, his powers, in all matters appertaining to his appointment, 
 are unlimited. And should it even in such a case happen, that he 
 is directly prohibited from doing an act otherwise clearly within 
 the scope of his employment, the Court will not interfere, but leave 
 the individual, who has sustained any injury, to seek his remedy 
 against the attorney himself.3 When a general authority is given, 
 it remains in force until it is withdrawn. Where, therefore, an 
 authority was given to an attorney to protect the defendant from 
 arrests ; and before it was countermanded, the former gave an under- 
 taking to put in bail for the latter, — the Court refused to set aside the 
 proceedings, on the behalf of the defendant, although he disclaimed 
 the authority of the party'* who assumed to act as his agent. 
 
 Sect. 5. — As to the determination of the Attorney s Authority^ 
 
 1st. By lapse of time. — Having already noticed, that a client is, 
 at all times, enabled to discharge an attorney from his employment, 
 it now becomes necessary to refer to those, instances in which, inde- 
 pendent of the client's acts or wishes, his authority is put an end to. 
 The first one that may be noticed is, the determination of an at- 
 torney's power by lapse of time. This has been already enlarged 
 upon, in the last section, in which it was shewn that, after the ex- 
 piration of a year and a day, a judgment is presumed to be satisfied, 
 and therefore the authority of the attorney is vacated, unless he 
 sue out execution within the year. 
 
 2d. By death. — In case of an attorney's death during the pen- 
 dency of a suit, his warrant ceases to exist;"' and by statute 4 H. 4. 
 c. 18, the justices are empowered to appoint another in his place. 
 In such case it is necessary to give notice to the opposite party of 
 
 ' See Tifld's Prac. 1139, 8th edition. ^ Hussey v. Welby, Say. 218. 
 
 3 Filmer v. Delber, 3 Taunt. 486. 4 Buckle v. Roach, 1 Cliitt. Rep. 1!>3. 
 
 5 1 Lil. P. R. 141. So his authority will terminate on the death of a sole 
 plaintiff, Cutfield v. Comey, 2 Wils. 83; and in some cases of a sole defendant, 
 Anon. 1 Salk. 84 ; Sibbet v. Russcl, Ca. Temp. Hardw. 183.
 
 36 LAW TRACTS. NO. I. [cAP. II. 
 
 the appointment of a new attorney, before any proceedings can be 
 adopted by him ;' and if the party, who employed him, being cog- 
 nizant of his deatli, refuse to appoint another attorney, his opponent 
 may proceed in the action.^ 
 
 3d. B// order of Court, or a Judge. — It will be seen, in a sub- 
 sequent part of this treatise, that the Court, by virtue of the power 
 they possess over their officers, may strike an attorney off the rolls 
 for misconduct, or any improper demeanour of a flagrant description. 
 In such a case, should it so happen that the attorney is, at that 
 period, conducting a cause for his client, the latter must, as in case 
 of the attorney's decease, inform his antagonist of the individual he 
 has chosen in his stead to act as his legal representative. 
 
 Sect. 5. — As to an Attorney s acting without due Appointment. 
 
 Having now detailed those instances in which it is competent to 
 parties to appoint an attorney ; having examined the mode of ap- 
 pointment, and its effect, both on the attorney and client ; and also 
 exhibited to the reader the extent of an attorney's authority, and 
 how it becomes determined ; the question naturally arises, what 
 effect is produced either on the attorney or his client, supposing the 
 latter is not regularly deputed by the former to appear in court. 
 On such occasions the Courts have, in general, refused to interfere 
 with the proceedings in the cause : they have permitted the suit to 
 proceed, as if the attorney had been fully authorized, and left the 
 individual, who has been injured, to protect himself by commencing 
 an action against the attorney.^ It would, however, seem, that if 
 the attorney be not a respectable person; nay even, if any suspicion 
 attaches as to his being answerable in damages, the party prejudiced 
 will not be left to the circuitous method of remedy by action : the 
 proceedings in the cause will be set aside. ^ But in a more recent 
 case,^ where an attorney, under a forged authority, commenced an 
 action for a debt, received the amount of it from the defendant, and 
 paid it over to the person who assumed to invest him with a power 
 to act ; the Court held, that this was no bar to an action brought by 
 the real plaintiff for the same debt ; that the defendant might recover 
 the sum he had previously paid, from the attorney ; and the attorney 
 
 1 Ryland v. Noakes, 1 Taunt, 342. 
 
 2 1 Lil. P. R. 137 ; Sty. P. A. 13; 2 Keb. 275 ; Jenk. 179. 
 
 3 London v. HUl, Pr. Reg. 177 ; Anon. 1 Keb. 89 ; Anon. 1 Salk. 86. 
 
 4 Anon. 3 Salk. 60 ; 1 Salk. 88 ; 6 Mod. 16. 
 •'• Robson ». Eaton, 1 T. R. 62.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 37 
 
 might recover it from the person who had clothed him with a false 
 character. In the same manner, it is presumed, that where an at- 
 torney acts without authority, his proceedings shall not prejudice the 
 person for whom he assumes to act. 
 
 CHAP. III. 
 
 RELATIVE TO THE RIGHTS AND PRIVILEGES OF ATTORNIES AND THEIR 
 
 CLIENTS. 
 
 Sect. 1. — As to the Rights and Privileges of Attornies. 
 
 1st. As to his Privileges. 1. As to the mode of Suitig and being 
 Sued, and proceedings incident thereto. — Certificated attornies, being 
 officers of the court, are, whilst actually practising and fulfilling the 
 duties of their profession, entitled to many privileges, which it is our 
 object to point out in this section. The most important and salutary 
 immunities which exist, are those that appertain to proceedings in 
 courts of justice, instituted either by attornies in the capacity of 
 plaintiffs, or when called upon to answer any claims that may be 
 made against them. In the former case, the privileges they enjoy 
 are those of impleading parties, through the medium of a process, 
 pecvUiarly adapted to themselves, and of not only laying, but retain- 
 ing the venue in the county of Middlesex ; in the latter, of being 
 impleaded by bill, and of being exempt from execution against the 
 person. The minute nature of the proceedings in the different tri- 
 bunals, the qualifications to which they are subject, the particulars 
 in which they differ from ordinary actions, and the practical mode 
 of giving effect to them, will be examined in a subsequent portion of 
 this work. Our attention will be, in this place, confined to an in- 
 quiry into the general nature of such immunity, and the instances in 
 which the privilege does not originally attach, or becomes waived 
 from the subsequent conduct of the attorney. 
 
 The foundation of the privilege now under consideration, is the 
 supposed necessity of an attorney being always present in court. 
 It is allowed, not so much for the benefit of attornies, as of their 
 clients, and is accordingly one which the courts are, at all times, 
 sedulous in protecting from any infringement or violation. This 
 
 1 3 Taunt. 1(36.
 
 38 l.AW TUACTS. NO I. [cAP. IH. 
 
 may be seen by a reference to the case of Daffy r. Oakes,' where 
 tlie Court of Common Pleas rejected the inference drawn by counsel, 
 from the words used in the statute 24 Geo. 2. c. 44. s. 1, under the 
 following circumstances : — The action was by original, and brought 
 against a magistrate for false imprisonment. The defendant availed 
 himself by plea of his alleged privilege, as an attorney : and although 
 it was contended, that the acts complained of were committed by 
 the defendant, in the character of a justice of the peace ; and that 
 the requisitions of the statute 24 Geo. 2. had been complied with, 
 which declares, " that no icrit shall be sued out against, nor any 
 copy of any process at the suit of a subject served on, any justice of 
 the peace, for any thing done by him in the execution of his office 
 without one month's previous notice in writing ;" the words of which 
 clause, it was argued, clearly demonstrated that the privilege of an 
 attorney was, in such case, virtually taken away ; yet. Chief Justice 
 Mansfield said, that his character of an attorney still subsisted, 
 and that he thought it would have been a compliance with the act 
 of parliament had the defendant been proceeded against as an at- 
 torney, and a notice of a bill given ; notwithstanding it is worthy 
 of observation, his Lordship allowed that a bill could neither be de- 
 nominated a writ, nor a 2^^'ocess. Laying aside any remarks that 
 might suggest themselves on the perusal of this decision, in opposi- 
 tion to what fell from his Lordship, the case furnishes a potent ex- 
 ample of how reluctantly any construction is attended to, which 
 has for its object the circumscribing the enjoyment of this privilege. 
 The exemption of attornies from ordinary proceedings is, however, a 
 personal privilege. It is therefore necessarily confined to cases 
 where the attorney's situation is substantially such, and where it 
 remains unaffected by collateral circumstances, as his being sued in 
 conjunction with others, or assuming a new character entirely uncon- 
 nected with his individual capacity.' Where, therefore, an attorney 
 is not sued in his own right, but as a person acting in the represen- 
 tative character of executor, or administrator, he cannot object to 
 the plaintiff's adopting the process used in ordinary cases.- Upon 
 
 1 An attorney, by becoming a party to a bill of exchange, or promissory note, 
 does not, in the contemplation of the law, take upon himself the character of a 
 merchant. His privilege, therefore, in such case, attaches. Comerford v. Price, 
 Doug. 312 ; Atkins v. , 2 Chit. Rep. 63 ; Chitty on Bills, 14, Gth edit. 
 
 2 Taylor v. Fuller, Ca. Prac. 64 ; s. c. Pr. Reg. 64 j Drew v. Rose, 2 Lord Raym. 
 1398 ; Newton v. Rowland, 1 Lord Raym. 633 ; s. c. 1 Salk. 2 ; s. c. 12 JMod. 316 ; 
 Lawrence v. Martin, 1 Salk. /, 8 ; s. c. Holt, 46; Anon. 2 Sid. 15/; Keb. 177; 
 Latch. 190 ; Godb. 10; Dyer, 24 ; 2 Roll. Abr. 2/4.
 
 CAP. Iir.J RELATIVE TO ATTORNIES AND SOLICITORS. 39 
 
 the same principle it has been settled as an established rule of law, 
 that the privilege cannot be claimed where the attorney is sued 
 with an unprivileged co-defendant;^ as where an action is brought 
 against him, to which his wife is made a party, for a debt due before 
 the marriage.- This, it may be remarked, is not a rule applicable 
 to attornies alone ; for even in the case of members of parliament, 
 who, it is known, are exempted from arrest, in order to protect the 
 Sovereign from being deprived of the advice and assistance of his 
 advisers, although it is now clear and indubitable that this exemp- 
 tion is not affected by their being sued jointly with unprivileged 
 persons, the privilege was, at one time, not allowed^ to a member 
 when sued with another.^ Indeed, ^vere it to be otherwise, multi- 
 plicity of suits would be the inevitable consequence, for it could not 
 be for a moment contended that a common person could be sued by 
 attachment of privilege : the only course left for the plaintiff to 
 adopt in such a case, would, therefore, be, to institute separate 
 actions. An opinion appears, at one time, to have prevailed, that, 
 to deprive an attorney of his usual privilege, when sued as a co- 
 defendant, the nature of the action must have been necessarily joint; 
 but this distinction has been since decided to be untenable, as it is 
 not incumbent on the plaintiff to bring separate actions, merely to 
 avoid an encroachment on the attorney's privilege.^ But if an at- 
 torney be sued jointly with a privileged person, as with a member of 
 parliament for instance, he does not lose his privilege.'' 
 
 The privilege of attornies, as to being sued, it must be also 
 observed, is, in all cases, kept subservient to the general interests 
 of the community, and the established privileges of higher members 
 of the state. Where, therefore, there would be a failure, or defect 
 of justice, as where an appeal is brought in the King's Bench, a 
 real action in the Common Pleas, or a foreign attachment in the 
 Sheriff's Court of London, against an attorney of a different 
 court, the privilege will not be countenanced.'' So an attorney 
 
 1 Branthwait v. Blackerby, 2 Salk. 544; s. c. 12 Mod. 163; 1 Vent. 298: 
 Townsend v. Duppa, 1 Str. 610. 
 
 2 Robarts v. Mason, 1 Taunt. 254 ; Powle's case, 3 Dyer, 3/7, a. 
 
 3 See Petersdorff on the Law of Bail in Civil and Criminal Proceedings, Part I. 
 p46. 
 
 4 See the observations of Mr. Justice Heath in llobarts v. Mason, 1 Taunt. 256. 
 
 5 Pratt V. Salt, cited 4 Bac. Abr. 223. 
 
 6 Ramsbottoni v. Harcourt, 4 M. & S. 385. 
 
 7 1 Saund. G? ; Ridge v. Hardcastle, 8T. R. 417- See 2 Leon. 156; Dy. 287, a. 
 Lord Chief Baron Gilbert, in his History of the Common Pleas, p. 209, after
 
 40 LAW TRACTS. NO. I. [cAP. III. 
 
 is amenable to the ordinary process of the different courts, 
 where the suit is instituted on behalf of the King,—delur cUgniori 
 being the rule adopted in the case of a concurrence of titles 
 between the King and his subject.^ The proceedings must be, 
 however, solely at the suit of the King. The exemption will be 
 accordingly recognized in opposition to the royal prerogative where 
 the proceeding is a qui tarn action, it being merely nominally at 
 the suit of the King, and really and substantially at that of the 
 informer. - 
 
 It will be remembered, that in the outset of this section, it was 
 prefaced, that attornies were only entitled to the privileges attached 
 to their situation as officers of the court ; — as practitioners. The 
 lapse of a twelvemonth is, however, indispensable, in order to divest 
 an attorney of his privilege.^ But the mere circumstance of con- 
 tinuing to practise without the concomitant quahfication of having 
 taken out a certificate within a year, is of no avail. 
 
 It was, indeed, urged, in the case of Skirrow v. Tagg,* that the 
 effect of the defendant's neglect to obtain his certificate, was not to 
 suspend his functions, as an attorney, during the interval, but only 
 to make him liable to a penalty. The statute 37 Geo. 3. c. 90. s. 31. 
 was referred to, which enacts, " That every person admitted, sworn, 
 and enrolled, as an attorney, who shall neglect to obtain his certi- 
 ficate thereof, /or the space of one whole year, shall, /row thenceforth, 
 be incapable of practising by virtue of such admission, entry, and 
 enrolment, and the same shall, from thenceforth, be null and void." 
 
 taking notice of the attorney's privilege, says : " But this is to be understood when 
 the plaintiff can have the same remedy against the officer in his own court as in 
 that where he sues him ; for if money be attached in an attorney's hands by 
 foreign attachment in the Sheriff's court in London, he shall not have his privi- 
 lege, because, in this case the plaintiff would be remediless, for the foreign attach- 
 ment is by the particular custom of London, and does not lie at common law ; 
 so that if the attorney should have his privilege, the plaintiff should be without 
 his redress." 
 
 1 Kirkham v. ^Vllaley, Lord Raymond, 27- 
 
 2 2 Rol. Abr. 274 ; 4 Leon. 81 ; Lit. Hep. 97 ; Britten v. Teasedaile, Barnes, 48; 
 Baker v. Duncalfe, 3 Lev. 398 ; Kirkham v. Whaley, 1 Lord Raym. 27 ; 3 Salk. 
 282 ; 12 Mod. 74 ; Comb. 319 ; Lutw. 19G ; Cowp. 367. 
 
 3 R. M. 1654, K. B. and C. P. ; Prior v. lAIoore, 2 U. & S. 605 ; Dyson v. Birch, 
 1 B. & P. 4 ; 2 Wils. 232 ; Ridley v. CaiT, 1 Lil. Pr. Reg. 142 ; Chippendale's case, 
 E. 19 Geo. 3. K. B. Mss. cited, 1 Tidd's Prac. 8th Edit. Tt ; Sand v. Heyshm; 
 H. 24 G. 3. K, B. Mss. cited ibid. ; Christop i;. Coulthard, E. 25 G. 3. K. B. Mss. 
 cited ibid. ; Maynard's case, 2 Wils. 232, n. 
 
 4 5 M. & S. 281.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 41 
 
 But the Court held, that the words of the act, in positive terms, 
 created the incapacity, and prescribed the time: — " From thence- 
 forth" — that is, if he neglect for the space of one whole year. Should 
 it however unavoidably occur, owing to sickness, that an attorney 
 discontinues to practise, for a more protracted period than a twelve- 
 month ; the inference which generally arises from the interval of a 
 year being permitted to transpire previously to an attorney's resum- 
 ing his professional pursuits after a cessation from his usual avoca- 
 tions, may be rebutted by shewing an incapacity to fulfil the duties 
 incident to his situation, arising from infirmity of body, or disease. ^ 
 Endeavours have been made by attornies to exclude themselves from 
 the influence of the rule, which, in such cases, subjects them to com- 
 mon process, where they have either inadvertently or unintentionally 
 discontinued practice for such time, previous to the inception of a 
 plaintiff's proceeding, by subsequently recommencing practice, and 
 taking out a certificate. They have, in all cases, proved unavailable. 
 In the case of Smith v. Bowes,^ it was decided, that the defendant, by 
 becoming an attorney after the commencement of the action, was not 
 entitled to be discharged out of custody. So, where an attorney 
 had lost his privileges by seceding from practice for several years, 
 but had afterwards recommenced business ; it was determined that 
 he could not insist upon the privilege, to the prejudice of a party 
 who had sued out a writ against him before, but had not executed it 
 till after, he had resumed his professional pursuits ;^ reason, jus- 
 tice, and convenience requiring, that the being admitted an attorney, 
 and taking out a certificate, should have no retrospective operation, 
 and that the regular proceedings of the plaintiff should not be 
 vacated by a voluntary act of the defendant. Following a similar 
 line of policy, the Court of King's Bench were of opinion, that an 
 attorney who was in custody for debt, might be detained upon 
 mesne process ; the ground for allowing privilege being, that an 
 attorney was an officer, continually attending upon the court, which 
 the party, in the cause before them, could not, by any supposition 
 however ideal, be contemplated as being.'* 
 
 1 R. M. 1654 ; 2 iM. & S. 605. Formerly, if an attorney of the Common Pleas 
 absented himself from the court for two terms together, except it were occasioned 
 by sickness, or other like urgent cause, to be at the discretion of tlie court, he 
 was liable to be forejudged the court, and to be no longer an attorney thereof; 
 R. T. 24 EUz. s. 9, C. P. - 3 T. R. 662. 
 
 3 Mayor of Norwich v. Berry, 4 Burr. 2110 ; Brooke v. Bryant, 7 T. R. 25. 
 
 4 Byles V. Wilton, 4 B. & A. 88 ; Bands v. Bodinner, Carth. 377 ; and see Wind- 
 mill v. Cutting, 1 Str. 191. 
 
 VOL. II. G
 
 42 LAW TRACTS. NO. I. [CAP. HI. 
 
 It may frequently happen, that causes of Htigation may occur be- 
 twixt attornies themselves, which, of course, immediately gives rise 
 to the question — in what manner are the privileges of the respective 
 parties to be balanced. They may be, for instance, in many cases, 
 entirely irreconcileable, and inconsistent. An attorney of the Court 
 of King's Bench, for example, is entitled to sue by attachment of 
 privilege : he purposes instituting proceedings against a brother 
 officer. The latter is jjrimd facie, privileged to be sued by bill. 
 To adjust these clashing interests, the following distinction has been 
 established: — If both plaintiff and defendant are attornies, and 
 officers of different courts, the common maxim, " there is no pri- 
 vilege against privilege," attaches ; the plaintiff's privilege prevails, 
 and he may sue by attachment of privilege,' although he cannot arrest 
 the defendant,2 his privilege from being holden to bail extending to 
 every tribunal, and not merging, as observed by the court, in the 
 larger privilege of the pkintilF. But where plaintiff and defendant 
 are both attornies of the same court, the defendant is entitled to his 
 privilege of being sued by bill, and not holden to bail.^ 
 
 As a remarkable difierence between the practice of the three 
 common law courts, it nmst be, however, borne in mind, (for after 
 what lias been advanced, the inference would rather be the other 
 way,) that an attorney of the King's Bench, or Common Pleas, may 
 be holden to bail upon a capias of privilege issuing out of the Court 
 of Exchequer.'' This may, at first sight, appear contradictory, and 
 far from being in unison with the general distinction already pointed 
 out. It appears, hoMever, to have been a practice always acted 
 upon, uniformly and uninterruptedly. How it originally obtained, 
 it is not easy to ascertain ; but at this time of day, a knowledge of its 
 origin is by no means necessary to give it authenticity. It is 
 quite enough to discover that it has been recognized for a con- 
 siderable number of years, and has become sanctioned by custom 
 and usage. It may nevertheless be reasonably accounted for, and 
 is not, to make use of a common saying ; " a distinction without a 
 difference." The Court of Exchequer, it is to be remembered, is 
 a very ancient tribunal ; and its officers, whose appointment is pro- 
 bably as ancient as the institution itself, have, as forming part of 
 
 1 2 Brownl. 266 ; 1 Barnard, 182 ; 4 Bac. Abr. 227 ; Shorter v. Packhurst, 
 
 1 Bl. 19 ; Danser v. Berryman, 2 id. 1325 ; Saunder v. Cockayne, Barnes, 34. 
 
 2 Pearson v. Ilenson, 4 D. & R. 73. 
 
 3 Barber v. Palmer, 6 T. R. 524 ; Nichols v. Earle, 8 id. 395 ; RadclifFe v. Besby, 
 
 2 Str. 1141 ; Lvinn v. Aiscough, Barnes, 43. 
 
 < Walker V. Rushbury, 9 Price, 16; Bowyer v. Hoskins, 1 Younge & Jervis, 199.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 43 
 
 the King's revenue, been always in some measure connected with 
 the prerogatives of the Crown. They accordingly derive many 
 peculiar privileges from that connexion, as a body of officers, who, 
 in the course of their duty, are necessai'ily engaged in ministering to 
 the immediate concerns of the public revenue. If, therefore, it be 
 once admitted, that the attornies' clerks in the Court of Exchequer 
 may, by suing out process of privilege, bring their debtors into the 
 Exchequer of Pleas, they are entitled to the privilege with all the 
 incidents which belong to it ; and the effect of the plaintiff's privi- 
 lege must be viewed as reducing the defendant to the ordinary state 
 of a common person. 
 
 It is also worthy of observation, that in the late case of Waine- 
 wright V. Smith, ^ the Lord Chancellor was of opinion, that, by the 
 uniform course of practice, which constituted the law of the court, 
 an attorney, or solicitor, had no privilege against a sworn clerk 
 proceedhig in the Petty Bag Office by attachment of privilege. 
 
 Having detailed the general nature of this immunity, and the 
 instances in which it never originally existed as a privilege, owing to 
 the situation in which the attorney was placed, and in the absence 
 of any positive renunciation of his privileges as an attorney; it 
 now becomes our duty to advert to those acts which the attorney 
 may render himself a party to, so as to annul the rights he would 
 otherwise be authorized to claim, and thereby waive the advantages 
 which, as an officer of the superior courts, he is entitled to appro- 
 priate to himself. This may be occasioned by various acts, and 
 may take place by inadvertence in cases where the attorney is either 
 plaintiff or defendant — when plaintiff, by suing, as a common per- 
 son2 — when defendant, by not asserting his privilege in due time, or 
 in a proper manner. Where therefore it appeared that an attorney 
 took out his certificate on the 25th of November ; that he was 
 arrested in the early part of January ; that he afterwards put in 
 bail, but did not apply to the Court until the 3d of February, to 
 avail himself of his exemption from bailable process ; and it was 
 urcred before the Court, that the application was too late, as the de- 
 fendant had put in bail above, which was a waiver of the irregularity; 
 the judges deemed the concurrent circumstances of bail above having 
 been put in, and the interval of a month suffered to elapse since the 
 arrest, sufficient reasons to induce them to refrain from inter- 
 ferino- with the attorney's situation.^ So it seems that an attorney 
 becomes divested of his privilege by entering into a bail-bond, on 
 
 1 5 Law Journal, Cli.'p. 20. 2 2 Str. 837 ; i Bernard, 818. 
 
 3 Bernard v. Winnington, 1 Chit. Rep. 188.
 
 44 LAW TRACTS. NO. I. [CAP. III. 
 
 process issuing out of a different court; on the ground that he must 
 be sued in the court out of which the process issued.^ But wliere 
 an attorney of the Common Pleas puts in bail to an action depend- 
 ing in the Court of King's Bench, he does not thereby lose his pri- 
 vilege, but is entitled to plead it in that suit, or even in any other action 
 instituted against him by the bye ; for it would be absurd, that he 
 ■who founds his action on that of another, should be in a better con- 
 dition than the original plaintiff.^ Yet where an attorney, after 
 having put in bail, waives his privilege, by pleading in chlej'm one 
 action, it has been construed as being a waiver of privilege in all 
 other actions brought against him by the bye, during the same term.^ 
 
 b. As to an Ailorneys Exemption from the Jurisdiction of inferior 
 Courts. — Attornies, when plaintiffs, are not within the statutes 
 relating to courts of conscience,'* provided they sue in their capacity 
 of attornies, that is by attachment of privilege.'' In some instances, 
 attornies, as defendants, are subject to the jurisdiction of courts of 
 request, by the express provision of the statutes regulating such 
 courts; as in Westminster;" London ;7 and the Tower Hamlets;^ 
 when they reside within such jurisdictions respectively. For debts, 
 therefore, within the cognizance of these courts, attornies residing 
 within their jurisdiction, must be sued there, and not in the tri- 
 bunals of which they are officers. But in all cases where attornies 
 are not expressly designated in such statutes, proceedings must be 
 commenced against them in the courts to which they belong. This 
 may be exemplified by a reference to the terms of the act, which is 
 the foundation of the county court of Middlesex.^ 
 
 c. As to an Altornefs Exemption from serving Offices. — Another 
 of the privileges to which attornies are entitled, ranks under this 
 subdivision. From the supposed necessity of their attendance in 
 court, they are exempted from serving all offices where personal 
 service is required, even although imposed by acts of parliament, 
 and in the most comprehensive terms.'** They are therefore ineli- 
 
 1 Barnes, 117 ; see 3 Wils. 348 ; 2 Bl. Rep. 838 ; 1 H. Bl. 631. 
 
 2 27 H. 6, a; 31 H. 6. 10; Carth. 377; 1 Salk. 1, 2; 1 Lord Raym. 135; 
 12 iAIod. 102; 1 Str. 191. 3 ibid. 
 
 4 Board v. Parker, 7 East, 47 ; Hiissey v. Jordan, 1 Doug. 382, n. ; Dyer, 287, a ; 
 Roluison V. Bray, 2 B. & B. 698; s. c. 3 Moore, 622; Hodding v. Warrand, 
 7 East, 50. 6 1 B. & P. 629 ; Parker v. Vaughan, 2 id. 29. 
 
 6 24 Geo. 2. c. 42. s. 1. 
 
 7 39 and 40 Geo. 3. c. 114. s. 10; Silk v. Bennett, 3 Burr. 1583. 
 
 8 19 Geo. 3. c. 68. s. 24. 
 
 '•• Gardner v. Jessop, 2 Wils. 42 ; Wiltshire v. Lloyd, 1 Doug. 380. 
 >o 2BI. 1126.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 45 
 
 gible as constables;^ ty thing-men ;^ and officers under tlie commis- 
 sioners of sewers f persons to do watch and ward ;"* or to serve in the 
 trained bands of the city of London;* overseers of the poor;'' or 
 churchwardens.'' For the same reasons they cannot be called upon 
 to fill any corporate office, such as that of sheriff; even although the 
 attorney were a corporator, and resident for some time previous to 
 and after he was admitted an attorney.^ Where, however, the 
 offices, or situations to which they may be elected, can be discharged 
 by deputy, and do not require the personal attention of the prin- 
 cipals themselves, in such cases they cannot refuse to vmdertake the 
 trouble and responsibility of such avocations, for, cessante ratione, 
 cessat et ipsa lex. Although, therefore, they were at one time 
 privileged from being ballotted in the militia,9 the exemption was 
 afterwards disallowed,'*^ upon the passing of those acts of parliament, 
 
 1 Prouse's case, Cro. Car. 3S9 ; Stone's case, 1 Vent. 16. 29 ; s. c. 2 Keb. 477- 
 508 ; s. c. 1 Lev. 2fi5 ; Hurst's case, T. Raym. 94. 
 
 2 Cro. Car. 389 ; Noy. 112; OiF. Brev. 1(50. 3 And. 355. 
 
 4 Off. Brev. 175 ; 1 Com. Dig. 634 ; scd vide 2 Roll. 272. 1. 25. 
 
 5 Ex parte Heaton, Barnes, 42. 
 
 6 Off. Brev. 162 ; 8 T. R. 379, n. 7 2 Roll. 272. 1. 15. 
 
 8 The Mayor of Norwich v. Berry, 4 Burr. 2109 ; 1 Bl. 636 ; and see Ex parte 
 Richmond, Barnes, 37, where, on a writ of privilege by an attorney to be excused 
 from serving a corporate office, the Court held that the propriety of the writ could 
 not be impugned by affidavit. The following acts of parliament must also not be 
 passed over: — The statute 1 H. 5. c. 4. enacts, that "no under-sheriff, sheriff's 
 clerk, receiver or sheriff's bailiff, shall be attorney in the King's court during 
 the time he is in office." And by the 22 Geo. 2. c. 46. s. 14, it is provided, that 
 " no clerk of the peace, or his deputy, nor any under-sheriff, or his deputy, shall 
 act as solicitor, attorney, or agent, or sue out any process at any general or 
 quarter sessions of the peace to be held for any place where he shall execute his 
 office, upon pain of forfeiting 50/." And it is also enacted by the 5 Geo. 2. c. 18. 
 B. 2. that "no attorney, or solicitor, shall be capable to continue or be a justice 
 of the peace in England or Wales, during such time as he shall continue in the 
 business or practice of an attorney, or solicitor." The 38 Geo. 3. c. 5. s. 92. 
 provides, that " no attorney, or solicitor, or person practising as such, who shall 
 not be seised of lands, &c. freehold, copyhold, or leasehold, over and above all 
 incumbrances and reservations payable out of such leasehold estates, of the value 
 of 100/. per annum of his own estate, in the same county, city, &c. for which he 
 is named a commissioner, or within the county at large, within which such city, 
 &c. doth stand, or which is next adjoining thereto, and which were taxed under 
 37 Geo. 2. c. 2, or any receiver-general, or collector of any aid granted to his 
 Majesty, shall be capable of acting as a commissioner in England, Wales, or Ber- 
 wick, under this act." 
 
 9 Evingdon's case, 2 Str. 1143, Barnes, 42 ; Andr. 355, 
 
 10 Gerard's case, 2 Bl. 1123.
 
 46 LAW TRACTS. NO. I. [cAP. III. 
 
 whicli Averc promulgated in the reign of his late Majesty, and 
 which allowed personal service in the militia to be comnmted for 
 a certain sum of money, to be devoted to the procurement of a 
 substitute. 
 
 d. As to an Attorneijs Privilege as a Witness. — An attorney can- 
 not divulge any matters which have been communicated to him in 
 professional confidence. This privilege is founded on very ob- 
 vious principles of convenience and policy. It is absolutely essen- 
 tial to the ends of justice that the fullest confidence should prevail 
 between a litigant and those who conduct his cause ; and it is equally 
 clear, that there would be an end of all such confidence, if the agent 
 could be compelled to divulge all he knew.' The privilege is 
 given for the benefit of the client, not of the attorney. It there- 
 fore never ceases ; the mouth of the witness is for ever Sealed ; he 
 cannot reveal confidential communications at any time," or in any 
 proceeding, although the client be no party to it; however improbable 
 it may be, under the circumstances, that any injury could result to 
 him from the disclosure ;^ and, although the relation of attorney 
 and client has ceased by the dismissal of the attorney.^ And the pre- 
 vention still exists, even after the attorney has been struck off the 
 
 roll.-' 
 
 The following instance, which occurred before Mr. Justice Holroyd, 
 and is extracted from the last edition of Mr. Phillips's valuable work 
 on Evidence, vol. i. p. 13f2," shews how strictly the obligation of secresy 
 
 1 Bui. N. P. 284 ; Rayner, Read, 111 ; 9 St. Tr. 387 ; 12 Vin. Abr. B. a. pi. 1 ; 
 Annesleyy. Earl of Anglesea, Str. 142; Cuts v. Pickering, 1 Ventr. 197; Lord 
 Say and Sale's case, 10 Mod. 40 ; and see some observations on this subject in 
 Burnet's Treatise on the Criminal Law of Scotland, 435. It may be here re- 
 marked, that a similar rule applies to communications professionally made to 
 counsel ; and that the granting of the immunity has been found so salutary, that 
 lur. Justice BuUer, in the case of Wilson v. Rastall, 4 T. R. 759, lamented, that 
 there were many instances to which this law of privilege did not apply. Physi- 
 cians, surgeons, and divines, it is well known, cannot withhold from the infor- 
 mation of the jury any communication which is important as evidence, however 
 secret and confidential the nature of that communication may have been. See 
 Rex V. Sparkes, cited in Du Barre v. Livette, Peake N. P. C. 77 ; Vaillant v. Do- 
 dermead, 2 Atk. 524; Rex v. the Duchess of Kingston, 20 How. St. Tr. 612; 
 Bac. Abr. Evidence, A. 2 ; Butler v. Moore, Macnall, 253. 
 
 '^ Slowman v. Heme, 2 Esp. 695; Gainsford v. Grammar, 2 Campb. 10; Pack- 
 hurst V. Lowten, 2 Swanst. 194. 
 
 3 Wilson V. Rastall, 4 T. R. 759, per Buller, J. 
 
 4 Rex V. Withers, 2 Campb. 1 78. 
 
 5 Earl of Cholmondley v. Lord Clinton, 19 Ves. 261. 
 
 '^ Rexu. Smith, Derby Sum. Ass. 1822 ; and see Rex v. Dixon, 3 Burr. 1687.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 47 
 
 is enforced, between attorney and client, even in a case where the 
 interests of criminal justice were concerned. In a prosecution for the 
 forgery of a promissory note, an attorney who had the note in his 
 possession, refused to produce it before the clerk of arraigns, who 
 required it for the purpose of setting it out in the indictment ; upon 
 which he was summoned to appear before the judge, and shew cause 
 why he should not produce the note. He accordingly attended, to- 
 gether with counsel for the prosecution, and counsel for the prisoner. 
 Mr. Justice Holroyd inquired minutely into the circumstances by 
 which he had the note in his possession, when it appeared, on the 
 statement of the attorney, that he had been consulted by the pri- 
 soner on the note in question, and that by his direction he had com- 
 menced an action to recover the amount of the note, against the per- 
 son in whose name it was now supposed to be a forgery ; that, a 
 short time afterwards, he had been summoned before a magistrate, 
 when the prisoner was apprehended on a charge of forgery, and he 
 was then desired to produce the note. Upon this, he inquired of the 
 prisoner, who was present, whether he would consent to its being 
 produced : the prisoner consented, asserting his innocence, and the 
 note was accordingly produced. The magistrate, after taking the 
 depositions of witnesses, remarked, that he thought it would be pro- 
 per to deposit the note in the hands of the high constable ; on which 
 the attorney said, that, as the note had come into his hands profes- 
 sionally from his client, he expected to have it restored to him, at 
 the same time asking the prisoner, whether he would consent to its 
 being deposited with the high constable, and the prisoner replied, 
 he wished it to be placed in the hands of his attorney. The ma- 
 gistrate returned the note to the attorney, observing, that he would 
 doubtless have notice to produce it at the trial. The attorney (who 
 was not, however, employed professionally for the prisoner in the 
 ensuing trial), had been subpoenaed to produce the note, which 
 was still in his possession ; but, before he was subpoenaed, a de- 
 mand of the note had been made upon him by the attorney em- 
 ployed in the -prisoner's defence : on these facts, the question was 
 argued by the counsel for the prosecution and the counsel for the 
 prisoner, and Mr. Justice Holroyd said, he would consider the 
 point. On the following day, the subject was again mentioned, 
 when Mr. Justice Holroyd refused to make an order upon the 
 attorney to produce the note, or to give a copy of it, to the 
 clerk of arraigns. A bill, charging the prisoner with forgery, was 
 prepared, and found by the grand jury. At the trial, the same 
 attorney was called, on the part of the prosecution, for the pur-
 
 -18 LAW TRACTS. NO. I. [CAP. III. 
 
 pose of producincr the note, and, on his re-stating the facts above 
 detailed, the learned Judge declared his ojjinion, that he ought 
 not to produce it. Secondary evidence of its contents was not 
 offered : the prosecution consequently failed, and the prisoner was 
 acquitted. 
 
 This privilege of the client, it is submitted, extends also to all 
 such communications as are made by him to his attorney, in his pro- 
 fessional character, and with reference to professional business, and 
 is not confined, as has been decided by Lord Tenterden (then C. J. 
 Abbott,) to such facts as are disclosed for the purpose of bringing 
 or defending an action. That learned Judge, in the case of Williams 
 V. Mudie,^ made use of the following remarks : " Whatever is com- 
 municated for the purpose of bringing or defending an action 
 is privileged, but not otherwise : this was held in a case on the 
 INIidland Circuit, in the time of Serjeant Adair." The counsel 
 for the defendant, Mr. Scarlett, urged with considerable vehe- 
 mence the impolicy of such a doctrine ; but his Lordship added, 
 " I have considered the subject a great deal, and my mind is 
 made up upon it." It may therefore appear hazardous to venture 
 to question the validity of a decision, emanating from so high an au- 
 thority. Still it appears to. the writer, that the propriety of narrowing 
 the law of privilege, as it has heretofore existed, is very question- 
 able. If disclosures of the matters under consideration are founded 
 on a solid basis — what possible difference is there, between commu- 
 nications with reference to a buit, and such confidential remarks as 
 are made by clients to their legal advisers regarding any business 
 which is the subject of their deliberation, and is immediately con- 
 nected with the attorney's professional capacity. The case of 
 Cromack v. Heathcote may be referred to as confirmatory of 
 what has been just advanced. That case is reported in 2 Brod. & 
 Bing. p. 4, and 4 Moore, p. 357. The facts were these : an attor- 
 ney being requested to draw an assignment of goods, refused, and the 
 deed was drawn by another : its validity was afterwards questioned, 
 on the ground of fraud ; and the attorney first applied to, was called 
 as a witness, to establish its illegality. His evidence was rejected. 
 The case was brought before the Judges^ in banco, and it was then 
 urged, that the exclusion of the evidence of solicitors, touching mat- 
 ters on which they had been consulted, extended only to communi- 
 
 1 1 Carr. & Payne, 158 ; s. c. 1 R. & M. 71 ; and see 2 Swanst. VJi), n. ; Wads- 
 worth V. Hamshaw, Mann. Index, 374. 
 
 2 Dallas, C. J., Burrough, J., and Richardson, J,
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 49 
 
 cations made in tlie progress of a cause. Several autliorities were 
 adverted to, and, amongst others, the very decision that took place 
 before Serjt. Adair, and which was noticed by Lord Tenterden, in 
 the case of Williams v. MtnUe, which drew from the Chief Justice 
 the following spirited observations : " One is staggered at first on 
 being told, that there are decided cases, which seem at variance with 
 first principles the most clearly established. But the cases cited do 
 not at all bear out the proposition contended for; and I know of no 
 such distinction, as that arising, from the attorney being employed, or 
 not employed in the cavise." And Mr. Justice Richardson assumed 
 the hypothesis of an attorney being consulted on the title to an estate, 
 where there was a defect in the title, and said, that it was impossible to 
 contend, that in such a case, he would be entitled to divulge the flaw. 
 
 It must not, however, be inferred from what has been stated, that 
 observations are privileged, which are casually made by an indi- 
 vidual to a professional character. The operation of the rule is 
 strictly limited to communications made in the course of professional 
 business, pending the relation of attorney and client. It is not, con- 
 sequently, applicable to any communications, although made to an 
 attorney, if he was not employed as such, but only as a mere agent 
 at the time ;i nor to any which were made before he was addressed in 
 his professional character ;' or where he has made himself a party to 
 the transaction ;^ nor to a gratuitous communication made to an at- 
 torney after the termination of the suit ;'' nor in general to any com- 
 munication, although made to an attorney, which is not made in 
 professional confidence,^ and necessarily within his professional 
 duty 5*^ nor to any questions which are put to him, as to a collateral 
 fact within his own knowledge, or to a fact which he might have 
 known independently of the means afforded him as a legal repre- 
 sentative. Thus an attorney is compellable to identify the person 
 of his client ;7 to prove that his client swore to and signed an answer 
 
 1 Wilson V. Rastall, 4 T. R. 753. 
 
 2 Cuts V. Pickering, 1 Vent. 197 ; Vaillaint v. Dodemead, 2 Atk. 524. 
 
 3 DufBn V. Smith, Peake, N.P.C. 108 ; Robson v. Kemp, 5 Esp. 52 ; Doe dem. 
 Jupp V. Andrews, Cowp. 845. '^ Cobden v. Kendrick, 4 T. R. 431. 
 
 5 Annesley v. the Earl of Anglesea, 8 St. Tr. 380. See Cuts v. Pickering, I 
 Vent. 197 ; Oneby's case, 1 2 Vin. Abr. B. a. pi. 2, March, 83 ; Board v. Ackerraan, 
 5 Esp. 118 ; Studdyu. Sanders, 2 D. & R. 347. 
 
 6 1 Peck. 209, where an attorney, emjiloyed on an election for a member of par- 
 liament, was compelled to disclose having gone to the candidate's bankers for some 
 tickets to be distributed to the voters during the election. Bramwell v, Lucas, 2 
 B. & C. 745 ; s. c. 4 D. & R. 367 ; s. c. 2 Law Journ. K.B. 161. 
 
 7 Rex V. Watkinson, 2 Str. 1122 ; Bull. N.P. 234 ; Bowles v. Stewart, 1 Soli. & 
 Lef. 22(3. 
 
 VOL. II. n
 
 50 LAW TRACTS. NO. I. [cAP. III. 
 
 in Chancery, upon wliich he is indicted for perjury;' or- to esta- 
 bHsh the execution of an instrument by his client, to Mhicli lie is 
 an attesting witness.- On the same principle, in an action of debt 
 upon a bond, the attorney was allowed to prove that the consider- 
 ation of the bond was usiu-Lous.^ So, where a question arose connected 
 with an erasure in a deed or will, the attorney was interrogated as to 
 whether he had ever seen the instrument in any other state, such cir- 
 cumstance being a fact which had no relation whatever to any profes- 
 sional conmiunication by his client. 4 And, for the same reason, 
 viz. that no professional secresy is violated, an attorney may be ex- 
 amined as to the contents of a written notice to produce papers. 
 
 A person who acts as interpreter,'' or as agent*' between the attor- 
 ney and his client, or an attorney's clerk, ^ cannot be called upon 
 to reveal a confidential communication. They stand precisely in the 
 same situation as the attorney himself; they are considered as the 
 organs of the attorney, and are under the same conditions of secrecy. 
 But a person who is not an attorney may be compelled to disclose com- 
 mimications which have been made to him under the mistaken idea, 
 that he was a professional character:'^ and propositions, which the at- 
 torney of one individual has been professionally intrusted to make to 
 the adverse party, though they are not to be disclosed by the attorney 
 himself, may yet be proved by another witness, who heard him deliver 
 them.'-* 
 
 This privilege, it has been already seen,'** was originally given effect 
 to, more for the benefit of the client than of the witness. The Courts 
 will, therefore, interfere to protect the client, although the witness 
 be willing to betray his trust;" and a court of equity has ordered 
 such matters to be expunged.'^ So with a similar regard to the 
 interests of the client, where a deed was obtained out of the attor- 
 ney's hands, for the purpose of being produced in evidence by an- 
 
 I Bull. N.P.284. Per Lord Mansfield, Cowp. 845. 2 Doedem. Jupp v. Andrews, 
 Cowp. 816. «* Diiffin v. Smith, Peake, 108. See Turner v. Railton, 2 Esp. 574. 
 
 "* Bull. N.P. 284 ; 1 Vent,. 197. 
 
 ^ Du Barre v. Livette, Peake, 78. ^ Parkins v. Hawksliaw, 2 Stark. 239. 
 
 7 Taylor V. Forster, 2 Carr. & P. 195. See Foote v. Hayne, 1 II. & M. 165 ; and 
 Brichens r. Thorp, 1 Jac.300, where, however, the court refused to restrain a clerk 
 to a solicitor, commencing practice for himself, from acting as solicitor for parties 
 against whom his master was employed, upon general allegations of his having, in 
 his former service, acquired information likely to be prejudicial to the clients of 
 his master. ^ Foimtain u. Young, 6 Esp. 113. 
 
 y Wilson f. Rastall, 4 T. R. 753; Gainsford t\ Grammar, 2 Camjjb. 10. 
 
 '" Ante, p. 46. 
 
 II Petrie's case, cited in Wilson v. Rastall, 4 T. R. 759 ; Beer v. Ward, 1 Jac. 77 ; 
 Rexv. Withers, 2 Campb. 178. '^ Sandford v. Kensington, 2 Ves. jun. 189.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 51 
 
 other witness, it was not permitted to be received ;' and, after ver- 
 dict, the attorney has been held not bound to acquaint the sohcitor 
 on the opposite side, with his client's abode.' 
 
 The client may, hoAvever, refuse to avail himself of this immunity.-'' 
 And if an attorney be called as a witness by his client, he is not pro- 
 tected from cross-examination, as to the point upon which he has been 
 examined in chief, although it was matter of confidential communi- 
 cation. But such cross-examination must be confined to the same 
 matter, and must not be extended to other points in the cause."* 
 
 Should it so happen that the attorney is in such instances served with 
 a subpoena duces tecurn^ he ought in all cases to attend ; and though 
 it will be a question for the consideration of the Judge at the trial, 
 whether, in any particular case, the actual production of writings 
 would be enforced, yet the witness ought always to have them ready 
 to be produced, if required, in obedience to the judicial mandate f and, 
 in case of disobedience without sufficient cause, will be liable to an 
 attachment, or to a special action for damages.'' Under this v»rit it 
 has been decided, that the solicitor to a commission of bankrupt is 
 bound to produce the proceedings under the commission,^ unless the 
 production be prejudicial to the assignees.^ But an attorney has been 
 held not bound to produce a composition deed, in which his client 
 is interested, and the production of which he conceives may be pre- 
 judicial to his employer in a suit between other parties.'^ 
 
 The power of attornies to make admissions for their clients may be 
 here explained. The general rule is — that admissions made by the 
 attorney on the record, with a view to the trial of the action, as of 
 the execution of a deed or agreement, are evidence against his chent : 
 but mere admissions in conversation are not admissible, not being 
 warranted by a presumption, that they were authorized by the 
 
 1 Fisher i;. Fleming, Leic. Lent Ass. 1809, Mss. ; 1 Phill. on Evirlence, 132, 6th 
 edit. See Copeland v. Wattss, 1 Stark. 95. 2 Hooper v. Harcourt, 1 H. Bl. 534. 
 
 ^5 Fhillips on Evid. vol. 1, p. V6'l, (3th edit.; 2 Starkie's Evid. 399; Roscoe on 
 Evid. 73. 4 Vaillant v. Dodemead, 2 Atk. 524. 
 
 5 An attorney, a witness to a deed, and in possession of the same, cannot be 
 compelled to attend at the hearing of the cause otherwise than by a subpana duces 
 tecum : Busk v. Lewis, 6 JVIad. 29. 
 
 6 Calliand v. Vaughan, 1 B. & P. 212. See Ex parte Hodgson, in re Temple, 2 
 Glyn & Jamieson, p. 21. 7 Ameyr. Long, 9 East, 473. 
 
 8 Pearson v. Fletcher, 5 Esp. 91 ; Corson v. Dubois, Holt, N.P.C. 239 ; Cohen 
 V. Templar, 2 Stark. 260 ; Hawkins v. Howard, 1 R. & M. 64 ; s. c. 1 Carr. & P. 
 222. Sedvide Bateson v. Hartsink, 4 Esp. 43 ; Laingu. Barclay, 3 Stark. 42- 
 
 9 Corson V. Dubois, Holt, N.P.C. 240, per Gibbs, C. J. 
 
 10 Harris v. Hill, 3 Stark. 140.
 
 52 LAW TRACTS. NO. I. [CAP. III. 
 
 client.! And propositions, made by an attorney on the part of his 
 employer, (whether before or after the commencement of a suit,) re- 
 specting a demand which another person had against him, may be used 
 as evidence against the client.'- These propositions, though they can- 
 not be proved by the attorney, from a regard to the privilege of the 
 client, yet, if established by another witness, are received as the ad- 
 mission of an accredited agent ; and proof, that they were made by the 
 attorney on the record, will be suflicient to establish his agency."' 
 
 e. As to an Allorneys Exemption from serving on Juries or In- 
 quests. — By the second section of the last Jury Act,"* all attornies and 
 solicitors who have been duly admitted into any court of law or equity, 
 or of ecclesiastical or admiralty jurisdiction, in which attornies, solici- 
 tors, and proctors have usually been admitted, are absolutely exempted 
 from being returned, and from serving upon any juries or inquests what- 
 soever. They must, however, at the period of the jury hsts being made 
 out, be in actual practice, and have taken out their annual certificates.^ 
 
 f. How enforced. — To point out the mode in which attornies can 
 avail themselves of the various privileges, the nature of which has 
 been just discussed, is now' the only remaining subject of this sec- 
 tion. Upon an attorney's being improperly sued, the course for him 
 to adopt is to plead his privilege. Should the informality or error 
 in the proceedings adopted consist in the action being instituted in 
 a court different from that to the jurisdiction of which tribunal, it has 
 been seen,'' an attorney is peculiarly amenable, such pica may be con- 
 sidered as a plea to the jurisdiction ; but where the action has been 
 commenced in the proper court by incorrect process, as by latitat 
 or original writ in the King's Bench, the plea in that case operates 
 as an abatement of the writ. In either instance, it is evident that 
 the plaintiff's proceedings will be rendered of no avail, and the at- 
 torney's privilege upheld. The mode of constructing such plead- 
 ings will be shewn when examining the remedies that may be had 
 recourse to against attornies, and the grounds of defpnfPi that may be 
 made available in answer to any actions brought against them.'' 
 
 In case an incroachment upon the inmiunities of attornies of still 
 greater magnitude be attempted, by their being deprived of their liberty, 
 and taken into custody, it then becomes material to exercise the mode of 
 asserting the privilege from arrest with as much expedition as possible. 
 
 1 Young V. Wright, 1 Campb. 141 ; Goldie v. Shuttleworth, id. 70; Milward 
 V. Temple, id. 375. - Gainsford v. Grammar, 2 Campb. 9. 
 
 3 Ibid, et vide Marshall v. Cliff", 4 id. 133. 
 * 6 Geo. 4. c. 50. * Ibid. « Ante, p. 42. 7 Post, ch. viii.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 53 
 
 It has been accordingly held, that where an attorney entitled to 
 the privilege has been arrestCG.!, whether he be an attorney of the 
 court from whence the process issued or not, he has a right to be im- 
 mediately di-scharged upon motion, upon filing common bail, or en- 
 tering a common appearance.' The practice formerly indeed ap- 
 pears to have been, to order an attorney, sued by process issuing 
 out of a different court from that in which he had been admitted, 
 to put in bail, to sue out his writ of privilege, and plead it in abate- 
 ment.^ This dilatory course of proceeding is now however univer- 
 sally discountenanced: for, in a late case,^ the Court of King's Bench 
 stayed the proceedings in an action brought against an attorney of 
 the Court of Common Pleas, who gave notice of his privilege, but 
 neglected to plead it. And where an attorney of the Court of Com- 
 mon Pleas had. been arrested on an attachment of privilege, at the 
 suit of an attorney of the Court of King's Bench, the former court or- 
 dered the bail-bond to be delivered up to be cancelled, on his entering 
 a common appearance.'* It is worthy of observation, that in the case 
 of Gwynne v. Toldervy, the plaintiff had actually signed judgment 
 for want of a plea. But, from a subsequent decision, it may be col- 
 lected, that the apphcation, on behalf of an attorney, to be discharged 
 out of custody, should be made at an early stage of the proceedings, 
 and before putting in bail above.^ 
 
 The application for a rule to shew cause why the defendant, a 
 practising attorney, and as such, privileged from arrest, should not 
 be discharged out of custody, or why the bail-bond should not be 
 delivered up to be cancelled, and why proceedings should not be 
 stayed, must, in general, be supported by an affidavit, stating that 
 the defendant is an attorney of the court ; that he has practised 
 within a year previous to the arrest ; and that he has taken out a 
 certificate vt^ithin that period.^ 
 
 1 Redman's case, 1 Mod. 10 ; s. e. 2 Keb. 55 ; Brown's case, 2 Salk. 544 ; 1 Wils. 
 299 i Nichols X.. EarlG, 8 T. R. 395 ; Wheeler's case, 1 Wils. 298 ; Gwynne v. Tol- 
 dervy ; and Beck u. Lewin, cited in Tidd, 219; Pearson v. Ilenson, 2 LawJourn. 
 K.B. 91; s. c. 4D. & R. 73. 
 
 2 Snee v. Humphreys, 1 Wils. 306 ; The Mayor of Basingstoke v. Bonner, 2 Str. 
 864 ; s. c. 2 Lord Raymond, 1567 ; s. c. Barnard, .300. 
 
 3 Gwynne v. Toldervy, 1816, cited in 1 Tidd, 219, 7th edit. Sed vide 2 Bl, 
 1088 ; Unwyn v. Robinson, Barnes, 5.3 ; Carth. 377 ; Jones v. Bodeenor, 1 Lord 
 Raymond, 135 ; s. c. 1 Salk. 1 ; s. c. 5 Mod. 310. 
 
 4 Beck V. Lewin, cited in Tidd, 76, 8th edit. 
 8 Bernard v. Winnington, 1 Chit. Rep. 188. 
 
 6 Dyson i;. Birch, 1 B. & P. 4; Bernard r. Winnington, 1 Chit. Rep. 188; 
 Brooke v. Bryant, 7 T. R. 25 ; Petersdorff on Bail, Part i. p. 71.
 
 54 I AW TRACTS. NO. I. [CAP. III. 
 
 Although the sheriff may be apprized of the defendant's being an 
 attorney, and of his consequent exemption from arrest, he is not 
 obhged to discharge him even upon production of his writ of privi- 
 lege ; and this rule obtains, whether the process upon which he was 
 holden to bail issue from the court in which he was admitted, or a 
 different superior court. ^ But where the arrest is made under pro- 
 cess issuing out of an inferior jurisdiction, the writ of privilege should 
 be allowed hisfanfer.' 
 
 As the defendant would not be entitled to costs, if he pursued 
 the ordinary mode of taking advantage of the irregularity, by 
 pleading his privilege in abatement, it is the uniform and inflexible 
 practice of all the courts, where an attorney moves to be discharged 
 on filing common bail, or entering a common appearance, to stay the 
 proceedings without costs.^ 
 
 We now arrive at a consideration of the mode in which an attor- 
 ney's exemption from serving offices, from being called as a witness 
 to divulge the secrets of his client, or from serving upon a jury, can 
 be rendered effectual. In the first of these cases, whether called 
 upon to take upon himself the office of constable, or to fill and 
 execute the duties of any other similar situation requiring personal 
 attention, he must, after assigning his reason for refusing to under- 
 take the responsibility of the situation to which he may have been 
 nominated, remain quiescent ; and if any further steps are taken, the 
 attorney will be thus enabled to establish, before the tribunal in the 
 
 1 Crossley v. Shaw, 2 Bl. Rep. 1085; Jones v. Bodeenor, 1 Salk. 1 ; s. c. 5 Mod. 
 310; and see Read t-. Jones, 1 Lutw. 166; 1 Str. 76; Doug. 314; Lord Con- 
 ningsby v. Steed, 8 I\Iod. 192; 4 Taunt. 631 ; Long's case. 2 Mod. 181. 
 
 2 Rawlings v. Parry, Ca. Pr. C. P. 2; Crossley v. Shaw, 2 Bh Rep. 1085; 
 Scawen v. Garrett, 2 Salk. 545. 
 
 When a writ of privilege is necessary, before signing, obtain a certificate at 
 the Master's office in the K.B., or at the Clerk of the Warrants in the C.P., that 
 defendant is an attorney. Pay nothing for signing, 7c?. for sealing, to be lodged 
 
 with the Clerk of the Papers, or Secumlui y uf the inferior cuurt, and he -will allow 
 
 it, and grant a supersedeas. Serve the supersedeas upon the officer who has arrested 
 the defendant, and he must instantly discharge him. 
 
 Or, if the defendant merely apprehend that bailable process will issue against 
 him from an inferior court, he may sue out his writ of privilege, and have it 
 allowed, as above directed, which will stay the issuing of any process against him 
 from that court, and, for the defendant's greater security, he may obtain a certifi- 
 cate of the allowance from the officer of the inferior court, which will protect liim 
 from arrest, should process happen to issue against him. Lee's Diet, of Prac. vol. 
 i. p. 146, 2nd. edit. ; 1 Archb. Prac. K.B. 48, 2nd. edit. 
 
 3 Thompson v. Rush, Barnes, 44 ; Unwyn v. Robinson, id. 53 ; Barber v. Pal- 
 mer, 6 T. R. 524.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 55 
 
 presence of which tlie proceedings may be instituted, the cause of 
 his exemption in a legal and methodical manner. In the two last of 
 these instances, viz. if served with a subpoena, or called upon to enter 
 a jury-box, it w-ill be incumbent upon him to attend, and to inform 
 the judge of his being an officer of the court, wdio will immediately 
 permit his discharge. 
 
 2ndly. As to /lis Big/its. \. Individually, a. To conduct proceed- 
 ings before magistrates. — During the pendency of an investigation 
 before a justice of the peace, it has been decided that an attorney has 
 no right to comment upon the evidence offered. In fact, he has no right 
 to be present at svich inquiry, although it may often be permitted as a 
 matter of courtesy. His assistance is sometimes desired ; and if his 
 advice and opinion be asked, it is proper for him to give them ; but 
 he is not, in other respects, entitled to offer remarks on what passes 
 before the magistrate.' In the case o^ Rex v. Coleridge i- it was ac- 
 cordingly held, that an attorney had no legal right to attend a party 
 accused of felony, before a justice of the peace; but that it must rest 
 entirely in the discretion of the magistrate to admit or exclude him. 
 
 So far the policy of the rule may be justifiable. When a 
 magistrate is acting ministerially, and is examining a party on a 
 criminal charge, it may be essential, for the purposes of public 
 justice, that the examination should be private. But where a ma- 
 gistrate acts judicially, and is about to hear an information and 
 proceed to conviction, many cases may occur in which the practice 
 of excluding an attorney would be unreasonable. It is therefore to 
 be much lamented, that a judge, of the highest authority,^ should 
 have even, by an obiter dictum, given currency to an idea which is 
 much too prevalent, and countenanced even by books of authority,'* 
 that magistrates are invested with the power of excluding, in all 
 cases, what persons they please, from their presence, in the course 
 of their summary proceedings. That learned judge made use of the 
 following remark, on an application for a criminal information against 
 justices, for improperly excluding the attorney of a defendant charged 
 with an offence against the game-laws, from the justice-room during 
 the hearing of the information :— " An attorney has no right to inter- 
 fere with the duties of the magistrate in his own justice-room." ^ 
 
 1 Rex V. Borron, 3 B. & A. 432. ^ 1 B. & C. 37 ; s. c. 2 D. cSc K. 86. 
 
 3 Mr. Justice Bayley. 
 
 4 See the last edition of Burn's Justice, by Chctwjmd, vol. 3. tit. Justice of 
 the Peace, p. 157. 
 
 5 Rex V. the Justices of Staffordshire, 1 Chit. Kep. 217.
 
 56 LAW TRACTS. NO I. [CAP. Ill 
 
 When, however, it is rememberecl that the case was not decided on 
 solemn deliberation, it is surprising that the point should have been 
 ever viewed as settled. Indeed, so little are these observations of Mr. 
 Justice Bayley to be looked upon as determinate, that when the deci- 
 sion of The Kingy. the Justices of Staffordshire was cited in the argu- 
 ment in The Kingy. Coleridge, as an authority, to shew that, in pro- 
 ceedings under penal statutes, an attorney has no right to be present in 
 the justice's room, his Lordship immediately interposed, and said : 
 " That case is not to be considered as the solemn decision of the court. 
 The opinion there expressed upon this point was merely the obiter 
 dictum of a single judge, to which I pay no respect." And the Lord 
 Chief Justice added, with reference to the same point : "An observa- 
 tion thro^tn out by a judge, merely in the course of argument, is not to 
 be considered as conclusive of the case, and ought not to be urged 
 as a solemn decision." And Mr. Justice Bayley, in delivering his 
 judgment in the principal case, again adverted to what he is reported 
 to have said in Rex v. the Justices of Staffordshire, and observed : 
 " This is not a question upon a summary conviction {Cox v. Coleridge), 
 and not any question where the decision of the magistrates will be 
 conclusive against the party ; and whenever a question of that kind 
 shall arise, I hope I shall not be bound conclusively by any obiter 
 dictum which may have fallen from me in Rex v. the Justices of 
 Staffordshire. Whenever that point shall be distinctly raised, my 
 mind shall be open upon it, and I shall be ready to hear it discussed 
 on the one side and the other, and deliver my opinion upon de- 
 hberate consideration." So late, in fact, as Trinity Term 1826, in 
 a case,^ in which it was decided that evidence could not be received 
 in support of an information under the game-laws in the absence of 
 the defendant, at least, where he had not been personally summoned 
 to appear to the information; and where it was shewn, that an 
 attorney, who had been permitted to attend, had been prevented 
 from cross-examining the witnesses ; Loi-d Tenterden (then Abbott 
 C. J.) said : " Whether the defendant was or was not bound, in 
 point of law, to permit the prosecutor's attorney to be present, and 
 to act for him, I will not, upon the present occasion, pretend to 
 decide ; it is a very important question ; and whenever it is regularly 
 brouo^ht before me, I shall give it that grave consideration which it 
 deserves. But having permitted him to be present, and to act, the 
 defendant was wrong in interrupting him." 
 
 From these citations it may be therefore, at all events, con- 
 
 1 Rex V. Commins, 8 D. & R. 344.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 5T 
 
 eluded, that the point is not as yet warped by authority ; that 
 whenever the point shall arise, the arguments of the counsel will 
 probably be entirely directed to the reason, propriety, convenience, 
 and justice of the concession, that parties accused before magistrates 
 of an offence that is ripe for a conviction or acquittal, generally lay 
 claim to. And when the question is subjected to this test, it 
 seems unaccountable that the right of attornies to advise, and at- 
 tend upon such examination and proceedings, should ever have been 
 questioned. Complicated questions of law often arise before ma- 
 gistrates under penal statutes, in which cases, without the assistance 
 of a legal adviser, it might happen that a defendant would be sub- 
 jected to the greatest injustice, without any possible mode of relief, 
 where the right of appeal is taken away by the statute. When, 
 therefore, the reader reflects on the unlimited trust which is reposed 
 by the law in the magistracy of the country, whose conduct cannot 
 be questioned, far less impeached, for the grossest errors in judg- 
 ment, so long as they are not influenced by corrupt motives or 
 designs ; and when he remembers, that this is not a right claimed, 
 which has had until this moment no existence in the eye of the 
 law, but a privilege which the subject has enjoyed from the earliest 
 periods, in the superior courts of justice,' and even at the quarter 
 sessions ; it is presumed he will not think it too bold an assumption to 
 state, as the probable opinion that would be expressed by the Bench, 
 were the question agitated, that, although in ex parte and prelimi- 
 nary investigations it may be highly expedient that magistrates 
 should have the power of preserving the utmost secrecy, by pre- 
 venting any disclosure, either through the medium of professional 
 advisers, the pubhc journals, or any other channel; yet, that a de- 
 fendant, accused before justices of the peace of an offence against a 
 penal statute, when the magistrate is sitting judicially, and with power 
 to decide upon law, fact, and punishment, has a right to api)oint an 
 attorney as his legal representative, and to avail himself of his 
 assistance in framing and conducting his defence to the charges 
 alleged by his prosecutor. 
 
 b. To continue original actions after collusive payment of debt. — 
 This right, which the courts have recognized even so late as in the 
 case of Morse v. Coolce{' is one which is prompted by the dictates 
 of justice, and upheld for the prevention of fraud. It is a power 
 vested by courts of law in attornies, enabling them to guard against 
 the detriment that would accrue to them from preconcerted arrange- 
 
 1 Bac. Abr. tit. Attorney, B. 2 1,3 Price, M?, ; s. c. 1 M'CIehnd, 211. 
 
 VOL. II. I
 
 /)8 l.VW TRACTS. NO. I. [CAP. III. 
 
 ments between the parties to the cause, without the knowledge of 
 their legal advisers. It has for its object, the protection of the 
 interests of attornies against the fraudulent machinations of their 
 employers ; but it only exists where unfair dealings, or covinous 
 proceedings, render it imperative on the court to permit its exercise, 
 and is not countenanced where notice of the parties' intentions is 
 made known, when, in fact, they do not collude for the purpose of 
 depriving the attorney of the remuneration he is entitled to, but act 
 fairly and openly, with the sole intention of terminating their 
 difterences, and arresting the progress of the suit. To exemplify 
 these general principles, the reader may be referred to several 
 authorities. Among the most prominent is that of Cole v. Bennett,^ 
 where it appeared, from the affidavits filed in the cause, that the 
 defendant had been served with a process at the suit of the plaintiff 
 in the month of October ; that the defendant told the plaintiff's 
 attorney, that he owed him nothing; and the plaintiff told the de- 
 fendant, that he had given no instructions for any process ; that 
 subsequently, however, on the 22d of November, in consequence of 
 some transactions betwixt the plaintiff and defendant, a receipt was 
 given by the plaintiff, with a memorandum on the same, stating 
 that no further proceedings were to be had against the defendant ; 
 each party to liquidate his ow^n costs. The plaintif}"s attorney 
 afterwards continued the action for recovery of his costs, alleging 
 that he ought to have been cognizant of the settlement that had 
 taken place : — this the Court deemed no more than just, and 
 allowed the cause to be proceeded in. So again, an application to 
 set aside proceedings against bail was even negatived, wherein it 
 was shewn that they had colluded with the defendant and his 
 attorney, in settling the action without reference to the plaintiff's 
 attorney's right.- But where the defendant had paid the debt, and 
 part of the costs, the Court refused to permit the plaintiff 's attorney 
 to use the name of his client, to try whether he was entitled tu the 
 costs of a declaration, to which he laid claim, and which the de- 
 fendant refused to acquiesce in.^ This was not allowed, on the 
 ground that the ingredient essential in such cases was wanting. The 
 defendant, so far from not paying the plaintiff's attorney, and en- 
 deavouring to cheat and defraud him, had in reality acted a 
 conscientious part : he had paid part of the solicitor's demand, and 
 
 ' 6 Price, 15; and see Toms v. Powell, 6 Esp. 40; s. c. 7 East, 536; s. c. 
 3 Smith's Rep. 554. 
 
 - Swain v. Senate, 2 N. II. 1*9. '-^ Ciiarlwood v. Berridge, 1 Esp. 345.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 59 
 
 disputed his right to exact from him the amomit he did. No fraud, 
 covin, or deceit, actuated the proceedings of the defendant so as to 
 render him, in this manner, amenable to the attorney. So it has 
 been decided, that if the plaintiff and defendant coUusively settle 
 the debt and costs upon an execution, in order to defraud the 
 attorney of his costs, the attorney cannot sue out a second execution 
 on the same judgment.' In the two last cases, the attorney should 
 have instituted a distinct action, or have availed himself of a special 
 application to the Court, as in the one case, it may be repeated, 
 there was no trace of the existence of fraud ; and in the other, the 
 original suit had been brought to a termination. 
 
 c. To appoint his Clerk a Commissioner to examine Witnesses 
 abroad. — Under a commission issued to examine witnesses abroad, 
 an objection was made to its validity, on the ground that the attorney 
 had appointed his own clerk as one of the commissioners on the 
 behalf of the plaintiff;— but the Court denied that there was any 
 force in the objection, although reference was made to the cases of 
 Newton v. Foot,^ and an anonymous decision in Ambler's Reports,^ in 
 the former of which, where the clerk of the plaintift^s solicitor having 
 sat as clerk to the commissioners for examining witnesses ; the de- 
 positions taken under such commission were suppressed for that 
 reason ; — and in the latter, a deposition taken before commissioners 
 was deemed unavailable, because the attorney for the plaintiff had 
 written down the whole in the exact form of the deposition before it 
 was taken. 
 
 d. To receive Payments, and give Discharges for his Client. — 
 As a general rule, payment to an agent properly authorized, is 
 equivalent to payment to the principal, in equity as well as in law.-i 
 The payment of a debt to an attorney in a cause, has been therefore, 
 in general, considered sufficient; and from the case of Poivel v. 
 Little,^ it may be concluded, that such rule will not be affected by 
 the party's privately countermanding his attorney. But the fact of 
 the solicitor being the attorney on the record, will not discharge an 
 individual making such a payment, where it can be shewn that the 
 attorney derived his authority under a forged power ;— a nd it must 
 be, in all cases, recollected, that payment to an attorney's clerk, or 
 agent, will be of no avail." 
 
 1 Graves v. Eades, 5 Taunt. 429 ; s. c. 1 Marsh. 113. 
 
 2 2 Dick. 793. 3 p. 252. 
 
 4 Dr. & St. 286; Paley's Principal and Agent, 212. 
 
 5 1 Bl. Rep. 8. ^ Robson v. Eaton, 1 T. R. 62. 
 7 Yates V. Frccklcton, Doug. GOO.
 
 60 LAW TRACTS. MO. I. [CAP. III. 
 
 a. To enter into Contracts for the sale or disposal of his profes- 
 sional emoluments. — From tlie preamble to the clause, in the statute 
 'il'Z Geo. 2. c. 40. s. 11. it appears that unauthorized persons, by the 
 assistance or connivance of qualified practitioners, were enabled to 
 act and practise as attornies, to the prejudice of his Majesty's sub- 
 jects, and the scandal of the profession. Such was the natui*e of the 
 evils complained of, and to remedy which the act was passed. It has 
 been already seen' that the Courts are very scrupulous in visiting 
 sucli practices with their due punishment. From the anxiety they 
 have displayed, it has even been contended that attornies were pre- 
 vented, by that act, from assigning a share in the profits of their 
 business. In a case" which came before the Vice Chancellor in 1821, 
 it appeared that an attorney had died, and bequeathed all his pro- 
 perty to his widow ; that his eldest son, for the mixed considera- 
 tion of the good-will of the business, the advancement of money for 
 carrying it on, and family affection, entered into an agreement with 
 his mother, to continue the business, and to account to her for a 
 moiety of the profits during the minority of his younger brothers and 
 sisters : — His Honour, however, decided that such arrangement was 
 not inconsistent with the policy of the statute. So, where a contract 
 Avas entered into by a practising attorney, with two other members 
 of the profession, to relinquish his business to them for a valuable 
 consideration, and not to practise within certain limits ; to recom- 
 mend them to his clients, and permit them to use his name in their 
 firm for a certain time : the Court of King's Bench were of opinion 
 that the contract was unimpeachable.^ But no agreement, however 
 artificially worded or skilfully drawn, will have the effect of nullifying 
 the object of the legislature, when the inevitable consequence of the 
 arrangement is to enable an unqualified person in effect to practise 
 as an attorney. Where, therefore, the plaintiff, who was not an 
 attorney, but described himself as a writer, entered into an agree- 
 ment with the defendant, who was an attorney, to become an 
 assistant to him in his business, on condition that he received one 
 third of the })rofits in lieu of salary, but not to be considered as a 
 partner, — Sir John Leach, Vice Chancellor, held, that in point 
 oflaAv, tills v.as a partnership, and that by the necessary effect of 
 the agreement, an unqualified person was enabled to act or practise 
 as an attorney, and to use the name of another upon his account 
 and for his profit. "* 
 
 1 Ante. p. 2i5. -' Candler v. Canriler, 1 Jac. 225; s. c. 6 Mad. 141. 
 
 3 Bunn V. Guy, 4 East, I'JO; 8. c. 1 Smith, 1. 
 
 '• Tench v. Roberts, May 1819; 6 Mad. 145, n. ; Cusse v. Corfe, 6 Law Jouiii. 
 K.B. p. NO.
 
 CAP. Iir.] RELATIVE TO ATTORNIES AND SOLICITORS. 61 
 
 Sect. 2. — As to the Rights and Pricileges of the Client. 
 
 In the last section, an attempt has been made to exhibit to the 
 reader, in as clear and concise a manner as possible, the various 
 rights and privileges of attornies. The next object of inquiry 
 which naturally occurs, is, what are the corresponding immunities to 
 which their clients are entitled ? 
 
 1st. As to the Taxation of the Attorneys Bill. — In the prosecu- 
 tion of an action or suit, or in some cases where there is no cause in 
 court, the dilatory conduct or delinquency of the attorney, or a 
 variety of other motives, may induce a party to change his legal 
 representative, and to take deeds, writings, papers, and proceedings, 
 out of his hands. If this can be done amicably, it is more advisable 
 to pass over some charges in the bill than to proceed to a taxation 
 adversely.^ But if it becomes absolutely necessary to have recourse 
 to compulsory measures, the party must resort to the general juris- 
 diction which the courts possess over attornies as officers of the 
 court, or to the statutory jurisdiction, which they derive from the 
 acts of the legislature, and which are considered as introductory 
 only of regulations of the jurisdiction which the courts have exer- 
 cised for a period of time. The same observations are applicable 
 to the payment of bills of costs, upon the termination of the attorney's 
 authority. It is, however, of great importance, and incalculable 
 advantage, that chents should have an option left them, of imme- 
 diately paying the demand of costs which may be made against them, 
 or of referring the amount to the judgment of those officers whom 
 the law has deputed for this purpose. 
 
 The manner in which it is proposed to examine this privilege of 
 the chent, is, first, to lay before the reader those instances in which 
 its exercise is permitted ; then to point out the period within which 
 it must be made available ; and, lastly, to state against whom the 
 costs of taxation are, in general, awarded, adverting at the same 
 time, at intervals, to the practical mode of giving it eftect. 
 
 1. When taxed.— Vve\\o\x& to the enactments of the legislature on 
 the subject, in the reign of George II., a bill of costs could not 
 have been made to undergo the ordeal of taxation, unless an action 
 had been instituted, and was actually depending thereon,^ and even 
 
 1 As to what an attorney's charges are, in general, the practitioner may consult, 
 with advantage, Palmer's Book of Costs ; Bills of Costs and Allowances in the 
 Court of King's Bench, published in 1824 ; Turner and Venable's Practice in 
 Chancery ; and Grant's Practice in Chancery. 
 
 2 Spi'ingate v. :>in-ingate, 1 balk. 332.
 
 C)2 ^AW TRACTS. NO. I. [CAF. 111. 
 
 then, it was requisite that the amount should he hrought into court.* 
 To render this privilege of the client more effectual, and remove 
 these inconveniences and ohstructions to justice, the statute 2 Geo. 2. 
 c. 25. was passed. 2 This act was afterwards made perpetual by the 
 30 Geo. 2. c. 19. By the former statute, any judge of the court in 
 
 > Anon. 2 Ves. 451. 
 
 - Tlie 2:id section enacts, " that no attorney of his Majesty's Court of King's 
 Bench, Common Picas, or Exchequer, or Duchy of Lancaster, or of any of his 
 IMajesty's courts of Great Sessions in Wales, or any of the courts of the counties 
 palatine of Chester, Lancaster, and Durham, or any other court of record in that 
 part of Great Britain called England, wherein attornies have heen accustomably 
 admitted and sworn ; nor any solicitor in any court of equity, either in his Ma- 
 jesty's High Court of Chancery, Court of Equity in the Exchequer Chamber, 
 Court of the Duchy chamber of Lancaster at Westminster, or courts of the coun- 
 ties palatine of Chester, Lancaster, or Durham, or of the Great Sessions of Wales, 
 or any other inferior court of equity, in that part of Great Britain called England, 
 shall commence or maintain any action or suit, for the recovery of any fees, 
 charges, or disbursements, at law or in equity, until the expiration of one month 
 or more, after such attorney or solicitor respectively shall have delivered unto the 
 party or parties to be charged therewith, or left for him, her, or them, at his, her, 
 or their dwelling-house, or last place of abode, a bill of such fees, charges, and dis- 
 bursements (Barnes, 243; id. 12.3.) written in a common legible hand, and in the 
 English tongue, except law terms and names of writs, and in words at length, 
 except times and sums, which bill shall be subscribed with the proper hand of 
 such attorney or solicitor respectively; and upon application of the party or 
 parties chargeable by such bill, or of any other person on that behalf authorized, 
 unto the Lord High Chancellor, or INIaster of the Rolls, or vxnto any of the Courts 
 aforesaid, or unto a Judge or Baron of any of the said courts respectively in 
 which the business contained in such bill, or the quarter part thereof in amount 
 or value, shall have been transacted ; and upon the submission of the said party 
 or parties, or such other person authorized as aforesaid, to pay the whole sum, 
 that upon taxation of the said bill shall appear to be due to the said attorney or 
 solicitor respectively, it shall and may be lawful for the said Lord High Chan- 
 cellor, Master of the Rolls, or any of the Courts aforesaid, or for any Judge or 
 Baron of any of the said courts I'espectively, and they are hereby required to 
 refer the said bill, and the attorney or solicitor's demand thereupon, although no 
 action or suit shall be then depending in such court touching the same, to be 
 taxed and settled by the proper officer of such court, without any money being 
 brought into the said court for that purpose ; and if the said attorney, or solicitor, 
 or the party or parties chargeable by such bill respectively, having due notice, 
 shall neglect or refuse to attend such taxation, the said officer may proceed to tax 
 the said bill ex parte, pending which reference and taxation no action shall be 
 commenced or prosecuted, touching the said demand." 
 
 This statute, it will be observed, remedied another defect which was attendant 
 on the law as it stood prior to the act of Geo. 2. that it enabled clients, suing or 
 sued in an inferior court, to have bills of costs referred for taxation. This was 
 not the case imder the statute 3 Jac. I. c. 7. s. 1 ; Berkcnhead v. Henshaw, 1 Salk. 
 86; Carth. 147 ; 1 Show. %.
 
 CAP. III.] RELATIVE TO ATTOUNIES AND SOLICITORS, 63 
 
 which the major part of the business was transacted, is authorized 
 to refer an attorney's bill to be taxed, aUhough no action or suit be 
 depending. The application must be, however, either at the 
 instance of the individual hable to the charges in the bill, or of some 
 other person, whose authority to make the request must be of 
 course established.' To guard against any unfair conduct on the 
 part of the client, the legislature, in granting this indulgence, im- 
 peratively require that the party should undertake to pay the amount 
 found due upon taxation f and that during the pendency of the re- 
 ference, the attorney shall abstain from taking any legal proceedings.^ 
 The same section of the act then goes on to prescribe, that, upon 
 the bill being taxed, the party shall pay to the attorney the whole 
 that shall be found due, or, in default, be liable to an attachment or 
 any other proceeding which the attorney may select ; and provides, 
 that if, upon such taxation, it be discovered that so far from the 
 client's being indebted, the attorney has been, in fact, overpaid, 
 the latter shall refund such surplus as the officer of the respective 
 courts may direct ; or in default, render himself amenable to his em- 
 ployer, to the same proceedings as it has been just pointed out, might 
 have been resorted to by himself in consequence of the non-comphance 
 of the chent with the injunctions of the legislature. These acts are 
 not, however, it is always to be remembered, prohibitory. They 
 only appertain to particular cases, and to bills of a particular descrip- 
 tion. Independently of these, the judges of the Court of King's 
 Bench decided, that they had a right to direct the taxation of other 
 bills of costs as at common law.^ 
 
 Three species of questions have generally arisen on this branch 
 
 1 The Court accordingly refused to order a solicitor's bill to be taxed, on the 
 application of the solicitor himself; Sayers v. Walond, 1 Sim. & Stu. 97; Lang- 
 ford V. Nott, I Jac. & Walk. 291 ; Craddoc v. Glin, 12 Mod. G57. 
 
 2 2 Geo. 2. c. 23. s. 23. 
 
 3 Ibid. But in Hewitt v. Bellott, 2 B. & A, 745, where more than one-si.xth 
 part of an attorney's bill had been taken off on taxation ; the defendant had pre- 
 sented a petition to the Vice Chancellor tq allow the costs of taxation ; pending 
 this proceeding, the attorney had brought his action for the residue of the bill: — 
 the Court held, that the action had been correctly brought. So where an order 
 had been made to tax a solicitor's bill, and proceedings stayed at law till the re- 
 port, the solicitor had died before a report, the taxation was not continued,— his 
 administratrix proceeding at law against the client, was held not to have com- 
 mitted a contempt : Ex parte Houlditch, Swanst. 58. 
 
 4 Anon. 2 Chit. Rep. 155. Where, however, the taxation is \inder the statute, 
 care ought to be taken that its provisions have been scrupulously adhered to ; for 
 where a bill had been delivered, but not signed, the Couit refused to order it to 
 be taxed : Ellison v. Kirby, ('a. Pr. fiO.
 
 01 LAW TRACTS. NO. I. [CAP. III. 
 
 of our subject; lirst, us regards the power of taxing particular 
 cliarges; secondly, as affects tlie right to have the wliole of a 
 ])ill taxed, v.liere some of the items included in it were not taxable; 
 and, lastly, to what particular parties these rules attach. 
 
 Th(' words used in the act are, "fees, charges, and disburse- 
 ments." Such expressions have been decided to mean, " for some 
 business done in a court of justice." The courts of law, in explaining 
 the extent and meaning of this term, have held, that charges " for 
 taking instructions to commence an action, drawing and ingrossing 
 affidavit of debt, and attendhig to get it sworn and paid oath," were 
 to be considered as charges for business done in court. So they 
 have held, that charges for holding the court leet of a manor, by 
 the steward, an attorney, were charges for business connected with 
 his professional character, and therefore, like conveyancing charges, 
 taxable when found in a bill containing any taxable items. 2 So a 
 dedimns jiotestatem, charged in an attorney's bill, was held a suffi- 
 cient item to enable the Court of Common Pleas to refer a bill for 
 taxation, though it was with this exception entirely for conveyanc- 
 ing.^ So the bill of a solicitor prosecuting an extent for the Crown 
 may be taxed ;'* and, indeed, all charges for whatever may be due 
 to an attorney in the progress of a suit, come within the terms of 
 the statute. Accordingly, in the case of Fearne v. IVilson,^ the fact 
 of an attorney attending a defendant to a lock-up house, filUng up a 
 bail-bond, and obtaining a release, was decided to be a taxable 
 item. It may be, indeed, with some degree of plausibihty argued, 
 that it is no part of the duty of an attorney to fill up a bail-bond ; 
 that it is properly the employment of the sheriff's officer; and 
 that, therefore, the taxation ought not to have been directed ; but, 
 as observed by the Lord Chief Justice in that case, if an attorney 
 chooses to do that which is not strictly his duty, and thinks it right 
 to make a charge for what he has done, and make a profit of it, we 
 must consider him as acting in the character of an attorney ; and 
 therefore, that in all such instances, his bill is taxable. So the Court 
 of King's Bench have referred an attorney's bill to be taxed, though 
 the whole of the business was transacted at the quarter sessions.^ And 
 
 1 Winter v. Payne, 6 T. R. 645 : Anon. Lofft. 341. 
 
 - Lnxmore v. Lethbridge, 5 B. & A. 896; s. c. 1 D. & R. 511 : see Ex parte 
 Corpus Christi College, 5 B. & A. 49. 
 
 3 Ex parte Prickett, 1 N. R. 266. ^ Rex v. Collingridge, 3 Price, 280; 
 
 Rex. V. Bach. 9 id. 349. 
 
 5 5 Law Journal, K. B. p. 28 ; s. c 6 B. & C. 2 ; s. c. 9 D. & R. 157. 
 
 6 Ex parte Williams, 4 T. R. 495, over-ruling s. c. 4 T. R. 124 ; Beal's case, 
 12 Mod. 252.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 65 
 
 a bill was referred to be taxed, for business done in a criminal suit in 
 the Court of Great Sessions at Carmarthen.^ In like manner, the 
 Court of King's Bench will refer a bill to be taxed, although the 
 whole of the business was done in the Insolvent Debtors Court.^ 
 Upon similar principles, the Courts have held, that items for at- 
 tending and examining bail — attending plaintiff in several actions, 
 and arranging to take cognovits therein, — came within the words of 
 the statute.^ So, the obtaining a bankrupt's certificate, and applying 
 for the Lord CJiancellor's signature, is business done in court, and 
 taxable.'' And a bill of costs by a solicitor under a commission of 
 bankrupt, containing charges respecting an action at law or suit in 
 equity, may, although settled by the commissioners, be always taxed 
 by the officer of the court in which the business may have been done.^ 
 And a solicitor's bill for striking a docket, and a journey to get an 
 affidavit of debt, being business relating to the bankruptcy, although 
 previous thereto, has been ordered to be taxed. ^ But charges for 
 searching to see whether satisfaction of a judgment was entered — or 
 whether an issue was entered or docketed, are not " fees, charges, 
 or disbursements,"'^ within the 2 Geo. 2.^ So, the costs of an ap- 
 plication to the King in Council, for a reference to the Lord Chan- 
 cellor to report his opinion, — as in the instance of an application for 
 a commission of review of the sentence of a Court of Delegates, there 
 being no cause, and the original application being to the King, are 
 not within the statute.^ So, in the case of Burton v. Chatterton,^^ 
 where the charge was for drawing an affidavit of debt and bond to 
 the Chancellor, in order to obtain a commission of baiikruptcy, but 
 the affidavit was never sworn, and the commission never issued, — the 
 Court h^ld, that the items were not taxable, as a party could not 
 properly be said to proceed either at law or in equity until something 
 
 ■ Lloyd V. Maund, Tidd's Pr. 330. Sed vide Ex parte Partridge, 3 Swanst. 398. 
 
 ^ 1 Carr. & P. 616. Smith v. Wattleworth, 4 B. & C. 364 ; s. c. 6 D. & R. 510. 
 
 a Watt V. Collins, 1 R. & M. 284. 
 
 ■^ Collins V. Nicholson, 2 Taunt. 321; s. c. 1 Rose, 119. Ea; parte Wan*en, 
 Mss. cited Arch. Bankr. Laws, 218, 2d edit. 
 
 5 See G Geo. 4. c. 16. s. 14; 5 Geo. 2. c. 30. Stewart v. Allison, 1 Meriv. 32.' 
 In re Westall, 3 Ves. & Bea. 141. In re Gregson, 3 Mad. 49. Ex parte Neale in 
 re Norris, 2 Glyn & J. 226; and see Ex parte Palmer in re Freuston, ibid. 34 ; Ex 
 parte Gore in re Turner, ibid. 117. ^ In re Smith, 5 Ves. 706. 
 
 7 Wliere an attorney had paid money, in consequence of his undertaking to pay 
 the debt and costs : this was holden not to be a disbui'sement by him as an 
 attorney within the meaning of the statute : 6 Taunt. 196; s. c. I Marsh. 539. 
 
 8 2 Carr. & P. 45; s. c. 1 Ry. & Moo. 262. » 5 Ves. 633. 
 10 3 B. & A, 486 i s. c. 2 Stark. 522.
 
 66 LAW TRACTS. NO. I. [cAP. III. 
 
 liad been done by him under the authority of a court, and the mere 
 preparation of the bond and affidavit, could be only viewed as pre- 
 liminary steps. Opposed to this last case are two decisions at Nisi 
 Prius, — Sandom v. Bourn,^ and Weld v. Crawford i^ in the former of 
 which it was held, that a bill was taxable which contained a charge 
 for preparing a warrant of attorney, with a view to business to be 
 done in court ; and in the latter the same doctrine was given effect 
 to, although the warrant had never been even executed. 
 
 It is to be regretted that the case of Weld v. Crawford, above re- 
 ferred to, was not brought under the notice of the Court in the case 
 of Burton v. Chatterton. But when it is remembered, that the 
 decision in the case of Sandom v. Boiirn was, although not expressly 
 repudiated, designated by the Judges " a mere Nisi Prius adjudi- 
 cation," there is no well founded ground for supposing that the case 
 of Weld V. Crauford would not share the same fate, and be subject 
 to similar animadversion, if submitted to the attention of the Court. 
 
 It must be, however, always remembered, that, although these 
 decisions have taken place, the Courts possess a power entirely inde- 
 pendent of the provisions of the legislature, to refer any bills what- 
 ever to be taxed. This they can do under their general jurisdiction; 
 and, in fact, they have exercised it in the very case of a warrant of 
 attorney, in the decision of Wilson v. Gutteridge.^ But, notwith- 
 standing there was, in fact, no authority by which such items as the 
 preparation of an affidavit of debt and bond to the Chancellor, for 
 the purpose disclosed in the case of Burton v. Chatterton, could 
 have been referred for taxation under the terms of the 2 Geo. 2, 
 yet, wherever the Courts can, even collatei-ally, assume a juris- 
 diction, they will exercise it. This may be seen by a reference to 
 Vesey's Chancery Reports.^ In that case, it was doubted whether 
 the taxation of a solicitor's bill could be enforced, on application for 
 the delivery of deeds in his possession ; but Lord Eldon considered 
 the having deeds in his possession, affijrded an original jurisdiction, 
 out of which the order for taxation flowed as consequential.^ Where, 
 however, an attorney makes out one bill for one of his clients, which 
 contains taxable items, and another against this client jointly with 
 others, which contains no taxable items, the Courts will not go so 
 far as to allow the former to draw the latter with it for taxation.** 
 
 1 4 Campb. 68. ^ 2 iStark. 538. » 3 B. & C. 15? ; s. c. 4 D. & R. 736. 
 
 -1 EeEarl of Uxbridge, GVes.425. Partridge, 2Meriv. 501. Beames' Costs, 2/3. 
 ■'> In an action on a bond to indemnify the plaintifi" from the costs. 
 '^ Langley v. Furnival, 6 Law Jouni. K.B. 330.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 07 
 
 In unison with the rules ui)on which, it will have been by this time 
 observed, the majority of the cases have been decided, it has been 
 held, that a solicitor's bill of fees for proceedings before the Lord 
 Chancellor, in the exercise of a visitorial power under a royal foun- 
 dation, is not affected by the act, not being proceedings at law or 
 in equity, or in the exercise of the Chancellor's equitable jurisdic- 
 tion.' So a bill of costs for soliciting an act of parliament, which. 
 Lord Eldon has observed, any one might do, if it relates solely to 
 obtaining the act, although done by a solicitor, is not taxable.^ And 
 the Courts cannot order a solicitor's bill of costs, for business wholly 
 done in the House of Lords, in the prosecution of an appeal, to be 
 referred to the officers of the court.^ And on the same ground, it 
 the whole of an attorney's bill be for conveyancing, it cannot be 
 referred for taxation.^ 
 
 We now come to the question of how far a bill is liable to be 
 taxed where it contains a variety of items, of which a portion is only 
 within the act. If the bill includes parliamentary business, or fees 
 paid for business in the ecclesiastical courts, or for business at the 
 quarter sessions, or for levying fines and recoveries, or for fees and 
 disbursements in causes, the whole bill is subject to taxation.^ So, 
 where a solicitor has delivered separate bills, one for conveyancing, 
 and the other for fees and disbursements in causes, both must be 
 taxed ; they form one bill.^ For it has been observed, the expenses 
 of conveyancing, as such, are not taxable ; they are not to be con- 
 
 of a cause, where the breach was, that the plamtifF had been obliged to pay these 
 costs, and that the defendant had refused to repay him, the Court refused to refer 
 these costs to the Master for taxation, aUhough they advised the plaintiff to have 
 them taxed, in order to avoid a suit in equity : 1 Barnard, 144. But where the objec- 
 tion to the reference was, that no item in the bill was for business done in the 
 Court of King's Bench, the Court said, that an action having been brought on 
 the bill, that alone was sufficient to warrant them in referring it to the Master 
 for taxation: Evans v. Biers, 2 Barn. 182; Gregg's case, 1 Salk. 189; s. c. Holt, 
 274. See Spelman v. Woodbine, 1 Cox. 49 — where it was held tliat the rules of 
 taxation, as between attorney and client, do not apply when they appear as party 
 and party in a cause. 
 
 ' In re Dann, 9 Ves. 547. 2 J„ re Wheeler, 3 Ves. & Bea. 21. 
 
 •' Hillier v. James, Barnes, 41 ; Williams v. Odell, 4 Price, 279 : see In re Fea- 
 ron, 5 Ves. 633. 
 
 4 Anon. Barnes, 41 ; Bull. N. P. 145 ; INIargerum v. Sandiford, 3 Bro. C. C. 233. 
 It is suggested, in a work on Chancery Practice, (Turner and Vcnable's Practice 
 in Chancery, vol. i. p. 849, Gth edition,) that the obiter dictum, which will be found 
 in the case of Ex parte Prickett, 1 N. R. 26(5, that where an attorney was em- 
 ployed, the Court of King's Bench had held, that they might refer a bill for 
 taxation, though it contained 7!0 laxo articles, seems to indicate a strong disposition, 
 at some future period, to subject a biU for conveyancing to taxation by the 
 Master. 
 
 5 2 Doug. 499, n. ; In re Williams, 4 T. R. 124. 
 *5 Green v. Hassel, Sayer, 233 ; 2 Hull. 502.
 
 68 LAW TRACTS. NO I. [cAP. III. 
 
 sidered as "fees, charges, or disbursements" at law or in equity; but 
 if one sinfjle item, wliich may be so considered, is to be found in the 
 bill, the charges for conveyancing fall within the statute ; on the 
 principle, that what is paid for conveyancing, is paid in the character 
 and in the exercise of the duties of an attorney ; and a person shall 
 not be allowed to split his demand, for the statute attaches upon the 
 afrirreiiate amount which he has in that character : and that this rule 
 would hold, though some of the Hems were wholly unconnected with 
 the attorney's professional capacity.' It should seem, however, that 
 if no hill be delivered, an attorney would be entitled to recover items 
 charged in respect of payments for the clients, not referable to the 
 business of a solicitor, although a bill of particulars by a judge's order 
 contained other items, which might be taxable under the statute.'-' 
 
 The third question, which it has been premised, has occupied the 
 attention of the Court, is, to what parties the rules which have been 
 given effect to apply. The instances in which it has most frequently 
 occurred, are those where the death of the attorney has taken place, 
 subsequent to the performance of the business by the testator or 
 intestate. An executor, or administrator, in general represents the 
 person of the testator or intestate, in respect of his personal estate, 
 to all intents and purposes ; and accordingly, although it was formerly 
 held, that an attorney's bill delivered by his executor,'^ or admini- 
 strator,'* was not subject to taxation ; a different rule now prevails. 
 In the case of Penson v. Johnson,^ the cases which have been just 
 alluded to were disregarded, and a reference awarded. 
 
 2. Period of Taxation, and effect of particular arrangements. — 
 It has been laid down, in a work on the Law of Costs,'' that, pre- 
 vious to an attorney's bill being settled and paid, it may be taxed, 
 as a matter of course, at any distance of time, the statute prescribing 
 no particular period for its taxation ; but that when it has been settled 
 and paid, and the payment has been long acquiesced in, and re- 
 peated opportunities to tax have been neglected, the Court will not, 
 as of course, direct a taxation :' as, where a bond had been given in 
 payment of an attorney's bill five years before." So where several 
 
 1 Hill V. Humphreys, 2 B. & P. 343 ; s. c 3 Esjj. 254 ; Crowdcr v. Sliee, 1 Cainp. 437. 
 '^ JNiowbray v. Fleming, 11 East, 285; Miller v. Towers, Peake, 162; Lloyd v. 
 Mead, cited 2 B. & P. 344 ; Benton v. Garcia, 3 Esp. 149, contra. 
 
 3 Chappie V. Chapman, Barnes, 122 ; Christmas v. Chase, id. 1 19. 
 
 4 Griffith V. Squire, Ca. Prac. 58. 
 
 5 4 Taxmt. 724 ; Gregg's case, 1 Salk. 89 ; "Weston v. Pool, 2 Str. 1056. 
 
 *■ Hullock (now Baron Ilullock) on the Law of Costs, p. 501 — 507 ; Doug. 199. 
 ' Trim v. Slater, Barnes, 4(3 ; (button v. Purdon, 1 Turn. & Kuss. 301 j 
 Gictton V. Lcybunie, ibid. 407. ^ I^Iarsh v. Carter, Ca. Prac. 109.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. GO 
 
 bills had been delivered in, settled, and paid, in the course of a long 
 cause, and a receipt in full given at the end of a cause.' And it is a 
 general rule, that an attorney's bill cannot be taxed at the trial of an 
 action brought upon it, nor a/ter verdict,^ nor after judgment by 
 default and a writ of inquiry executed.^ 
 
 In the case of Lee v. Wilson,'^ it must be allowed that an excep- 
 tion to the rule, that a bill cannot be taxed after verdict, was given 
 effect to by the Court of King's Bench ; and that it has been even 
 confii'med by the same court in a very late decision.'^ But the re- 
 luctance manifested by the Judges, and the terms upon which they 
 granted the indulgence, appear to justify the above statement as a 
 general principle. In the instance put in Mr. Chitty's Reports, a 
 rule had been obtained, calling on the plaintiff's attorney to shew 
 cause why his bill of costs should not be referred to the Master for 
 taxation after an action had been brought upon it, and a verdict 
 recovered, on a suggestion that a considerable portion of the plain- 
 tiff's bill was included in the verdict of the jury, which it was 
 obvious that the Master could not have allowed on taxation. It 
 appeared that the defendant had made a defence at the trial, and 
 had afterwards paid the whole amount of damages, with costs, into 
 court; from which facts it was now urged, in shewing cause against 
 the rule, that the effect of the present motion would be to grant the 
 defendant a new trial after he had taken the sense of the jury upon 
 his case, and after he had omitted to apply for a new trial within the 
 time prescribed by the rules of the court; and it was also contended 
 that the case of Hewitt v. Ferneley^ was decisive of the pre- 
 sent question; in which the Court of Exchequer would not stay 
 the postea in the hands of the associate for the purpose of having an 
 attorney's bill, upon which an action had been brought, and a 
 verdict recovered, referred for taxation, and to be indorsed accord- 
 ing to the allocatur, even where the jury had expressly found a 
 verdict for the plaintiff for the amount of his bill subject to taxation; 
 and thereupon discharged the rule for the apphcation, Mith costs. 
 But it was maintained by the defendant's counsel, that although 
 this M-as a novel application, yet still, that the Court would certainly 
 interpose for the benefit of the defendant, if they saw that manifest 
 injustice had been done by the course taken at the trial, as the jury 
 could not be supposed to be competent judges of the items included 
 
 1 Fistor V. Dunbar, 1 Anstr. 18G. 
 
 2 Hooper v. Till, 1 Doug. 198 ; Hewitt v. Ferneley, 7 Price, 2'6A. 
 
 3 Clarke v. Taylor, Barnes, 12-1 ; s. c. Ca. Pr. 118; s. c. Pr. Reg. 38. 
 
 4 2 Chit. Rep. 63. ^ Nuttali v. Marr, 3 D. & R. 33. 
 <"' 7 Price, 234.
 
 70 LAW TRACTS. NO. I. [cAl'. HI. 
 
 ill an attorney's bill. The Court said, that they would make the 
 rule absolute ; but upon such conditions as would prevent the case 
 from being quoted as a precedent in future ; and they therefore 
 acceded to the application, upon the terms that the defendant should 
 pay the costs of the application, the costs of the taxation, and the 
 costs of the cause as between attorney and client, and not as between 
 party and party ; with liberty to take the money out of court. 
 
 The statement of the facts in the other case, which is reported 
 by Messrs. Dowling and Ryland, is very short. No particular 
 grounds are disclosed which would appear to have sanctioned the 
 interference of the Court, provided tiiey subscribed to the doctrine 
 of former decisions. But when they made the rule which had been 
 obtained to refer the bill for taxation absolute, they did so, observ- 
 ing that they were by no means disposed to encourage the practice, 
 as it created additional delay and expense, and as the hill ought 
 always to be taxed before trial. 
 
 It seems to have been settled by Lord Hardwicke, as a general 
 doctrine, that if a bond or security has been given or entered into 
 by the client to the solicitor, during the pendency of the cause or 
 proceeding, the security will be entirely set aside, or, at any rate, 
 restricted in its operation to the amount of such fees as may be 
 found due to the solicitor, upon a regular taxation of his bill, and the 
 bill of fees, if insisted on, must be taxed.' And so a settlement of a 
 bill of costs pending the suit, while the client has no professional 
 adviser except the solicitor, has been held no bar to the taxation.'' 
 
 Such are the general rules as to the period which the Courts 
 prescribe to themselves in ordering the taxation of attornies' bills. 
 Under special circumstances, however, they will, after an attorney's 
 bill has been settled and paid, refer it to be taxed ; as, if it be estab- 
 lished by affidavit that the business has not been done, or that the 
 charges are fraudulent.^ In such cases, neither payment of the 
 money, nor a release, nor a judgment for the demand, nor a bond, 
 nor a warrant of attorney to confess judgment, will preclude tax- 
 
 1 Saunderson v. Glass, 2 Alk. 298; Newman v. Payne, 4 Bro. C. C. 350 ; Detillon 
 V. Gale, 7 Ves. 584; Lewes v. Morgan, 3Ansir. 769; Attornej' General v. Brown, 
 Forrest. 115 ; Hazard v. Lane, 3 Meriv. 285 ; Plenderleath v. Frazer, 3 Ves. & Bea. 
 174 ; Walmesley u. Booth, 2 Atk. 29; Wood v. Downes, 18 Ves. 120. 
 
 - Crossley v. Parker, 1 Jac & Walk. 460. 
 
 ^ Bennct v. Hart, Say. Costs, 323; Shaw v. Pickering, 1 Doug. 198, n. ; 
 Anderson i-. May, 2 B. & P. 237 ; Downer v. Fortescue, 2 Atk. 295 ; Aubrey v. 
 Popkin, Dick. 403; Langstafie v. Taylor, 14 Ves. 262; Hazard v. Lane, 3 Meriv. 
 285; Ex parte Neale, in re Norton, Buck. Ill ; Lewes v. Morgan, 6 Price, 42; 
 Glutton V. Pardon, 1 Turner & Russell, 301. The petition to tax a bill in such a case, 
 should state objectionable items: E^ parte Berciford, 2 Glyn tv Jam. 259.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 71 
 
 ation.i Where, therefore, the charges in a soUcitor's bill appeared 
 primd facie exorbitant, it was ordered to be taxed after payment 
 made, and even after the death of the assignee who paid it.^ And 
 upon a motion to dissolve an injunction, restraining a solicitor from 
 proceeding upon bonds given while the business was depending, 
 Lord Eldon laid it down as the principle upon which the Court acts — 
 that they may order taxation, as Lord Camden^ did, after eight 
 years ; and Lord Hardwicke,'* after twenty-one ; and an actual secu- 
 rity given ; where the Court can see that it was obtained by the undue 
 pressure of that influence which the situation of an attorney gave, 
 permitting the security to stand for what is justly due ; and observed 
 that he would go much further ; for that after security given, and even 
 payment, if the client can point out in the bill, gross errors, charges 
 amounting to imposition and fraud, the Court will refer the whole bill.' 
 
 Where the attorney in a cause agreed that certain persons should 
 tax the costs as between party and party, the Court of King's 
 Bench refused to refer the bill to be taxed.® And where a rule 
 had been served for taxing an attorney's bill, the same Court would 
 not grant an attachment against the attorney for not paying the 
 balance due to his chent, until the costs had been taxed, though 
 the balance was admitted, and an agreement had been entered into 
 to dispense with taxation.'^ 
 
 3. By whom to be taxed, and mode of enforcing Taxation, — 
 The application to refer an attorney's bill to be taxed, must be 
 made to the court in which the business respecting which the claim 
 is made, was transacted.^ The mode of enforcing a taxation of an 
 attorney's or solicitor's bill, is purely of such a practical nature, that 
 the instructions connected with this part of our subject, have been 
 inserted in the note.^ 
 
 1 Brooks u. Bourne, 1 Price, 12 ; Gower i-. Popkin, 2 Stark. 85 ; Crossley v. Parker, 
 1 Jac. & W.460 ; Brown v. Brown, 1825, Chanc. iMss. 
 
 ^ Ex parte Neale in re Norton, 1 Buck. 111. 
 
 3 Aubrey v. Popkin, Dick. Rep. 403. 
 
 4 Lyddall v. Weston, 2 Atk. 19 ; Dormer v. Fortescue, 2 Atk. 295. 
 
 5 Cooke V. Settree, 1 Ves. & Bea. 12(5. 
 
 c Iveson v. Conington, 1 B. & C. 160; s. c. 2 D. & R. 307 ; s. c. 1 Law Journ. 
 K.B. 71 ; and see Ex parte Heyden, 2 Glyn & Jam. 52. 
 
 7 V. Barton, 2 Chit. Rep. 66. 
 
 8 Gregg's case, 1 Salk. 89; s. c. Holt, 472; Hull. Costs, 51 J. Accordingly the 
 Courts of Law and Equity respectively send such parts of the bills as do not relate 
 to business in their own courts to the other ; and in Osbaldiston v. Cross, 2 Com. 
 612; s. c. 2 Eq. Ca. Abr. 8. pi. 21. the Court refused to order an account in equity 
 for an attorney's bill, which had been taxed in the Common Pleas. 
 
 i> If an attorney refuse to deliver a signed bill to his client, the atter may com- 
 pel liira, by taking out a summons before a Judge, entitled in one of the causes
 
 72 LAW TRACTS. NO. I. [CAP. III. 
 
 in wliich he was concerned : and in the King's Bench, if the attorney, on being 
 served therewith, do not attend, an order will be made for delivering it within a 
 reasonable time. In the Common Pleas, three summonses are necessary, in case 
 of non-attendance, before an order can be obtained. (Imp. C. P. 574. Ajjpend. XIV. 
 and 29-30.) And in either court, if the attorney still neglect to deliver it, the 
 order should be made a rule of coiu-t ; and on personal service of the rule, (2 Chit. 
 Rep. Gfi.) and making affidavit thereof, the Court, on motion, will grant an 
 attachment. The bill being delivered, a Judge's summons may be obtained, for 
 the attorney to shew cause why it should not be referred; upon which, if the 
 attorney attend, and the Judge think it reasonable, he will make an order of 
 course, on an undertaking, signed by the client or his attorney, to pay what shall 
 appear to be due. And in the King's Bench, a peremptory order will be made in 
 like manner upon the first summons, in case of non-attendance. (Imp. K. B. 574.) 
 But in the Common Pleas, if the attorney do not attend, there must be three 
 summonses taken out, and an affidavit made of the service and attendance thereon, 
 before the Judge will make an order ex parte. (Imp. C. P. 575.) But in neither 
 court can the client have a summons for delivery of the bill and taxing it together. 
 (Imp. K.B. 574; Barnes, 126.) When the order is made, a copy of it should be 
 served, with the Master or Prothonotary's appointment thereon to tax the costs. 
 And in the King's Bench, by a late rule, (R. H. 32 Geo. 3. K. B. 4 T. R. 580.) 
 on every appointment to be made by the Master, the party on whom the same is 
 served, shall attend such appointment without waiting for a second, or in default 
 thereof, the INIaster shall proceed ex parte on the first appointment. But in the 
 Common Pleas, it is said, there must be three appointments, in case of non-attend- 
 ance, before the Prothonotary can proceed ex parte. (Imp. C. P. 575.) : nor will 
 that Court require the attendance of a third person before the Prothonotary on 
 the taxation of a bill of costs, which had been referred to him in aid of a Master 
 in Chancery to whom the reference had been previously made : 3 Moore 3. See 
 
 I Tidd's Prac. 336. 8th edit. ; 1 Arch. Pr. K.B. 3G. 2nd edit. ; Protheroe v. Thomas, 
 8 Taunt. 670 : sed vide 1 Lee's Diet. B. R. 133. 2nd edit. 
 
 A client who wishes to get his solicitor's bill taxed, or to compel him to 
 deliver up all deeds, papers, .and wiitings in his custody as solicitor, may obtain 
 an order for that purpose, by petition to the Master of the Rolls, or by motion as 
 of course, the client vmdcrtaking to pay what should appear to be due from him 
 on such taxation. If the a])plication to have the solicitor's bill taxed is made by 
 a party in a cause, the order for that pm-pose may be entitled in the cause, as it then 
 belongs tothegeneraljurisdictionoflheCourtto make such order. (Bignolu. Bignol, 
 
 I I Ves. 328.) If the party wlio obtained this order afterwards dies, his representative 
 cannot revive it but upon the same terms — the undertaking to pay. (2 Atk. 1 14.) 
 When the client has obtained this order for taxation, a copy of it should 
 be served personally on the solicitor, and the original order shewn to him. If 
 this order be not obeyed, another order may be obtained, upon affidavit of service 
 of the first order, and that the first order has not been complied with, that the 
 solicitor should deliver his bill within a given time (usually four days), or stand 
 committed. If he persists in his disobedience, an order may be obtained for hir 
 commitment, upon an affidavit of the service of the last order, and of his con- 
 tempt of it. If the solicitor obeys the order, such order, and the bill of disburse- 
 ments delivered by him, are taken to the Master's office, to whom the reference 
 is made, and the usual warrant sued out and served on him, and the Master then 
 proceeds to tax the difierent items in the bill : Newland's Chancery Pr. p. 222-3.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 73 
 
 4. Costs of Taxation. — By a legislative provision,' if a sixth part, 
 or more than a sixth part of the bill be declucted, the attorney shall 
 pay the costs ; but if less than a sixth, then the Court is directed to 
 award the costs of the taxation according to its discretion.^ 
 
 In the exercise of the power, which this act has given to the 
 Judges, of awarding costs, it must be always borne in mind, that it is 
 only discretionary in the latter instance. For where more than a 
 sixth is taken off, the words of the statute are imperative upon the 
 attorney to pay the costs of taxation; the terms of the act being, 
 *' that where the bill taxed is less by a sixth part than the bill de- 
 livered, the attorney is to jiay the costs of taxation."^ And even 
 where in taxing a solicitor's bill only two shillings made the dif- 
 ference — and it was thought an extreme case, for this small sum, to 
 visit the solicitor with the costs of the taxation — the Court held, that 
 they could not enter into that consideration, and the solicitor was 
 accordingly adjudged to pay the costs of the taxation ;"* and the rule, 
 as to taxation of a solicitor's bill, is adopted in bankruptcy, by ana- 
 logy to the statute of the 2 Geo. 2, and applies to the bill taxed 
 by the commissioners : on re-taxation by the Master, being reduced 
 above the sixth, the solicitor has been ordered to pay the costs of 
 taxation.^ 
 
 Although, however, if the bill taxed be less by a sixth than the 
 bill delivered, the costs of taxation are not disposed of at the dis- 
 cretion of the Court ;® yet, if the deduction arise not by the 
 taxation of particular items of themselves liable to taxation, and 
 chargeable to the client, but is occasioned by the disallowance of the 
 whole of certain expenses stated in the bill, on the ground that the 
 client was not the person liable to those charges, and not because 
 they were objectionable in their nature or amount ; the courts of 
 law have held, that the attorney is not liable to the costs of taxation, 
 though a sixth part of the amount of the bill v.as taken off, the 
 statute being only applicable where the solicitor makes exorbitant 
 charges, and the foundation of the demand is not denied, but 
 merely the amount.'' And, recently, where the items in a solicitor's 
 
 1 2 Geo. 2. c. 23. s. 23. 
 
 2 Maugheu v. Graham, Sayer's Costs, 261 ; 2 Iluli's Costs, 515. 
 
 3 Higginsv.Wookott, 5B. &C. 760; s. enow. Dickens v. Woolcot, SD.& R. 589, 
 '* 2 Fowl. Exch. 464 ; Ramsden v. Hilton, Dick. 322. 
 
 5 Ex parte Westall, 3 Ves. & Bea. 141. 
 
 6 See Hindle v. Shackleton, 1 Taunt. 536 ; Barker v. the Bishop of London, 
 Barnes, 147 ; Hurst v. Dixon, id. 118; s. c. Pr. Reg. 36 ; s. c. Ca. Prac. "tS. 
 
 7 White V. Milner, 2 H. Bl. 3.57. 
 
 VOL. IT. L 
 
 k
 
 74 LAW TRACTS. NO. I. [CAP. III. 
 
 bill were charged to the plaintiff in respect of the defence of a third 
 person, at the plaintiff's request ; and the solicitor did not shew 
 that he was employed in such defence by the plaintiff, the items 
 were struck out, and the Vice Chancellor decided that such items 
 were to be computed amongst the deductions, for the purpose of de- 
 termining upon whom the costs were to fall ; but on the ground that 
 the statute was applicable only where the charges were exorbitant, 
 and the foundation of the demand not denied, but only the amount. 
 Lord Eldon, upon an appeal, followed the principle of the decisions 
 at law, and ordered the plaintiff to pay the solicitor the costs of tax- 
 ation, and the solicitor to pay the plaintiff^ the costs incurred by 
 introducing into the bill the costs of the action in question.' So if a 
 client, in the course of a cause, advance money to his attorney for 
 specific disbursements in the cause, those disbvu'sements must, 
 nevertheless, be included in the bill of costs. Where, therefore, a 
 sum was deducted upon taxation, less than one-sixth of the amount 
 of the bill delivered, including those disbursements, the Court of 
 Common Pleas ordered the client to pay the costs of the taxation.2 
 And on the same principle, if an attorney accept, in satisfaction of a 
 bill delivered, a less sum than what appears to be there charged, 
 and such bill is afterwards taxed, the attorney shall not pay the 
 costs of taxation, unless a sixth part of the sum received in satisfac- 
 tion of his original demand be deducted.^ 
 
 Where the attorney's bill, upon the final taxation, does not 
 appear to be less by a sixth part than the amount of the bill de- 
 livered, the Courts, in their discretion, it has been seen, may charge 
 the attorney or client, in regard to the reasonableness or exorbitance 
 of the bill. The courts of law have, however, been in general 
 governed by the words of the act, and accordingly the costs of tax- 
 ation have been always reciprocally given to the client, or attorney, 
 as a sixth part has or has not been taken off;'* and from a late de- 
 cision. Lord Eldon seems to have adopted the same rule.* But 
 although a solicitor is, in general, allowed the costs of taxation, if 
 the reduction of his bill be less than a sixth of the bill delivered ; 
 yet, in a case where the conduct of a solicitor in the Master's office 
 
 1 Rigby V. Edwards, 5 JMadd. 20. 
 
 2 Hindle v. Shackleton, 1 Taunt. 53G ; Ex parte Wood, 1 Buck. 129. 
 
 3 Ecollier v. Dutoure, Prac. Reg. 39. 
 
 4 Hurst V. Dixon, Ca. Pr. 78; Pr. Reg. 36; Barnes, 118. 
 
 6 Potch V. Rivett, Mss. cited in Turner & Venable's Chancery Practice, vol. i. 
 p. 8GG ; and see Yea v. Frere, 14 Ves. 154 ; Ex parte Westall, 3 Ves. & Bea. 141 ; 
 Ex parte Hatherway, 2 Madd. 329; Ex parte Wood, 1 Buck. 129.
 
 CAP. III.] RELATIVE TO ATTORNIES AND SOLICITORS. 75 
 
 (if not vexatious) was at least productive of unnecessary expense, he 
 was ordered to pay a certain portion of those costs.' 
 
 There is one case, which it is here necessary to notice, as illus- 
 trative of the power and control which, during the progress of this 
 Tract, it must have been observed, are possessed by the courts of 
 justice over their officers, practising as the legal representatives of 
 others. In that case," a crown solicitor was ordered to pay the costs 
 of taxation of his bill, it being reduced nearly one half, together 
 with interest upon a surplus balance remaining in his hands, which 
 he claimed to be due for fees and disbursements. The ground 
 upon which the Court proceeded was not expressly authorized by 
 the enactments of the legislature in the 2 Geo. 2 : in fact, they en- 
 tirely disclaimed any such inference. They asserted their authority 
 as completely dependant on the extent of the power which they 
 inherently possessed over the conduct of their officers ; and not as 
 derivable from the jurisdiction they exercised under the enactments 
 of the legislature. 
 
 It may be also taken as an undeniable proposition,^ that the costs 
 of taxation are not, under any circumstances, payable by the ex- 
 ecutors of an attorney."* 
 
 1 Yea V. Frere, 14 Ves. 154— and if the affidavit in support of the charges in the 
 bill be impertinent, the Court will refer it with costs, Phillips v. Phillips, 3 Atk. 
 391 ; Dawson v. Clark, 15 Ves. 416. 
 
 2 Rex V. Bach, 9 Price, 349 ; and see Wright v. Soutliwood, 1 Younge & Jer. 527. 
 
 3 Weston V. Pool, 2 Stra. 1056. 
 
 4 A few hints may be here appended as to the mode of obliging payment of the 
 costs of the taxation. In the Courts of King's Bench, or Common Pleas, such 
 payment may be enforced by attachment ; but previously to moving for the same, 
 a rule nisi must be obtained. In order to obtain such rule, the costs of such tax- 
 ation must be taxed, and the allocatur personally served and demanded : Lee's 
 Diet, of Prac. vol. i. p. 136. 2nd edition. Care should be always taken that the 
 attorney request payment of such costs, previously to his coming to any settle- 
 ment or arrangement with his client, independent of their existence, fe'ee Whit- 
 field V. James, i Bing. 20 '. 
 
 In the Court of Chancery, these costs are to be obtained by order as of course, 
 upon motion, or by petition to the Master of the Rolls. If the application be 
 upon motion, instructions must be given to counsel to move for the costs occa- 
 sioned by the taxation of A. B. the late solicitor's bill of fees, more than a sixth 
 part having been taxed off, and that it may be referred back to the IMaster to 
 tax such costs. See Cogan v. Cave, 1 Dick. 96. An office copy of the Master's 
 certificate of the taxation must be produced at the same time. If the application 
 be by petition, (which is the only course when the Court is not sitting,) a peti- 
 tion in the usual form must be engrossed, and left at the secretary's office in the 
 Rolls-yard, and a fee of 5s. 6d. paid when answered and taken away. The order 
 must be drawn up, passed and entered at the Register Office, as before directed,
 
 76 LAW TRACTS. SO. I. [cAP. IV. 
 
 CHAP. IV. 
 
 RKLATIVE TO THE DISABILITIES OF ATTORNIES AND SOLICITORS. 
 
 An attempt has been nov,- made to inquire into the rights and 
 privileges of attornies, and their chents. The subject of investiga- 
 tion which strikes most forcibly as inseparably connected with the 
 preceding remarks, is — what are the duties and liabilities which 
 those individuals, whose immunities have been just defined, incur, 
 and render themselves responsible to perform ? It has been, how- 
 ever, considered appropriate to give a cursory view of the disabilities 
 to which attornies and solicitors are subjected, to enable the reader 
 to obtain a more clear and comprehensive idea of the principles and 
 doctrines which are the subject of the ensuing chapter. 
 
 In a previous part* of this work, it will be remembered, that an 
 attorney's exemption from serving such offices a? would interfei'e 
 with a due and proper observance of the obligations he had to fulfil, 
 and a mature and deliberate attention to the interests of his clients 
 has been fully expounded. And it may be here mentioned, that it 
 is enacted by the 2 Geo. 2. c. 23. s. 15. that no attorney or solicitor 
 shall have more than two clerks who shall become bound to serve 
 him at one and the same time. 
 
 and taken to tlie Master's office, and the ])ill of costs occasioned by the taxation 
 must be left, and a warrant, " on leaving the bill of costs," taken out and served, 
 upon the solicitor ; and when that warrant is returnable, successive warrants to 
 tax must be taken out and served, until the whole bill is gone through and taxed ; 
 and when the bill is cast up, and the deductions made, the sums at which the costs 
 are taxed must be inserted in the Master's certificate, which is to be filed at the 
 Report Office. 
 
 The solicitor may ap; ly for the costs of taxation, by petition to the ]M aster of 
 the Rolls, as of course ; but if any oi)position should be expected, he must shew 
 to the Court, by affidavit, that his bill was reasonal)le and fair, as also that by the 
 i\laster's report, a sixth part of the bill has not been taken oflf. A notice, in 
 writing, of this motion must be given to the client, who may oppose the motion 
 by affidavit, setting out such parts of the bill as are extravagant, and shewing 
 that the bill generally is unreasonable; tlie Court, upon hearing both parties, 
 will exercise their discretion ; and if they make the order for allowing the soli- 
 citor his costs, occasioned by the taxation of his bill, the order must be drawn 
 up, passed and entered, and proceeded upon in the IMaster's office. See Turner & 
 Venable's Chancery Practice, vol. i. p. 865 and 8(57. For the amount of a petition- 
 ing creditor's costs, the solicitor's remedy is however by action, and not by peti- 
 tion : Er parte , Buck, 475 ; sed vide Ev parte Johnson, 1 Glyn & Jam. 23. 
 
 ' Vide ante, p. '34.
 
 CAP. IV.] RELATIVE TO ATTORNIES AND SOLICITORS. 77 
 
 Sect. 1. — As to becoming Bail and Lessees in Ejectment. 
 
 By rules made in the Courts of K.B. & C.P., it is ordered, " That 
 no attorney shall be bail in any action or suit depending therein," ' 
 which, by construction, have been extended to their clerks.^ This 
 salutary regulation, it is observed, in a valuable work on the Law of 
 Bail,^ was introduced for the protection of attornies against the im- 
 portunities of their clients. The ground of objection is so general, 
 that it applies to an attorney not concerned in the same cause."* The 
 rule is, however, confined to practising attornies ; for where one of 
 the proposed bail had not renewed his certificate for six years ante- 
 rior to the time of his becoming bail, he was considered competent.' 
 
 According to the practice of the Court of King's Bench, a cer- 
 tificated attorney may be put in as bail •/' and the plaintiff cannot 
 consider the bail as a nullity, and take an assignment of the bail 
 bond, but must enter an exception, and oppose him on the ground 
 
 1 But the sixty sworn clerks of the Six Clerks in Chancery do not come within 
 the operation of the rule which prohibits attornies from being bail : 2 Chit. Rep. 
 77- So, there is no rule in the Exchequer prohibiting attornies or their clerks 
 from becoming bail : Mann v. Nottage, 1 Y. & J. 367 ; R. M. 1654 ; R. M. 
 14 Geo. 2. Reg. 1. K.B.; R.T. 24 Ehz. s.8; R. M. 6 Geo. 2. Reg. 6. C.P.; 1 Chit. 
 Rep. 8. Nor can bail justify who are put in by an attorney : R. H. 37 Geo. 3, 
 C.P.; Greenside v. Hopley, 1 B. & P. 103 ; Wyllie v. Jones, 2 D. & R. 253; Thorp's 
 Bail, 1 Law Journ. K.B. 14 ; Capon v. Dillamore, 1 Bing. 423 ; s. c. 2 Law Journ. 
 C.P. 64 ; Preston v. Bindley, cited 1 Tidd, 269, 8th edit. ; — or who are to receive 
 a commission on the amount for which they are to justify: 7 D. & R. 783 ; — but 
 such bail are not within the rule that renders persons, once rejected, incompetent 
 
 to become bail in any subsequent action : v. Hullet, 1 D. & R. 488. And it 
 
 is no objection to bail, that they are indemnified by the sheriff's officer, or a third 
 person : 1 Chit. Rep. 714, n. ; 1 B. & P. 21 ; — or that they have become so merely 
 at the attorney's request : Hunt v Blaquiere, 4 Bing. 588. 
 
 2 Whether they be articled or not : Bologne v. Vautrin, Cowp. 826 ; Doug. 
 466, n.; Pickering u. Sedgwick, 1 Law Journ. K.B. 248; Laing v. Cundale, 1 H. 
 Bl. 76; Cakish V. Ross, 2 id. 349 ; Mason ?;. Caswell, 2 East, 181; Stoneham 
 V. Pink, 3 Price, 263 ; Fenton v. Ruggles, 1 B. & P. 356 ; — or not even in the 
 service of the defendant's attorney : Redit v. Broomhead, 2 B. & P. 56 1 ; Bozon 
 V. Falconer, 1824, Mss. ; 1 Arch. Pr. K.B. 112. But a clerk may be bail for bis 
 employer : Dixon v. Edwards, 2 Anstr. 3.56. And an attorney may always be bail 
 in criminal cases : Rex v. Bowes, in Hawkins v. Magnall, 2 Doug. 466, n. 
 
 3 Petersdorff's, 269. "* Anon. 1 Chit. Rep. 714. 
 
 5 Anon. 1 Chit, Rep. 714, n. See The King j;. the Sheriff of Surrey, 2 East, 
 182; Bell V. Gate, 1 Taunt. 162. 
 
 6 Anon. 1 Chit. Rep. 714; Thompson v. Roubell, 2 Doug. 467, n. ; and see 
 Harper r. Tahourdin, I Chit. 714, n. ; How v. Bridgwater, Barnes, 117.
 
 78 LAW TRACTS. NO. I. [CAP. IV. 
 
 of his incapacity, when he attends to justify,' though in the Common 
 Pleas a (liflTcrcnt rule of practice appears to prevail : in that court, it 
 is said the plaintiff' may treat such bail as a nullity,- even though 
 another person he afterwards added in his stead ;^ but in a recent 
 case, it was decided, that where the plaintiff excepts to added bail, 
 who thereupon justify without opposition, that Court will not set 
 aside the rule for the allowance of the bail."* And if added bail be 
 excepted to, on the ground, that the original bail were attorney's 
 clerks, the Court will give time to put in and justify fresh bail.^ And 
 in the Common Pleas, as well as in the Court of King's Bench, 
 an attorney may become bail j^^'O forma, in order to surrender the 
 defendant without justifying.*^ In one case," a conveyancer, en- 
 gaged in partnersliip with an attorney of the Court of King's Bench, 
 and sharing in the general profits of the business of the office, although 
 he did not practise as an attorney, was not allowed to justify. 
 
 An attorney's disability to be the lessee in an action of ejectment, 
 was created by a rule of court,*^ which ordered, " That for the pre- 
 vention of maintenance and brocage, no attorney should be lessee in 
 ejectment." 
 
 Sect. 2. — In Conducting Proceedings. 
 The incompetency of an attorney to conduct proceedings during 
 imprisonment, does not affect his suing for a debt of his own,^ or 
 continuing a suit commenced previous to his imprisonment. "* This 
 incapacity has been expressly created by act of parliament. But 
 as the statute is highly penal in its provisions, it has universally 
 received a strict interpretation. To render the construction which 
 tlie Courts have put upon the clauses of the statute more clear and 
 evident, it may be as well to notice the exact terms in which the 
 
 1 Rex v. the Sheriff of Surrey, 2 East, 181 ; Foxajl v. Bowerman. id. 182. 
 
 ^ Fenton v. Rufjgles, 1 B. & P. .356 ; Wallace v. Arrowsmith, 2 id. 49 ; AlHng- 
 liam V. Flower, id. 24G : Redit v. Broomhcad, id. 5G4 ; Jackson v. Hillas, cited in 
 1 Taunt. 162; Richie v. (Jilbert, 1 Taunt. 1G4, n. 
 
 3 Jackson v. Hillas, 1 Taunt. 162. 4 Bell v. Gate, 1 Taunt. 1G2. 
 
 s .3 Moore, 240. But in 1 Chit. Rep. 8. where one of the bail was an attorney, 
 the Bail Court refused time to add and justify another, — holding, that defendant 
 ought to have known that circumstance before notice was given. 
 
 •"■ Per Cur. M.T. 42 (ieo. 3. K.B., cited Tidd, 2/0, Jth edit. n. ; Bell v. Gate, 
 I Taunt. 163. See Richardson v. Murray, 2 Black. 1179; Pickering v. Sedgwick, 
 1 Law Journ. K.B. 248. 
 
 ' U.Yates, 1 D. & R. 9. 8 Reg. Gen. M.T. 1654, K.B. & C.P., 2 Doug. 466, n. 
 
 9 Kaye v. Denew, 7 T.R. 671 ; Prior v. Moore, 2 M. & S. 605. 
 
 ''' Whi'ctliam v. Needham, Barnes, 46.
 
 CAP. IV.] RELATIVE TO ATTORNIES AND SOLICITORS. 79 
 
 legislature have embodied this disability : the 12 Geo. 2. c. 13. s. 9. 
 enacts, " That from and after the 24th day of June, 1739, no attor- 
 ney, or solicitor, who shall be a prisoner in any gaol or prison, or 
 within the limits or rules or liberties of any gaol or prison, shall, 
 during his confinement in any gaol or prison, or within the limits, 
 rules, or liberties of any gaol or prison, in his own name, or in the 
 name of any other attorney or solicitor, sue out any writ or process, 
 or commence or prosecute any action or suit, in any courts of law or 
 equity; and that all proceedings in such actions or suits shall be 
 void, and of none effect : and such attorney or solicitor so commenc- 
 ing or prosecuting any action or suit as aforesaid, shall be struck off 
 the roll, and incapacitated from acting as an attorney or solicitor 
 for the future : and any attorney or solicitor permitting, or empower- 
 ing any such attorney or solicitor as afoi'esaid, to commence or prose- 
 cute any action or suit in his name, shall be struck off the roll, and 
 incapacitated from acting as an attorney or solicitor for the future." 
 But by the 10th section, it is provided — ''That nothing in this act 
 contained shall extend, or be construed to extend to prevent any 
 attorney, so confined as aforesaid, from carrying on or transacting 
 any suit or suits, ' commenced before the confinement' of such at- 
 torney or solicitor as aforesaid, anything in this act contained to 
 the contrary notwithstanding." 
 
 When, therefore, we advert to the nature of the punishment 
 inflicted by the act, the decisions of the Courts, both of law and 
 equity, will be readily allowed their authenticity. It has been decided, 
 that the statute relates only to the prosecuting, and does not affect 
 the defending of suits. i So in Ex imrte Thompson^- it was held, 
 that a solicitor was not restricted, by the words of this enactment, 
 from attesting a petition in bankruptcy whilst in prison, it being 
 neither a proceeding at law or in equity. 
 
 Anxious, however, as the Courts have been, and strongly as they 
 have manifested a disposition to confine this statute within a narrow 
 limit, they have not transgressed those bounds which the words of 
 the act itself have prescribed. They accordingly considered the 
 fact of an attorney entering a plaint, and suing out process in the 
 county court during the time of his imprisonment, as within the 
 meaning of the statute, and struck an attorney oflf the roll on that 
 eround.^ 
 
 1 Longman v. Rogers, Bames, 263 ; s. c. Willes, 288, n. 
 
 2 1 Glyn & Jam. 308. 
 
 3 In re Flint, 1 B. & C. 254 ; s. c. 2 D. & R. 406 ; s. c. 1 Law Journ. K. B. 1 1 1.
 
 80 LAW TRACTS. NO. I. [cAP. IV. 
 
 Sect. o. — To tahc the /iffidailts of their Clients. 
 
 A diversity at one time existed as to this practice on the opposite 
 sides of Westminster Hall. • The sound and Avholesome custom in 
 courts of common law was, however, at last introduced into courts 
 of equity; and by the present practice of all the courts, affidavits, 
 sworn before the attorney or solicitor in the cause,^ or his partner,"' 
 cannot be read. And this practice extends to affidavits taken before 
 attornies, as commissioners in causes wherein they are concerned for 
 the parties on whose behalf such depositions were made, except 
 where they are sworn for the purpose of holding the defendant to 
 special bail,"* or entering an appearance in the Court of Common 
 Pleas. ^ And that Court will discharge, with costs, a rule obtained 
 by a party on affidavits, which are sworn before the attorney in the 
 cause." So an information obtained upon affidavits sworn before 
 the attorney in the prosecution, was considered unavailable.'' So 
 rigorous are the Courts in adhering to this pi'actice, that where the 
 affidavits in support of a petition were sworn befoi'C the solicitor in 
 the cause. Lord Eldon dismissed the petition vvith costs as between 
 attorney and client, and committed the solicitor, but did not deprive 
 him of his office of Master Extraordinaiy, as his Loi'dship observed 
 in strict justice he ought to have done.^ 
 
 The above practice does not however apply, in the courts of 
 common law, to attorney's clerks.^ Courts of Equity seem, how- 
 ever, to consider such clerks as within the policy of the rule.^'^ 
 And it must, in all cases, be established, that the individual before 
 whom the affidavit has been sworn is the attorney, because there 
 may be another solicitor of the same name;^' and that the attorney 
 is the solicitor on the record. '- 
 
 1 Sec Smith v. Woodrofie, 6 Price, 231. 
 
 2 Rex V. Wallace, 3 T. R. 403 ; Jenkins v. Mason, 3 Moore, 325 ; Batt v. Vaisey, 
 1 Price, IIG; Reg. Gen. 9 id. 4/8; Hodgson v. Walker, Whitwick, 62; Ex parte 
 Brockhurst, 1 Rose, 14,5. 3 Batt v. Vaisey, 1 Price, 116. 
 
 4 R. E. 15 Geo. 2. reg. 2. K.B. ; R. E. 13 Geo. 2. C.P. 
 
 5 R. E. 13 Geo. 2. C. P. 6 Hopkinson v. Buckley, 8 Taunt. 74. 
 ' Rex V. the Gaoler of Ipswich, 2 Kenyon, 421. 
 
 8 Blake v. Bunbury, 1 Ves. jun. 194 ; Ilogan's case, 3 Atk. 813. 
 
 !' Goodtitle dem. Pye v. Badtitle, 8 T. R. 63S. 
 
 10 Cook V. Wilson, 4 Madd. 380. n Hodgson v. Walker, Wiglitwick, 62. 
 
 '2 Read v. Cooper, 5 Taunt. 89 ; s. c. recognised in Jenkins v. Mason, 3 Moore, 
 32.5 ; Williams v. Read, 8 Taunt. 435. An attachment will not be granted against 
 an attorney for taking an afiidavit in a cause in which he is acting as attorney for j 
 one of the parties : Dodd v. Adcock, Ca. Temp. Hardw. 211. |
 
 \ 
 
 CAP. IV.] RELATIVE TO ATTORNIES AND SOLICITORS. 81 
 
 Sect. 4. — To make Purchases, §c. from Clients. 
 
 With a view to prevent fraud, attornies are incapable of pur- 
 chasing their chent's estate, or of deriving a benefit from contracts 
 entered into betwixt them during the existence of the relationship 
 of attorney and client, if they have been consulted as to the mode 
 of sale ; or have, by their connexion with any other person, or by 
 being employed or concerned in his affairs, acquired a knowledge 
 of his property. For if persons, having a confidential character, 
 were permitted to avail themselves of any knowledge acquired in 
 that capacity, they might be induced to conceal their information, 
 and not to exercise it for the benefit of the persons relying on their 
 integrity. The characters are, in such a case, inconsistent. EmiJtor 
 emit quam minimo potest, vendor vendit quam maxima potest.^ 
 
 And where an attorney cannot purchase the estate himself, he 
 cannot buy it as agent for another ;2 and perhaps cannot even employ 
 a third person to contract or bid for the estate on the behalf of a 
 stranger.^ 
 
 This rule stands much more upon general principles than upon 
 the particular circumstances of any individual case. It rests, as Lord 
 Eldon observed, upon this — that the purchase is not permitted in 
 any case, however honest the circumstances ; the general interests of 
 justice requiring it to be destroyed in every instance, as no Court is 
 equal to the examination and ascertainment of the truth in the majo- 
 rity of cases.'* And the necessity of such a rule is evinced by an 
 instance mentioned by Lord Eldon, of a solicitor under a commis- 
 sion, who, finding he could make a bargain to sell an estate for 
 1,400/., kept that in his own breast, and made a bargain with the 
 assignees for the purchase of it, at 350/.° 
 
 Sect. 5. — To take more than Two Articled Clerks. 
 The fifteenth section of the statute 2 Geo. 2. c. 23. s. 15. pro- 
 hibits any attorney or soHcitor from having more than two clerks at 
 one and the same time, who shall become bound by contract in 
 writing to serve him as clerks. 
 
 1 See Ex parte Hughes, 6 Ves. jun. G17 ; Coles v. Trecothick, 9 id. 234; s. c. 
 
 1 Smith's Rep. 233 ; 8 Bro. P. C. 63 ; Hall v. Hallett, 1 Cox, 134 ; Kenny v. Bro^v^le, 
 3 Ridgw. P. C. 462; Bellew t;. Russel, 1 Ball & Beatty, 104; Clarke v. Swaile, 
 
 2 Eden, 134 ; Harris v. Tremenheere, 15 Ves. 34 ; Gibson v. Jeyes, G Ves. 266 ; 
 Williams V. Llewellyn, 2 Younge & Jer. 68; Wood v. Downcs, 18 Ves. jun. 120; 
 Paine t;. Hall, ibid, 475; IVIontesquieu u. Sandys, ibid, 304. 
 
 2 See JEr parte Bennett, 10 Ves. jun. 381. •' Ibid. 
 4 Ex parte James, 8 Ves. jun. 345. '^ Ibid, 349. 
 
 VOL. II. , M
 
 82 LAW TRACTS. NO I. [CAP. V. 
 
 CHAP. V. 
 
 RELATIVE TO THE DUTIES AKD LIABILITIES OF ATTORNIES AND SOLI- 
 CITORS, AND THEIR CLIENTS. 
 
 Sect. 1. — Duties and Liabilities of Atiornies and Solicitors. 
 
 1st. Of their Duties. 1. To the Cot^r/.— The duties of attornies 
 to the Court consist in a due and faithful observance of those rules 
 which have been introduced, chiefly with a view to the benefit 
 of the suitor. As officers of the court, it is also the more imperative 
 upon them to pay the strictest attention to the different modes of 
 procedure established in the various tribunals, and with prompt 
 solicitude to observe the ordinances of the court. In accordance 
 with such general principles, they must attend the different 
 tribunals, when called upon, by motion, petition, or otherwise, to 
 appear before the Court. ^ When summoned before the Judges, 
 they must also be punctual in complying with the requisitions of 
 such intimation.^ So when an appointment has been made for their 
 attendance before the Master, they must sedulously discharge the 
 functions that necessarily devolve upon them.^ And in fine, the 
 attorney must beware to avoid any abuse of the process of the 
 court,"* and cautiously abstain fi'om the commission of any act which 
 may have a tendency to deceive or mislead the Judges ; ^ still less will 
 any conduct be overlooked which may be in the slightest degree 
 indicative of fraudulent and vexatious motives.^ 
 
 2. To the Client. — It is proposed, under this division, to examine 
 the duty of attornies towards their clients, and to point out the 
 abstract principles which ought to actuate their conduct as affecting 
 such relationship ; to shew the nature of the knowledge and skill, 
 
 1 R. E. 1G56 ; R. E. 14 Car. 2. 
 
 2 R. H. 11 Geo. 1 ; and see 1 Geo. 4. c. 55. s. 5. 
 
 <* R. H. 15 Car. 2. And in the King's Bench they must attend the first appoint- 
 ment, without waiting for a second ; or, in default thereof, the Master shall proceed, 
 ex parte, on the first appointment : R. H. 32 Geo. 3 ; 4 T. R. 580. 
 
 4 See 1 Com. Dig. G28; 11 Co. 44, a. R.; Mod. Ca. 43. 
 
 5 3 Ed. 1.0.29; 2 Inst. 215, 224; Dyer, 249; Mod. 16; Hoh. 9 ; Jerome's case, 
 Cro. Car. 74. « Saville, 31.
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. 83 
 
 care, diligence, and integrity, that should characterize their pro- 
 ceedings. 
 
 The degree of knowledge and care which is requisite, cannot 
 be perhaps better delineated than in the words of that great lawyer 
 and jurist, Lord Mansfield — " That part of the profession which 
 is carried on by the attornies is liberal and reputable, as w'ell as 
 useful to the public, where they conduct themselves with honour and 
 integrity ; and they ought to be protected where they act to the 
 best of their skill and knowledge : but every man is liable to error." 
 And his Lordship added, that " he should be very sorry that it 
 should be taken for granted, that an attorney was answerable for 
 every error or mistake, and liable to be punished for it, by being 
 charged with the debt sued for. A counsel may mistake as well as 
 an attorney ; yet no one will say that a counsel, who has been mis- 
 taken, shall be charged with the debt. The advice of a counsel is, 
 indeed, honorary, and he does not demand a fee for it : the attorney 
 may demand a compensation ; but neither of them ought to be 
 charged with the debt for a mistake. Not only counsel, but judges 
 differ, or doubt, or take time to consider : therefore, an attorney 
 ought not to be liable, in cases of reasonable doubt." ^ 
 
 In ordinary cases, however, if an attorney be deficient in skill or 
 care, in consequence of which a loss accrues to his client, he is liable 
 to a special action on the case for damages.^ From a perusal of 
 those instances, which will be hereafter pointed out when examining 
 the liability of attornies for supineness, or inattention, an opportunity 
 of applying these general principles to the facts which have occa- 
 sionally occupied the attention of the Courts, will be aflforded. 
 
 It may be in this place considered no illogical digression, to 
 ascertain what protection the opinion of a barrister, special pleader, 
 or conveyancer, will afford to attornies under circumstances which 
 would, in the absence of their having taken such precaution, render 
 them amenable to their employers. On this point it may be assumed, 
 as a general rule, that no opinion of a barrister, or chamber counsel, 
 will relieve an attorney from the consequences of a mistake arising from 
 gross ignorance and stupidity, from his liability to the client, — for in- 
 stance, from a loss occasioned by an omission to declare against the 
 defendant, or charge him in execution in due time. But where an un- 
 certainty exists in the attorney's mind as to an abstract principle of law, 
 and still more where a doubt arises as to a point of practice, it would be 
 
 1 Pitt V. Yalden, 4 Burr. 2061 ; and see Reece v. Righy, 4 B. & A. 202. 
 
 2 Russel V. Palmer, 2 Wils. 325.
 
 84 LAW TKACTS. NO. I. [CAP. V. 
 
 in all cases advisable that he should avail himself of the advice of 
 others. In the latter case, were an action ever instituted against 
 him, it would be a very strong circumstance to be put to the jury ; 
 and the best evidence that could be adduced to prove to them that 
 the attorney had exercised all that care, circumspection, and vigi- 
 lance, which could be expected. In the former instance, although 
 it has been seen that an attorney would not be responsible for the 
 consequences of a mistake in a case of reasonable doubt, although he 
 might act independently of the aid of counsel, yet such precaution 
 would, in a great measure, lead to the belief that another quality 
 that an attorney ought to possess was not wanting — that of integrity 
 and upright conduct, into which it will be now our purpose to 
 inquire. 
 
 The principles of integrity, honesty, faith, and upright deahng, 
 ought at all times to actuate the proceedings of an attorney. 
 In every particular, he ought to adopt such a line of conduct 
 as he would probably pursue were his own individual interest in- 
 volved in the question. He should guard against any unneces- 
 sary litigation, and be rigidly attentive to the avoidance of useless 
 expense. He should carefully abstain from permitting his client 
 to continue an adverse course to his opponent, if convinced of the 
 inefficacy of its adoption. Still more imperative upon him is it to 
 induce hii, client to desist from endeavouring to enforce a claim which 
 justice would not countenance. Nay, he ought, in such a case, 
 not only to dissuade his employer — he ought, if fully convinced that 
 his opponent proceeds both upon legal and equitable grounds, to 
 refuse to go on any further with the cause he may have in hand. 
 It may, indeed, so happen, that the real justice of the case cannot 
 be made apparent until established by the testimony that may be 
 brought forward at the trial. In such an instance, the attorney's 
 duty consists, when surmises may exist, not in an implicit belief in 
 his employer's representations, but in a full exercise of his judgment 
 upon the probable truth of the evidence offered. 
 
 The utmost secrecy is also enjoined as an essential ingredient in 
 the character of an attorney. On no consideration whatever ought 
 he to violate that confidence which is reposed in him ; and it will be 
 remembered,' that in cases where he may be even inclined to betray 
 the trust reposed in him, the Courts will interfere to prevent such 
 a violation of his client's interests. The least gratuitous information 
 should be withheld, and the most cautious reserve adopted. 
 
 ' Antt. p. oO.
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. 85 
 
 It is with a view of ensuring a strict adherence to these prin- 
 ciples, that it is presumed Lord Eldon intimated, that a general 
 rule of court restraining the solicitor of one party from becoming 
 the solicitor of his adversary without his consent,' would be extremely 
 beneficial. And his Lordship, in a subsequent case,^ with the 
 advice and assistance of all the Judges, the Master of the Rolls, and 
 Vice Chancellor, restrained by injunction an attorney who had been 
 jointly employed by a party in a cause, from becoming the attorney 
 of the opposite party in the suit. So Lord Giflford recently ex- 
 pressed a similar opinion upon a solicitor acting as such for parties with 
 conflicting interests. 3 And the same rule prevails in courts of law.'* 
 
 2ndly. Of their Liabilities. 1 . Direct Liabilities, a. To Penal- 
 ties. — The legislature have frequently imposed penalties upon attor- 
 nies for the non-adhei-ence to those forms and qualifications which 
 they have deemed it expedient to render necessary. These consist 
 in penalties incurred in consequence of the attorney's practising 
 without being admitted and enrolled ; without taking out, and enter- 
 ing* his certificate ; or being afterwards guilty of such other mis- 
 conduct as has been specifically pointed out in the various acts of 
 parliament.^ 
 
 1 Dyott V. Anderton, 3 Ves. & Bea. 177- Under the following circumstances, how- 
 ever, a solicitor for all the defendants was allowed to act for some against the othera. 
 All attorney who had appeared for parties, defendants in a suit in Chancery, acted 
 in a cause by bill filed by some of those defendants, on behalf of themselves 
 against others of them ; the solicitor making affidavit that he was not possessed of 
 any secrets which might be used to the prejudice of such other defendants, or 
 knowledge of any facts unknown to his clients : Robinson v. Mullett, 4 Price, 353. 
 
 ^ Earl Cholmondeley v. Lord Clinton, Coop. 80; s. c. ]9 Ves. 261. 
 
 3 Smith V. Starkie, 1824, Mss. cited 1 Turner & Venables, Ch. Prac. 878. 
 
 4 Berry v. Jenkins, 3 Bing. 423 ; s. c. 4 Law Journ. C. P. 126. 
 
 6 See Nixon v. Hewitt, 10 Moore, 270; s. c. 3 Law Journ. C. P. 125, where an 
 attorney's certificate, having been by his agent's mistake filed in the Comt of 
 King's Bench instead of the Court of Common Pleas, in the former of which 
 courts he had not been admitted, was considered insuflicient. 
 
 fi See 2 Geo. 2. c. 23. s. 24. where the penalty of 60/. is imposed upon any 
 person conducting proceedings at law or in equity, in his own name, or the name 
 of any other person, without being admitted and enrolled, to the use of such person 
 as should prosecute him for the said offence. 
 
 By the 12 Geo. 2. c. 13. s. 7. any person conducting proceedings in the county 
 court, holden in any county in that part of Great Britain called lilngland, not 
 legally admitted an attorney according to the preceding act, forfeits the sum of 20/., 
 to be recovered with costs. 
 
 By the 22 Geo. 2. c. 46. s. 12. no person can carry on any proceedings at any 
 general or quarter sessions of the peace, for any county, riding, division, city 
 town tc^rpurate, or other place within ilii.= kingdom, unlebs duly admitted and
 
 86 LAW TRACTS. NO. I. [cAP. V. 
 
 b. For Champerty and Maintenance.^ — The liability of attornies 
 for charges of this nature has been introduced in this work, as it is 
 an offence to which they are peculiarly exposed ; and as the profes- 
 sional relationship which exists between them and their clients, is 
 frequently relied upon as a justification when they are charged with 
 such offences. 
 
 Maintenance is defined in the books as signifying " an unlawful 
 taking in hand or upholding of quarrels or sides, to the disturbance 
 or hindrance of common right." This may be occasioned by one 
 
 enrolled an attorney of one of his Majesty's courts of record at Westminster ; or 
 unless such person should thereafter be admitted an attorney and enrolled as 
 aforesaid, under a penalty of 60/. A similar penalty is enforced on any attorney 
 permitting an unqualified person to act in his name. A proviso was added, 
 that nothing in the act should extend to deprive the attornies of the Duchy 
 of Lancaster, or of the courts of Great Sessions in Wales, or of the counties 
 palatine of Chester, Lancaster, and Durham, from acting within their respec- 
 tive jurisdictions. By section 14. no clerk of the peace, or his deputy, 
 nor any under sheriff", or his deputy, shall act as a solicitor, attorney, or 
 agent, to sue out any process at any general or quarter sessions of the peace to 
 be held for such county, riding, division, city, town corporate, or other place 
 within this kingdom, where he shall execute the ofBce of clerk of the peace, or 
 deputy clerk of the peace, under sheriff or deputy, on any pretence whatsoever ; 
 but if any clerk of the peace, &c. shall presume to act as solicitor, attorney, or 
 agent, as aforesaid, he shall be subject and liable to a penalty of 50/., to be re- 
 covered in manner aforesaid. Where a false or fictitious name, or place of resi- 
 dence, is given at the time of obtaining the annual licence or certificate, the party 
 is liable to a penalty of 50/., and is incapable of recovering for his fees or dis- 
 bursements : 25 Geo. 3. c. 80. This act does not, however, extend to the Sheriff's 
 Court, though an attorney prosecute a suit there by virtue of a writ of justicics, 
 for more than 40s. : Cross v. Kaye, 6 T. R. 663. The same penalty and disability 
 are also imposed for acting without a certificate : 25 Geo. 3. c. 80. ; or, without 
 having duly entered it : 37 Geo. 3. c. 90. s. 26. 
 
 ' By the Common Law, all unlawful maintainere are not only liable to render 
 damages in an action at the suit of the party grieved, but may als?o be indicted 
 and fined, and imprisoned, &c. ; and it seems tliat a Court of Record may commit 
 a man for an act of maintenance in the face of the Court : 2 Roll. Abr. 1 14 ; 2 Inst. 
 208 ; Hetl. 79 ; 1 Hawk. P. C. c. 83. s. 38 ; 4 Bac. Abr. Maintenance (C) p. 482. 
 Some pains and penalties are also attached to this offence by stat. The 1 Rich. 2. 
 c. 4. enacts, that "no person whatsoever shall take or sustain any quarrel by 
 maintenance in the country or elsewhere, on grievous pain : that is to say, the 
 King's Counsellors and great officers, on a pain that shall be so ordained by the 
 King himself, by the advice of the lords of this realm; and other officers of the 
 King, on pain to lose their offices, and to be imprisoned and ransomed, &c. ; and 
 all other persons, on pain of imprisonment and ransom." And by the 32 Hen. 8. 
 c. 9. maintenance is subjected to a forfeitui'e of 10/., one moiety to the King, 
 and the other moiety to the infonner : see 1 Hawk. P. C. c. 83. s. 40. et seq.
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. 87 
 
 person assisting another in his pretensions to lands, by taking or 
 holding the possession of them by force or subtilty; or where a 
 person foments discords, or creates disputes and litigation, in rela- 
 tion to matters in which he has no personal interest;' or it may be 
 committed by a person officiously intermeddling in a suit depending 
 in a court of justice, and in no respect appertaining to him, by 
 assisting either party with money, or otherwise m the prosecution 
 or defence of such suit.^ Where there is no contract to have part 
 of the subject matter in dispute, the individual so intermeddhng is 
 said to be guilty of maintenance, generally ; but if the party sti- 
 pulate for this species of remuneration, his offence is denominated 
 champerty.^ 
 
 An attorney, when specially retained, may lawfully prosecute or 
 defend an action, and lay out his own money in the suit ; but an 
 attorney who maintains another, is not justified by a general retainer 
 to prosecute for him in all causes. Nor can an attorney lawfully 
 carry on a cause for another at his own expense, with a promise 
 never to expect repayment ; and it is said to be questionable whether 
 solicitors, who are no attornies, can, in any case, lawfully lay out 
 their own money in another's case."* 
 
 But no attorney can justify using any deceitful practice in main- 
 tenance of a client's cause ; and he will be liable to be punished for 
 misdemeanors in this respect by the common law, and also by the 
 statute Westminster 1. c. 29.*^ In the construction of this statute it 
 has been holden, that all fraud and falsehood, tending to impose 
 upon or abuse the justice of the King's courts, are within the pur- 
 view of it; as if an attorney sue out an habere facias seisinam, falsely 
 reciting a recovery where there was none, and by colour thereof put 
 the supposed tenant in the action out of his freehold.^ Also it is 
 an offence within the statute to bring a praecipe against a poor man 
 having nothing in the land, on purpose to cast the true tenant ; or 
 
 1 Co. Litt. 368, b. J 2 Inst. 208, 212, 213 ; 1 Hawk. P. C. c. 83. s. 1, 2 ; 4 Bac. 
 
 Abr. 488. 
 
 2 1 Hawk. P.C. c. 83. s. 3-4; Bac. Abr. 488, Maintenance; 4 Bl. Com. 134. 
 
 3 It is said that an attorney ought not to prosecute an action to be paid in gi'oss, 
 for that woiild be champerty, Hob. 117 ; Co. Litt. 368 ; 1 Hawk. P.C. c. 83. s. 3. 
 But a gift of land in suit, after the termination of the proceedings, to an attorney, 
 in lieu of his fee, without any kind of precedent bargain relating to such gift, 
 is not within the meaning of the statute : Hawk. P.C. 258. 
 
 4 2 Inst. 564; 4 Bac. Abr, 491-492, Maintenance, (B) 5; 1 Hawk. P.C- c. 83, 
 s. 28, 29, 30. 
 
 5 2 Inst. 215, 4 Bac. Abr. 49], Maintenance, B. 5. 
 
 6 2 Inst. 255.
 
 88 I'AW TUACTS. NO, I. [CAP. V. 
 
 to procure an attorney to appear for a man, and confess a judgment 
 without any warrant ; or to plead a false plea, known to be utterly 
 groundless, and invented merely to delay justice, and to abuse the 
 Court. ^ In most of these cases the Court would probably grant an 
 attachment against the offender on motion.' 
 
 The following question was recently submitted to Mr. Petersdorff 
 for his opinion : — Whether an attorney, accepting the appointment 
 of solicitor to a society formed of an unhmited number of individuals 
 to subscribe a certain annual sum as a guarantee fund against costs 
 incurred in consequence of actions brought by any of the subscribers, 
 for the recovery of debts due to them individually, became liable to 
 any penalties as connected with the laws of maintenance? Mr. Peters- 
 dorff was clearly of opinion, that, although such an association would 
 subject the contributors to the punishment inflicted on persons guilty 
 of maintenance, yet that no liability would ensue to the attorney from 
 accepting such an office. 
 
 c. To Clients, — The liability that an attorney incurs, in con- 
 sequence of negligence, or want of skill, is a most important and 
 interesting inquiry. It would however appear, that it is not every 
 species of negligence that would subject an attorney to an action in 
 this respect. Errors of a mere practical nature, or gross inatten- 
 tion, will, for instance, render him answerable to the party injured. 
 But mistakes of a theoretical cast, and which others, similarly situ- 
 ated, might have committed without any imputation on their cha- 
 racters for undertaking what they were by no means adapted to 
 fulfil, cannot be made the ground of an action at law. Thus, where 
 an attorney neglected to charge a defendant (a prisoner) in execution 
 within the time allowed by the practice of the Court, by reason of 
 which neglect the defendant was superseded, it was holden,3 that 
 the action was maintainable against the attorney, for negligence ; 
 but that as it sounded in damages, it was competent to the jury to 
 find what damages they thought fit ; and that they were not re- 
 strained to find the amount of the whole debt, in a case where it 
 appeared that the debtor was not totally insolvent, and that the 
 creditor might probably in time obtain some part of his debt, by 
 execution against his goods. So an attorney was held liable under 
 the following circumstances. He had been employed to transact a 
 loan upon the security of a legacy, of which an extract was furnished 
 him by his client ; but it did not contain a subsequent clause, direct- 
 
 • 2 Inst. 215; Dy. 362; 1 Hawk. P. C. cfSS. s. 33. et seg. 
 
 - 4 Bac. Abr. 492. ]Maintenance in the margin. 
 
 ^ Russel V. Palmer, 2 Wils. 325. See Pitt v. Yalflen, 4 Burr. 2060.
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. 89 
 
 ing the legacy to be void in case of any assignment by the legatee. 
 The existence of this clause was not discovered until after the com- 
 pletion of the transaction. The Judge, in his address to the jury, 
 who were impanneled to try an action instituted against the attorney's 
 executor for negligence, observed, that "by law, it was the duty of 
 the testator, as the attorney employed by the plaintiff, to have ex- 
 amined the whole of the will, unless anything was said by his 
 employer which could fairly lead him to think that such a precaution 
 was unnecessary. If the plaintiff (continued his Lordship) really 
 charged him to examine the will, then he was clearly guilty of 
 negligence in having omitted to do so. If, on the contrary, the 
 plaintiff told him that he knew the will was sufficient, and the secu- 
 rity good, his vigilance might naturally be relaxed, and his liability 
 in consequence removed."' 
 
 From this last case, it may be therefore assumed, as a general 
 proposition, that although an attorney might be exonerated where 
 lulled into security by his client's representations, yet there must 
 be strong facts to absolve him from those duties which it is the very 
 object of his employer to secure. And even in the case oi Reece v. 
 Righi/,'^ where the client himself undertook to procure the atten- 
 dance of a material witness in a cause, it was considered that it was 
 still the duty of the attorney not to suffer the cause to be called on, 
 unless he had ascertained that all the witnesses were present ; and 
 that it was properly left to the jury to determine whether he had 
 used reasonable care or not.^ 
 
 So it seems to be the business of the solicitor for a private act of 
 parliament, to take care that the standing orders of the House of 
 Commons be complied with."* So the Court thought, that under the 
 following circumstances, there was sufficient evidence to warrant a 
 verdict against an attorney for negligence. He had been employed 
 by the vendee of an estate, and in that capacity received an abstract 
 of the vendor's title, containing sixty-five sheets. He assumed that 
 a party named in it had an estate in fee, and then laid a part of that 
 
 r 
 
 1 Wilson V. Tucker, 3 Starkie, 154 ; s. c. 1 D. & R. N.P.C. 30. 
 
 2 4 B. & A. 202. 
 
 3 See Price v. BuUen, 3 Law Journ. K. B. p. 39, in whicli case the father of a 
 party to a cause was a material witness. The attorney did not serve him with a 
 subpoena ; but he was told that he must attend the trial on the following day. 
 The verdict was .lost, in consequence of his non-attendance. The Court held, that 
 the attorney had not been guilty of such negligence, as that an action would lie 
 against him. 
 
 4 Taylor v. Higgins, 1 Law Journ. K.B. 1[>. 
 
 VOL. II. N
 
 90 LAW TUACT.s, NO. I. [cAP. V. 
 
 abstract, containing eight sheets, before a conveyancer, who advised 
 that the \cndor could make a good title. It appeared that that 
 party was net seised in fee, in consequence of a person, who was only 
 an equitable tenant in tail, having suffered a recovery without the 
 concurrence of the legal tenant for hfe. This would have appeared 
 to the counsel, had the deeds connected with the transaction been 
 laid seriatim before him. The attorney's omission was viewed as 
 amountina to ncfflisrence.' He should have taken care to have 
 stated the whole of the deeds to the counsel whom he consulted ; 
 for although it is not part of his duty, nor does the law, in any case, 
 throw the onerous task upon him of knowing the legal operation of 
 conveyances, it is, in all cases, incumbent upon him not to draw 
 erroneous conclusions from papers laid before him ; and, in such in- 
 stances, no more than just, that if he assumes the power of doing 
 so, he should, to use the expression of Mr. Justice Bayley, " draw 
 conclusions at his peril. "^ 
 
 An attorney, it may be here remarked, should be, in all cases, 
 cautious what mode he adopts of securing his client's money wdiich 
 may have come into his hands. The necessity of this attention will 
 become very apparent when the following case is perused. A soli- 
 citor paid the sum of 5,300/. in the identical notes he had received, 
 together with another sum of money, into the banking-house of 
 Messrs. Marsh and Company, directing it to be placed to his own 
 private account. The house shortly afterwards stopped payment ; 
 and the attorney was held bound to refund the whole amount to his 
 client.'^ The Judge regretted the hardship of the case, inasmuch 
 as not the slightest suspicion attached to the solicitor ; but observed, 
 that the rule of law was irrefragable ; and that if a person mixed up 
 money, which he had received in the manner the defendant had, 
 with his own, he made himself debtor to the estate out of which the 
 money arose. 
 
 The attorney's money ought to have been paid in in the attorney's 
 own name ; and at the same time a separate account should have been 
 opened, specifying on what account the money had been deposited. ^ 
 
 1 Ireson v. Pearman, 3 B. & C. 799 ; s. c. 5 D. & R. G87 ; 3 Law J. K. B. 119. 
 
 2 So in V. JoUand, 8 \'es. 72. it was held, that a receiver who did 
 
 not pass his accounts, would be liable to i)ay interest. Lord Eldon observed, 
 that it v/ould be a question how far the solicitor Jhr the estate was liable, whose 
 bounden duty it was to oblige the receiver to pass his account and pay the ba- 
 lance ; and by whose negligence it must be occasioned. 
 
 3 Robinson v. Ward, 1 Ryan & Moody, 274. 
 
 ^ Thus, if the money had been paid into the house of Marsh & Co., in the de-
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. 91 
 
 But although an attorney has been considered responsible in 
 those instances which have just been enumerated, it will be found that 
 the general statement as to a solicitor's culpability made at the com- 
 mencement of this division, is borne out by the ensuing cases ; and 
 that an attorney is only bound to exercise i-easonable care and skill. 
 In one instance/ an action was unsuccessfully instituted against an 
 attorney for negligence, in not discovering a defect in the memorial 
 of an annuity, which was subsequently holden to be a defect, upon 
 a doubtful construction of a statute. So upon the same ground 
 it was decided, in the case of Laidler v. Elliotti^ that an attorney 
 cannot be sued in an action for negligence in misconstruing an 
 obscure rule of covu't, involving a nice point of practice. 
 
 Although, therefore, the law implies a promise, on the part of 
 attornies, that they will execute the business intrusted to their pro- 
 fessional management with a reasonable degree of care, skill, and 
 dispatch ; there must be lata culpa, or crassa negligentia, a gross 
 negligence or ignorance, to render them liable to an action. In fine, 
 that if the attorney act to the best of his skill, and with a bond Jide, 
 and moderate degree of attention, he will not be responsible. 
 
 It will be seen, in a subsequent part of this treatise,^ that the 
 remedy by action is not the only safe-guard which a client possesses 
 to enforce a due and cautious observance on the part of the attorney 
 to his employer's interests ; but that in cases of gross negligence or 
 unskilfulness, and especially if there be the remotest trace of fraud, 
 
 fendant's name, but on account of J\Jr. Robinson's estate, this, in the words of Lord 
 Hardwicke, would have "ear-marked it;" and the money, in the case of the 
 death of the defendant, would have been forthcoming : see Knight v. Lord Ply- 
 mouth, 3 Atk. 480 ; Rowth v. Stowell, 3 Ves. 656 ; Adams v. Claxton, 6 Ves. 226. 
 
 It appeared that IMr. Ward had, in the case alluded to above, kept the money in 
 his own house for some period, until he began to dread the risk of keeping so 
 large a sum in his own possession. It may be therefore useful to notice the lia- 
 bility he would have incurred had he continued to keep it in his own house, and 
 it had been taken by stealth, or wrested from him by force. 
 
 An attorney who receives the money or goods of his client, would be answer- 
 able for any loss happening through his negligence, or want of ordinary diligence. 
 Generally speaking, a loss by stealth would be evidence of want of ordinary dili- 
 gence ; whereas, a loss by robbery, unless occasioned by the bailee's needlessly 
 riskuig the property, would furnish no such inference : Jones on Bailments, -44, 
 66, 68, 76 ; Abbot on Shipping, 234, n. (I); 12 Ves. 240 ; 2 Lord Raymond 914 ; 
 I Esp. 315 ; and Petersdorfi"'s Abridgment of the Common Law Reports, tit. 
 " Bailment." 
 
 1 Baikie v. Chandless, 3 Campb. 1 7 ; see Aitchcson v. Madock, Peake, N.P.C. 162. 
 
 2 3 B. & C. 738 ; s. c. 5 D. & R. 635 ; s. c. 3 Law Journ. K. B. 96. 
 8 Post, 96.
 
 92 LAW TRACTS. NO I. [CAP. V. 
 
 the Courts uill interfere in a summary manner, and not leave the 
 chent to the delay that must be necessarily entailed upon him by the 
 institution of legal proceedings. 
 
 d. To third parties, i. For malpractice. — In the last subdivision, 
 we have only inquired into the liability that an attorney incui's as 
 betwixt himself and his immediate employer, for neglect, misconduct, 
 or unskilfulness. Owing to mal-practice, or improper behaviour, an 
 attorney may, however, occasion damage, and be the cause of loss 
 to third parties, who, although they have never entered into any 
 express contract with him that he shall demean himself properly, 
 have nevertheless a right to revert to the terms of his original admis- 
 sion as an officer of the courts of justice, and sue him for the con- 
 sequences accruing from any deviation from the line of conduct that 
 had been then prescribed, or abandonment of the character he 
 had assumed. They may ground an action on the implied obliga- 
 tion that in his professional pursuits he will not only guard those 
 interests which he has expressly engaged to protect, but that no act 
 of his arising from a dereliction of duty shall enure to the detriment 
 of others. The nature and extent of an attorney's liability in this 
 respect will form the subject of the present investigation. 
 
 In the case o^ Bates v. Pilling ^'^ an attorney, at the instance of a 
 creditor, sued out process against a debtor in the county court ; 
 the attorney's agent, after payment of the debt and costs, but in 
 ignorance of such fact, signed judgment, and sued out execution, 
 and levied upon the debtor's goods. Although he had never ap- 
 peared under these circumstances, an action of trespass was instituted 
 against the creditor and his attorney, both of whom the Court held 
 were clearly responsible. A similar action was successfully brought, 
 both against an attorney and his client, for issuing an illegal writ of 
 capias ad satisfaciendum against a defendant, and causing him to 
 be imprisoned, in comphance with its requisitions.'^ So, where a 
 suit had been non-prossed, and the costs assessed, and the attorney, 
 with full knonvledge of this, had unduly and maliciously procured 
 judgment to be signed, and execution taken out, — a verdict was re- 
 corded against the attorney in an action which had been commenced 
 by the party who had been imprisoned in consequence of the writ 
 of execution, until delivered by supersedeas.^ 
 
 All the other cases of a similar nature which have occupied the 
 attention of the Court, connected with this subject, have uniformly 
 
 1 9 D. & R. 44. ~ 
 
 ^ Barker v. Braham, 3 Wils. 368 ; s. c. 2 Bl. Rep. 866. 
 
 * Knight V. Copping, Hutt. 135.
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. 93 
 
 received the same construction : — As, if the attorney sign judgment 
 before the expiration of the usual rule for such purpose, so as to 
 deprive the defendant of his power to move in arrest of judgment, 
 a jury will be directed to award damages against him in con- 
 sequence of such mal-practice. I So, if he sue out an habere facias 
 seisinam, or other execution, against a party, when there is no re^ 
 covery apparent on the records of the Court to justify such pro- 
 ceedings, a verdict will be recorded against him.^ So where an 
 attorney knows a case to be out of the jurisdiction of the tribunal in 
 which the action is instituted ; or in any other instance exceeds the 
 bounds and limits of his duty as an attorney ; he becomes liable as a 
 trespasser.^ And in conjunction with these considerations, it must 
 be always recollected that the circumstance of an attorney having 
 been previously visited with punishment, either through the inter- 
 position of the Court, or by other means, will not debar the indi- 
 vidual from having recourse to an action for the injury he may have 
 sustained.'* 
 
 But although if an attorney is guilty of any dishonest practice, or 
 unwarrantable proceedings, he subjects himself to an action at the 
 suit of the party grieved ; he will be released from any responsibility 
 provided he acts bond fide, and in strict consonance with the dic- 
 tates of honesty — although an injury result from the attorney's 
 management of the proceedings. Thus, where a party deposited 
 money in the hands of his attorney to invest for him, giving the 
 attorney an unlimited direction to do what was best and most expe- 
 dient : the attorney advanced the money, on mortgage ; but discover- 
 ing that the security was insufficient, sued out a bailable writ in his 
 client's name against the borrower for the amount without his 
 client's knowledge, the Court absolved the solicitor from any lia- 
 biUty, for arresting the borrower without his client's authority, 
 it being distinctly established that the attorney acted bond 
 fideJ' So, where an action for the offence of slander was 
 brought against the defendant under the following circumstances ; 
 although a verdict was awarded for the plaintiff, it will be seen 
 that the case is by no means at variance with the general proposi- 
 
 1 See Goodyear v. Banks, T, Raymond, 194. 
 
 2 4 Inst. 102; and see R. Lat. 241. 
 
 3 Goodwin V. Gibbons, 4 Burr. 2108. 
 
 4 4 Inst. 102, marg. ; and see Crosby v. Leng, 12 East, 409. where, although a 
 defendant had been indicted for a felonious assault by stabbing, and acquitted; the 
 party injured notwithstanding sued him for damages in a civil action. 
 
 5 Anderson v. Watson, .3 Carr. & Payne, 214.
 
 91- LAW TRACTS. NO. I. [CAP. V. 
 
 tion advanced above. It appeared that the defendant had been 
 directed to attend a sale of certain premise's which the plaintiff held 
 under a lease from the attorney's employer, and to state that en- 
 croachments had been made on the landlord's ground. The defen- 
 dant went to the sale, and not oidy asserted publicly, before the 
 first lot was put up, what he had been commissioned to notice, but 
 made use of a variety of other remarks, all tending to the deteriora- 
 tion of the plaintiff's title; and went even so far as to say that a 
 Chancery suit was depending with reference to the premises, a 
 perusal of the proceedings in which, would, upon examination, jus- 
 tify his observations. Mr. Justice Littledale, after commenting on 
 several parts of the evidence adduced to substantiate malice, con- 
 cluded by leaving it to the jury to consider whether the defendant 
 acted hondjide as attorney for his employer, and whether either the 
 one or the other acted unfairly, or without due consideration. ' 
 
 II. On express and implied contracts. — I ngeneral, where a man 
 is known to act merely as an agent, the rule is, that although the 
 person immediately making the contract, he is not subject to per- 
 sonal responsibility." An attorney is not therefore liable upon an 
 agreement he makes in his representative capacity, provided he do not 
 personally contract as agent, or so far exceed his powers as to render 
 his principal irresponsible.^ But where the solicitors of the assignees 
 of a bankrupt tenant, upon whose lands a distress had been put by 
 the landlord, gave the following written undertaking : " We, as 
 solicitors to the assignees, undertake to pay to the landlord his rent, 
 &c." it was decided they were personally liable. Holroyd J. ob- 
 served, that if the defendants w^ere not liable, nobody was bound by 
 the undertaking ; it being clear that the assignees were not bound. ^ 
 And an attorney who in writing " personally" undertakes that a 
 record shall be withdrawn, and costs paid, in a cause in ivhich he is 
 concerned for another, is liable to be sued upon such engagement. 
 In such case the attorney could not be considered a surety, for his 
 client was not bovnid by the engagement.^ So, in the case of 
 Kendray v. Hodgson,^ an attorney who signed a conditional under- 
 
 ' Watson V. Reynolds, 1 Moo. & Malk. p. 1 ; Hargrave v. Le Brere, 4 Burr. 
 2422 ; and see Gerard i'. Dickenson, 4 Co. 18; Banester v. Banester, cited id. 17, a.; 
 Smith V. Spooner, 3 Taunt. 246; Pitt v. Donovan, 1 iNI. & S. 639. 
 
 2 Paley's Prin- & Agent, 289. 
 
 3 See Hartop v. Juckes, 2 M. & S. 438 ; Paterson v. Gandasequi, 15 East, 62; 
 Spittle V. Lavender, 5 IMoore, 2/6. 
 
 4 Burrell v. Jones, 3 B. & A. 47- 
 
 fi Iveson V. Connington, 1 B. & C. 160 ; 2 D. & 11. 307 ; 1 Lav/ Joum. K. B. 71. 
 « h Esp. 228.
 
 CAP. v.] RELATIVF. TO ATTORNIES AND SOLICITORS. 95 
 
 taking to give up certain bills which he held on account of his 
 client, would have been deemed personally liable, had it not ap- 
 peared from the agreement that he became a party to the contract 
 solely in his capacity of agent. And where the attorney for a parish 
 indicted for not repairing a highway, entered into an agreement with 
 the solicitor for the prosecution, whereby he, oji the part of the 
 parish, consented to withdraw a special plea, and to plead guilty, 
 *' and also to pay all costs ;" and it was agreed that the costs to be 
 paid bf/ the said parish, should be taxed, — the Court held, that the 
 attorney was personally liable.' 
 
 Again — it is a general rule of law applicable to agents, that, 
 although contracting as agents, they are nevertheless generally liable 
 where from their conduct it does appear that there is a principal to 
 resort to.^ Subscribing to this doctrine, the Court held, that an at- 
 torney who took witnesses to an inn was priindj'acie liable to the inn- 
 keeper for the expenses incurred — the Covu't observing : attornies 
 generally pay the bills at the inn for witnesses, and the landlord 
 generally looks to them for payment. With the witnesses he is 
 generally entirely unacquainted. If the attorney wishes to exonerate 
 himself, he should mention to the inn-keeper that he will not un- 
 dertake to defray the expenses incurred.^ 
 
 Let us now devote a few lines to an examination of the liability 
 of a solicitor to the messenger under a commission of bankruptcy. 
 The reader need scarcely be reminded that the solicitor is not, in 
 general, to be regarded as a principal ; still it is necessary to impress 
 this axiom on his mind, as it is this which relieves the solicitor, in such 
 case, from any liability.'* The messenger is aware he is not a prin- 
 cipal ; and upon the opening of the commission, he may ascertain 
 who is petitioning creditor : for although the solicitor is the medium 
 throuffh which it is convenient to the messenger to receive his bill 
 of fees, that will not make him a principal. But where the solicitor 
 agrees with the petitioning creditor to work the commission for a 
 certain sum, in that case, as soon as he receives as much as is 
 sufficient to pay the messenger's bill, the latter may maintain an 
 action against him for the amount of it, as for so much money 
 
 » Watson V. IMunel, 1 Carr. & P. 307 ; s. c. 2 Law Journ. K. B. 155. 
 
 2 See lloiseley v. Bell, Ambl. 7(i9, 7/2; Myriel v. Hymondsold, Harilr. 205; 
 Cullen V. the Duke of Queensberry, 1 Bro. C. C. 101, afBrmed Dom. Proc. 
 March 27, 1787; and see 1 Bro. C C. 101. in 7iotis. 
 
 3 Cariss v. Richardson, 1 Law Journ. K. B. 11. 
 
 4 Hart V. White, Holt, N.P.C. 37(5 ; and see Id. 217- in nulls.
 
 «J6 LAW TKACTS. NO. I. [CAF. V. 
 
 had and received to his use.' Of course, he may render himself in 
 tliis, as in all other instances, liable, by means of a special con- 
 tract." 
 
 In cases where the attorney has once admitted an individual 
 responsibility, his undertaking does not, however, become irrevo- 
 cable. It may, like all other contracts, be affected by the sub- 
 sequent conduct of the parties. In one case, upon an action being 
 instituted against the defendant, his attorney, by letter, undertook 
 to procure the plaintiff a cognovit for the amount, which he could 
 not afterwards accomplish. It appeared that, upon the solicitor's 
 informing the plaintiff of this, he observed that he did not wish to 
 be severe, and that he would immediately proceed with the action. 
 This declaration the Court held a virtual waiver of the contract 
 which the attorney had agreed to carry into effect.^ 
 
 e. To the summary jnrisdiciion of the Court. — Tlie power which 
 the courts of law and equity assert over attornies is so often appealed 
 to, that a rigid examination of the rules by which it is regulated is 
 necessary, in order to ascertain when it can be resorted to, and to 
 what extent its exercise may be carried. Its existence is most sa- 
 lutary ; nay more, were it not in many cases asserted, evils of a most 
 
 1 Hartop V. Juckes, 2 iM. & S. 438. So -where the soHcitor, who sued out the 
 commission, was retained by the assignees, and having made out and deUvered 
 his bill to them, as well for the business done before the choice of assignees, as for 
 that done after, was paid by them a sum of money on account generally ; it was 
 liolden, that he was bound (as the assignees themselves would have been) to ap- 
 propriate the sum so received to the payment of that portion of the bill for which 
 the petitioning creditor was liable ; and that, therefore, in an action by the peti- 
 tioning creditor against him for the amount of a private debt, he could not, under 
 those circumstances, set off the amount of the petitioning creditor's costs of the 
 commission, for they were already satisfied : Phillips v. Dicas, 1 5 East, 248 ; sed 
 vide Ex parte Hartop, 12 Ves. 349. where the messenger had taken a note from the 
 petitioning creditor for part of his claim, and the petitioning creditor had since 
 absconded, in which case it was held, that the messenger might bring an action for 
 the residue, and costs and damages, against the solicitor, who, it was said, was 
 responsible, not only for the fees, but the consequences of employing the messen- 
 ger, when the commission was not supported. 
 
 Upon this case being, however, quoted, in Ex parte Burwood in re Howard and 
 Gibbs, (2 Glyn & Jam. /O.) to shew that the solicitor was liable to the messenger, 
 the Chancellor said, "according to the decisions at law the soli.'itor is, in no case, 
 liable to the messenger, except vipon special contract. The case of Ex parte Har- 
 top, which has been mentioned as countenancing a different principle, does not 
 go to the extent that is here contended for." 
 
 2 Ex parte Burwood in re Howard & Gibbs, 2 Glyn & Jam. 76. 
 ^ Miller v. James, 8 Moore, 2l
 
 CAP. v.] RELATlVi: TO ATTORNIES AND SOLICITORS. 97 
 
 serious cast might ensue. Before proceeding to an examination of 
 this topic, it may be laid down as an universal rule, that the Courts 
 will not in general interfere in a summary way for a mere breach of 
 promise where there is nothing criminal ;' or on account of any neg- 
 ligence and unskilfulness,- unless it be exceedingly gross,-^ or accom- 
 panied with fraud ;'^ or for the misconduct of an attorney indepen- 
 dently of his profession,^ or with reference to any thing that took 
 place previously to his admission. ^ 
 
 I. In general. — The causes for which the Courts interfere are so 
 numerous, that it must not be taken for granted that the instances 
 here enumerated are the only cases in which their power will be as- 
 serted. Their authority is abolutely discretionary." From the ex- 
 amples that will be hereafter alluded to, the prtnciples upon which the 
 Courts act may be discovered, and from thence their application to 
 particular facts may be deduced. 
 
 There are various modes of effecting the object the Court hav^ in 
 view." Their adoption depends on the nature of the charges made 
 against the individual. Should the offence committed be very gross, 
 they will strike the attorney off the roll, upon the motion of the com- 
 plainant. If the attorney's misconduct be not so flagrant as to call 
 for the erasure of his name from the roils of the court, a motion may 
 be made in the courts of common law for an attachment ;^ and, in 
 
 1 See Bac. Abr. Attorney, H. ; Petersdoiff's Abr. tit. " Attorney ;" Iw re Law- 
 rence, 2 Moore, 6G5 ; Bishop v. Hiiggins, Barnes, 38 ; In re Jones, 1 Chit. 650 ; 
 
 Evans v. P , 2 Wils. 382 ; Short v. Pratt, 1 Bing. 102 ; s. c. 7 IMoore, 424 ; 
 
 8. c. 1 LawJoum. C.P. 9; Ex parte Brookes, 1 Bing. 105. 
 
 ^ Pitt V. Yalden, 4 Burr. 2060 j Barker v. Butler, 2 Bl. Rep. 780 ; In re Jones, 
 
 1 Chit. Rep. 650 ; Russel v. Black, 6 Law Joum. C.P. 58. 
 
 ^ As where the client was non-prossed for want of a replication ; Barker v. Butler, 
 
 2 Bl. Rep. 780 ; Rex v. Tew, Say. 50 ; Rex v. Bennett, id. 169 ; Garner v. Lanson, 
 1 Barnardist. 101 ; Hull. Costs, 489. 
 
 4 In re Jones, 1 Chit. Rep. 651. 
 
 5 Sed vide In re Aitkin, 4 B. & A. 47 ; De Woolfe v. , 2 Chit. Rep. 68 ; In re 
 
 Knight, 1 Bing. 91; Short v. Pratt, 7 Moors, 424; s. c. 1 Bing. 102; s. c. 1 
 Law Jonrn. C.P. 9 ; Luxmoreu. Lethbridge, 5 B. & A. 898. 
 
 6 In re Page, 1 Bing. 160; s. c. 1 Law Joum. C.P. 45 ; Cooper v. Sayer, Ca. 
 Pr. 117; s. c. Barnes, 29; sed vide Ex parte Hill, 2 Bl. Rep. 991. 
 
 7 Case of Crossley, Clarke and Brierly, 6 T. R. 701. 
 
 3 The application should be of course made to the Court of which the party 
 is an attorney: Craven v. Billingsley, Barnes, 47. 
 
 9 Motions and affidarits for attachments in civil suits, in the King's Bench, are 
 proceedings on the plea side of the court, until the attachments are granted, and 
 are to be en/tled with the names of the parties, (3 T. R. 253; 7 id. 439, 528; 
 12 East, 165) ; but as soon as the attachments are granted, the proceedings are on 
 the Crown side, and from that time tlie King is to be named as the prosecutor : 
 VOL. II. O
 
 98 I^AW TUACTS. NO. I. [CAP. V. 
 
 some cases, the attorney will be called upon to answer the matters of 
 an affidavit ' imputing fraud or malpractices-' inconsistent with the 
 
 1 Chit. Rep. 727(fl). And motions and affidavits for attachments are entitled in like 
 manner in the Common Pleas -.2 Kbi P. 517 («), and Exchequer. A rule nisi for 
 an attachment cannot be moved for the last day of term ; (3 Smith's Rep. 118.) nor 
 can it be served on a Sunday : 8 T. R. 36. The attachment is a ciimiiial process, 
 du-ected to the sheriff, commanding him to attach the party so that he have him 
 before the King, or his Justices, at Westminster, on a certain day, to answer " of 
 and concerning those things which shall there, on his Majesty's behalf, be objected 
 against him," Tidd's Pr. 8th edit. p. 487. The party being taken on this writ, 
 either remains in custody, or puts in bail, before the Court, (Barnes, 77) or a Judge, 
 (for it has been doubled whether he is bailable by the sherift— see 1 H. Bl. 468 ; 
 6 Taunt. 5/1 ; 2 IMarsh, 283 ; 1 Str. 4/9,) to answer interrogatories, and to appear 
 from day to day till the Court shall determine concerning the matters objected 
 against him : Imp. C.P. 570. 
 
 When the party has been taken upon the attachment, the Court, upon motion 
 by his counsel, will make a rule, that vmless his adversary exhibits interrogatories 
 against him in four days, which must be in term time, (Comb. 8.) he shall be dis- 
 charged. These interrogatories must be signed by counsel, (5 T. R. 474,) or a Ser- 
 jeant, and filed in the King's Bench, with the IMaster of the Crown Office, who is 
 to examine the party thereon in four days after the interrogatories are brought in. 
 (Lil. Pr. Reg. 75.) But in the Common Pleas they are filed with one of the secon- 
 daries, (2 Bl. Rep. 1110.) who examines him, and afterwards makes copies of the 
 depositions for each party. And if the Master, or Prothonotories (to whom the 
 matter is generally referred in the Common Pleas, Imp. C.P. 571.) report that he 
 is in contempt, the Court will commit him to the King's Bench or Fleet prison ; 
 but if the report be in his favour, they will order him to be discharged, or his 
 recognizances to be vacated : 3 BuiT. 1257 — Vide p. 99. n. 4. 
 
 ' A reference was in one case (Anon. Tn re, 5 Law Joum. C.P. 107) prayed to 
 the Prothonotary to inquire into charges made against an attorney who had been 
 called upon to answer the matters of an affidavit in which such charges were im- 
 puted to him ; but the Court said, that as the party was called on to answer the 
 matters of an affidavit, its facts must be stated to the Court, and more particularly 
 so, as the charge was made against one of its officers. 
 
 2 As if an attorney, after saying there was no defence to the action, and that the 
 plaintiff" shall not be put to expense, puts a plea on the record, the Court will re- 
 quire him to shew by what authority he has done it, (Harrison v. Eakm, 1 Law 
 Joum. K.B. 24/.) in which case they will either fine or imprison him. See In re 
 Elsam, 3 B. & C. 597 ; s. c. 6 D. & R. 389 ; s. c. 3 Law Joum. K.B. 75. A rule 
 nisi will, however, never be granted on the last day of term, for an attorney to 
 answer the matter of an affidavit, or hear cause shewn against it : Baily v. Jones, 
 1 Chit. 744 ; Cass v. Niblett, ibid. 745. As to costs in such cases, if the rule be 
 made absolute, the attorney will ultimately have to pay the costs ; if discharged^ 
 and there appear to have been no grounds, or very slight ones, for the ai)plication, 
 it will be discharged with costs. But if there appear to have been reasonable and 
 probable cause for imputing misconduct to an attorney, although it turn out that 
 there was no actual foundation for the charge, the Court wiU not give the attorney 
 his costs : Doe dem. Thwaites v. Roe, 3 D. & R. 226 ; s.c. 1 Law Joum. K.B, 246.
 
 CAP. v.] UELATiyK TO ATTORNIES A.ND SOLICITOUS. 99 
 
 obvious rules of justice, and common honesty, or be rendered liable 
 for the payment of such costs as the Courts may deem it advisable 
 to award. 
 
 If in the last instance he positively deny the malpractices imputed 
 to him, they will dismiss the complaint ; but, if he do not unequivo- 
 cally repudiate the charges made against him,^ they will grant an at- 
 tachment.*^ Yet, where an attorney, in his answers to interrogatories, 
 fully denied the matter of complaint, but in endeavouring to excul- 
 pate himself, gave such an account of the transaction in question as 
 was highly incredible, the Court, notwithstanding the denial, granted 
 the attachment.^ But it is only in cases where the attorney's answer 
 to the complainant's affidavit cannot have the effect of criminating 
 him, that you can move that he answer the contents of such a depo- 
 sition ; in all other cases you must move, in the first instance, either 
 for an attachment, or that he be struck off the roll.^ 
 
 In general, therefore, where it appears that an attorney has been 
 fraudulently admitted ;" or convicted of felony, subsequent to his ad- 
 mission ;^ or any other offence which renders him unfit to be conti- 
 
 3 Wadworth v. Allen, 1 Chit. Rep. 18G ; et vide Bac. Abr. tit. *' Attorney." 
 
 "1 The rule for an attachment is a rule nisi in the King's Bench and Common 
 Pleas : Tidd's Pr. 8th edit. p. 486. And though in the Court of Exchequer there 
 should in general be a rule to shew cause (Timings v. Blatherwicke, Forrest's 
 Ex. Rep. 80.) ; yet where an attorney had been ordered by a former rule to pay a 
 sum of money to his client, with the costs of the application, the Court granted 
 a rule for an attachment against him for non-payment of such sum, absolute in 
 the first instance: Rex v. Price, 1 Price, 341. 
 
 5 Case of Crossley, Clarke, and Brierly, 6 T. R. 701. 
 
 e Anon. E. T. 1820, JMss., 1 Arch. Pr. K.B. vol. i. p. 32, 2d edit. ; Tn re Knight 
 V. Hall, 1 Bing. 142; Short t>. Pratt, id. 102. It was at one time doubted whether 
 the affirmation of a Quaker was admissible to call upon an attorney of the Court of 
 King's Bench to answer the matters of an affidaA'it {In re Gellibrand, 1 D. &• R. 1 21 .) ; 
 and the true distinction to be collected from all the cases upon the subject seemed to 
 be this : that if the object of the suit or proceeding were to recover a debt, or to 
 give to a party any legal civil right, the affirmation of a Quaker was admissible; 
 and that actions on penal statutes were to be considered as actions for debts ; but 
 that where the object was not to give to the party any legal civil right, but to 
 punish a person who had done something wrong, the affirmation of a Quaker was 
 not admissible ; (Id. 124, per Bayley, J.) By the act of parliament passed during 
 the last Session, 9 Geo. 4. c. 32. s. 1, this disability of Quakers, in matters relating 
 to criminal matters, is entirely removed ; and the statutes 7 and 8 W. 3. c. 34. 
 and 22 Geo. 2. c. 46. s. 36, 37. in this respect, repealed. 
 
 7 ExparteKilh 2 Bl. Rep. 991. 
 
 8 Although the indictment may afterwards turn out to be untenable : Rex v. 
 Southerton, 6 East, 126; s. c. 2 Smith's Rep. 30o ; Brounsall's case, Cowp. 829; 
 £» parte Troy, 1 Mod. 6 j Anon., 1 Chit. Rep. 557. In the laPt case the attorney
 
 100 LAW TRACTS. NO. T. [cAP. V. 
 
 nucti an attorney;' or of knowingly suffering his name to be made 
 use of by an uncjualified person ; or acting as agent for such per- 
 son ;-' or conducting a suit or plaint during his conlinement within the 
 walls of a prison;' or otherwise grossly misbehaving himself;^ as by 
 alleging that for error which he knows to be false ;■'' or by signing a 
 fictitious name, as that of a barrister to a special plea ;'' the Court 
 will order him to be struck off the roll. And the Court even adopted 
 this plan of punishing an attorney who had been convicted of a cri- 
 minal offence, the record of which had been afterwards nullifiedj 
 enougli appearing to the Court to render the party an improper 
 person to be continued on the roll.' 
 
 It was at one period questionable, whether an attorney, who kept 
 out of the way to avoid personal service of an attachment for non- 
 payment of mous}', was liable to be struck off the roll.^ An appli- 
 cation has been, however, since refused in the case of Rex v. Car- 
 penter.'-^ 
 
 So where, for the purposes of vexation, extortion, or oppression, 
 an attorney obtains a warrant and apprehends a party;'" or procures 
 an individual to be turned out of quiet possession through the me- 
 dium of a fictitious ejectment ;'^ or gives notice contrary to the fact, 
 
 had been convicted of a conspiracy. The motion was grounded ujjonan examined 
 coi)y of the conviction, and an aflidavit of the defendant's having practised since 
 the conviction, and of his identity. 
 
 And, by 12 Geo. 1. c. 29, if any person convicted of forgery, perjury, subor- 
 nation of perjury, or common barratry, shall practise as attorney, solicitor, or 
 agent, in any suit or action in any court of law, or equity, in England, the Judge 
 may transport the oflFender for seven yeai's, by such ways and under such penalties 
 as felons. 
 
 1 Rex V. Southerton, 6 East, 1 2G ; s. c. 2 Smith's Rep. 305. 
 
 2 22 Geo. 2. c. 2 ; In re Jackson v. Wood, 1 B. & C. 270 ; s. c. 1 Law Journ. 
 K.B. 115; In re Isaacson, 8 Moore, 322; sed vide Ex parte Garbutt, 9 Moore, 15/, 
 6. c. 2 Bing. 74. 
 
 3 In re Flint, 1 B. & C. 254 ; s. c. 2 D. & R. 406 ; s. c. 1 Law Journ. K.B. 111. 
 ^ Potter's case, cited 1 Tidd, 84, 8th edit.; Priddle's case, cited ibid.; Sty. 42G ; 
 
 Fitzg. 191; Mod. Ca. 16, 187; Sti. Pr. Reg. 2; Moor, 882; 2 Inst. 215; 4 id. 
 101 ; Hetl. 29; 2 Roll. Rep. 459 ; Jerome's case, Cro. Car. 74; Jones u. the Earl 
 of Bath, 4 Mod. 567 ; Anon., 6 id. 16 ; Anon., ibid. 1S7 ; Wright v. Mason, 8 id. 
 109; Lord Say and Seal's case, 10 id. 45. 
 5 Aston's case, 1 JMod. 41. 6 Smith v. Matham, 4 D. & R. 733. 
 
 7 Kex V. Southerton, 6 East, 126; s. c. 2 Smith's Rep. 305. 
 
 8 Jn re , 1 D. & R. 529. 
 
 Anon. H. T. 1825, Mss. ; 1 Arch. Pr. K. B. 2d edition. 
 
 10 Wright V. Mason, 8 Mod. 118 ; Price v. , 5 Law Journ. K.B. 221 ; and 
 
 see Bradbury v. Hunter, 2 Law Journ. K.B. 79. 
 '" Holderstaflfe v. Saimders, 6 Mod. 16.
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. 101 
 
 that the defendant has surrendered in discharge of his bail ;' or is 
 highly culpable in the management of his client's business ;- an at- 
 tachment will be invariably granted. 
 
 The Courts will, however, in no case interfere, if a specific re- 
 medy be pointed out by the legislature, where the attorney appears 
 to act with strict honesty, and with a view to the benefit of his 
 client ;^ and it is an essential requisite, to render an appeal to the 
 summary jurisdiction of the Court available, that the applicant should 
 not be himself guilty of improper conduct.* 
 
 In some cases, it has been already observed, the Courts deem it 
 sufficient to make the attorney pay the costs incurred by the parties, 
 arising from his gross negligence, gross ignorance, or gross misbe- 
 haviour.^ Thus, for instance, where an attorney put in bail, which 
 he knew to be insufficient, and gave notice of their justification, the 
 Court, upon application, ordered him to pay the costs of opposing 
 them.^ So where an attorney had obtained a rule ?iisi on his own 
 affidavit, which stated, that no bail had been put in, in the action, 
 when, in fact, bail had been put in and justified ; but a mistake was 
 
 1 Thomson v. Burton, Pr. Reg. 43. 
 
 2 Floyd V. Nangle, 3 Atk. 568. See Dwyer v. O'Brien, Ridgw. P. C. 38. n. 
 
 3 Matthews v. Royle, 6 JMoore, 70 ; Harrington v. Jennings, Lofft, 188 ; Rex v. 
 Pepper, 8 Mod. 227; Camden v. Edie, 1 H. Bl. 21. 
 
 4 Sedgworth v. Spicer, 4 East, 568 ; s. c. 2 Smith's Rep. 305; Ex parte Brookes, 
 1 Bing. 105. In this case an appHcation had been made, that an attorney might 
 refund to the appUcant certain monies of his, which he had received under the 
 following circximstances : — It appeared that the applicant being in prison for for- 
 gery, the prosecutor had intimated his wish to relinquish the indictment, provided 
 the present applicant would pay his (the prosecutor's) attorney's costs, and that 
 the applicant, impressed with the idea that his life was in danger, had paid the 
 money to the said attorney, part before, and part after, his trial. The Court re- 
 fused the application. 
 
 6 See Vincent v. Groome, 1 Chit. Rep. 182 ; Brooks v. Day, Dick. 572 ; Hawkins 
 V. Edwards, 4 Moore, G03 ; Rex v. Fielding, 2 Burr. 655 ; Steer v. Smith, Chit. Rep. 
 44, 80 ; Rex v. Hodgson, Pr. Reg. 43G ; Ves. 770 ; Fawkes v. Pratt, 1 P. Wms. 693 ; 
 Blundell V. Blundell, 1 D. & R. 142; Rex r. Tew, Sayer's Rep. 50, 169, 172; 
 6 Mad. 386 ; Bowles v. Stewart, 1 Sch. & Lef. 226 ; Ex parte Simpson, 15 Ves. 476 ; 
 Castigan v. Hastier, 2 Sch. & Lef. 165 ; E.v parte Thorp, 1 Ves. jun. 394. The 
 case of Roe v. Doe, (1 Law Journ. K.B. 154,) may bo here mentioned— an at- 
 torney, imagining that the two causes above his own would take up some time, 
 left the Court at the assize ; on his return the defendant had been called to con- 
 fess lease, entry, and ouster. It was not sworn that counsel had been instructed. 
 The Court granted a new trial, on the attorney paying the costs out of his own 
 
 pocket. 
 
 6 Bhmdell V. Blundell, 5 B. k A. 533 ; s. c. 1 D, cSc R. 142.
 
 10^3 LAW TRACTS, NO I. [cAP. Y. 
 
 merely made in the filacer's entry in the christian name of one of the 
 plaintiffs ; the Court discharged the rule, directing the costs to be 
 paid by the attorney who had subscribed such deposition.'. In like 
 manner, if an attorney obtain a rule nisi upon suggestions which 
 turn out to be groundless ;'^ or be directed by a Judge's order to 
 produce his client, and he neglects to do so, in consequence of 
 which the latter is non-prossed, the Court will compel him to pay 
 the costs by attachment.^ So if there be palpable mistakes in a 
 fine or recovery through the remissness of the attorney ;'' or if a 
 cause, which is meant to be defended, be called on as an undefended 
 cause in consequence of the defendant's attorney neglecting to de- 
 liver his briefs ; he will be called upon to liquidate the costs in- 
 curred.^ And, if a declaration be so badli/ written as to be almost 
 unintelligible, whereby a detriment is sustained, the absence of 
 care on the part of the attorney will subject him to be visited with 
 costs.^ So, an application was granted on the behalf of the defen- 
 dants, that a solicitor, who had filed a bill for the plaintiff, might pay 
 the defendants their taxed costs, on the ground that the plaintiff had 
 absconded eight years before the bill was filed, and that the solicitor 
 had never received any instructions from him, but from his brother- 
 in-law.^ And where an attorney delivered particulars of demand 
 containing only the debtor side of the account, he was decreed to pay 
 the costs subsequently incurred in the action.^ So the Lord Chan- 
 cellor charged a solicitor with costs, where a commission of bank- 
 ruptcy was superseded, on the ground of fraud in his conduct; it 
 appearing that the solicitor had, by iinproper additions to the names 
 of the commissioners, deceived the secretary of bankrupts, and there- 
 by obtained a docket, contrary to a general order of the Court." 
 
 It may be also noticed, that it is not essential that the misconduct 
 of the attorney should have arisen in the course of a suit, or other 
 regular business or ordinary occupation of a solicitor. His engage- 
 
 1 Clarke v. Gorman, 3 Taunt. 492. 
 
 2 Rolfe V. Rogers, 4 Taunt. 191 ; et vide Gruggen v. White, id. 881 ; Stone v. 
 Stone, 4 Taunt. 601 ; Wadworth v. Allen, 1 Chit. Rep. 186. 
 
 3 Gynn v. Kirby, 1 Str. 402. 
 
 4 De Roufigny v. Peale, 3 Taunt. 484. 
 
 8 Williamson v. Beaumont, 4 INIoore, 171. 
 
 6 Anon., 2 Law Joum. K.B. 154. 
 
 7 Hall V. Bennett, 2 Sim. & Stu. 78. See Wright v. Castle, 3 Meriv. 12. 
 
 8 Adlington v. Appleton, 2 Campb. 410. 
 
 9 Ex parte Conway, 13 Ves. jun. 62 ; et vide Ex parte Haywood, id. 6/ ; Ex parte 
 Arrowsmith, Hid. 209; Es parte Thorpe, 1 Ves. jun. 394.
 
 CAP. v.] RFXATIVE TO ATTORNIES AND SOLICITORS. 103 
 
 ment must not be entirely irreconcileable with his professional duties ; 
 but, wherever it is so connected with his character as an attorney, as to 
 aftbrd a presumption that the fact of his being a solicitor had been 
 the chief inducement of his employment, the Courts will exercise the 
 power of interference according to their discretion. Accordingly, 
 where a solicitor had been employed under a warrant of attorney from 
 foreigners acting as agents for others, and in such capacity had re- 
 ceived various sums of money, he was compelled to pay them into court 
 for the benefit of the parties interested, without obliging them to 
 file a bill in equity. In this case, it will be observed, that no action 
 was depending, but that the Court merely interfered in a summary 
 way to make the attorney do what was right ; it appearing that he 
 had been employed in consequence of his being such.' In a similar 
 manner, where, from the facts of the case, it was highly probable 
 that the talents and professional attainments of the attorney had been 
 reposed in, he was ordered by the Court to place the party injured 
 by his want of care and due diligence, in the same situation as he na- 
 turally had a right to expect, from the official capacity with which 
 the sohcitor was invested. An action had been instituted against an 
 attorney on his bond, which, it was estabhshed, had been entirely 
 prepared and signed by the defendant. The security proved un- 
 available, not having the proper stamp affixed to it. This omission 
 was considered by the Court of King's Bench, quite sufficient to in- 
 duce them to order the attorney to annex the legal and requisite 
 stamp to the instrument.'^ 
 
 1 De Woolfe v. , 2 Chit. Rep. 68. See In re Aitkin, 4 B. & A. 47 ; Cocks v. 
 
 Harman, 6 East, 404; s. c. 2 Smith, 409; Ex parte Corp. Christ. College, 6 Taunt. 
 105; Parker v. Marshall, Lofft. 271; Hughes v. Mayre, 3 T. R. 275 ; Ex parte 
 Hall, ih re Knight, 7 Moore, 437 ; s. c. 1 Bing. 91 . In this last case, it appeared, 
 that knight was attorney to the applicant, and had, by his request, undertaken to 
 obtain cash for certain bills of exchange deposited with him ; and the affidavit set 
 forth, stated that he had converted the proceeds to his own use. On an application 
 for a'rule nhi, that he might be ordered to deliver over the money, the Court were 
 at first of opinion that their jurisdiction extended only to the acts of attomies in 
 their professional character, whereas here, it appeared, that he had acted as a bill- 
 broker, and said that an action for money had and received would have been the 
 proper' mode of redress. The rule was, however, subsequently granted, on the 
 authority of In re Aitkin, 4 B. & A. 47. 
 
 2 Gwilliam v. Barnett, 2 Smith's Rep. 155. The Court, in their decision, ad- 
 verted to another reason as influencing their judgment, that a mere volunteer 
 (such as the defendant clearly was,) was liable for any loss which occurred through 
 his own gross negUgence : see Coggsr. Bernard, 2 Lord Raymond, 909 ; Jones on 
 Bailments, and Petersdorff's Abridgment, tit. « BaOraent."
 
 104- LAW TRACTS. NO. I. [cAP. V. 
 
 As to how far tlio diflorcnt tribunals follow the examples of one 
 another in erasing from their rolls attornies who have exposed 
 themselves to the summary jurisdiction now under investigation, 
 the case of Li re Smith ' may be cited ; where an attorney having 
 been struck oft' the roll of the Court of King's Bench, on the report 
 of the Master, for misconduct, the Court of Common Pleas, on mo- 
 tion, supported by an affidavit of the Master's report, ordered the 
 insertion of his name on the roll to be cancelled. But, in a similar 
 case, the rule for striking the attorney off* the roll was refused ; the 
 contents of the affidavit, on which the Court of King's Bench acted, 
 not having been stated, and there being no proof or allegation that 
 the solicitor had been struck off the roll for a misdemeanour.- 
 
 Lastly, it may be mentioned, that the punishment of an attorney, 
 by striking him off the roll, is not in all cases to be viewed as a per- 
 petual disability, but the Judges may intend it as a temporary sus- 
 pensioji only ; and, if his offence have been attended with circum- 
 stances of extenuation, and his subsequent conduct prove him de- 
 serving of their lenity, they may order him to be readmitted upon a 
 proper application behig made to them for that purpose.^ But where 
 the attorney applies for restoration, he must unequivocally satisfy the 
 Court that he ought to be readmitted ; for where the interval that 
 had elapsed between his being struck off the roll and the subsequent 
 appeal to the Court to be reinstated had been considerable, the 
 Judges were of opinion, that the mere want of experience, arising 
 from his having discontinued practice, was, independently of other 
 circumstances, a sufficient answer to the application.^ 
 
 II. Btj compelling performance of Contracts or Undertakings. — 
 This power of the Courts is also of great advantage in enforcing 
 the undertakings or implied contracts of attornies. When therefore 
 an attorney has undertaken to pay over a sum of money,'' or to 
 
 1 1 B. &B. 522; s.c. 4 Moore, 319; and in Ex parte Hallett, the Lord Chan- 
 celloi" pursued a similar course where the attorney had been struck oflf the rolls of 
 the King's Bencli : Anon., Gth August 182B, Mss. 
 
 ^ In re Hague, .3 B. & B. 257 ; s.c. 7 Moore, 64. In the Common Pleas, if an 
 attorney be guilty of any censurable conduct, quatenus an attorney, in an inferior 
 
 court, the Court will oblige hira to answer the complaint : Evans v. , 2 Wils. 
 
 382; Parker's case, 1 Vent. 331. 
 
 •* Rex V. Greenwood, 1 Bl. Rep. 222. The application in such a case, it seems, 
 should be by petition to the Judges at the Treasury Chamber, and not by motion 
 to the Court : ^ed vide 1 Bl. Rep. 222. 
 
 '* Ex parte Frost, 1 Chit. Rep. 558, n. 
 
 5 Stevenson v. Power, 9 Price, 384 ; Birchinshaw v. Jackson, 3 Law Journ. K.B. 
 263. And where a sum of money was ordered by the Court to be paid by one party
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. 105 
 
 appear :• he must fulfil such engagements, or the Courts will strike him 
 oft' the roll, or grant an attachment according to the circumstances ; 
 even althougli the undertaking be given under a false statement 
 by the sheriff's officer, that he was desired by the defendcint to direct 
 the attorney to appear,^ or be entered into by the attorney's clerk 
 without his principal's knowledge,^ or be conditioned to file bail, 
 though there be no affidavit of the debt,"* or to aj)pear for an 
 infant,^ or to accept a declaration.^ Where an attorney had ob- 
 tained papers from the former attorney of the party, under an express 
 undertaking that the claim for his bill should be referred, and a rule 
 had been obtained to enforce such undertaking, it appeared, that 
 after the undertaking, the former attorney had proved a debt under 
 a second commission issued against the client (excepting the under- 
 taking so given). This, it was contended, was an election under the 
 then existing bankrupt act, the 49 Geo. o. c. 121. s. 14, (the provi- 
 sions of which have been in this respect repeated in the 6 Geo. 4. 
 c. 16. s. 59,) and disp/snsed with the reference ; but the Court held, 
 
 and his attorney, or one of them, -the Court, upon an affidavit that the party had 
 not paid it, and that the attorney had been appUed to, granted an attachment 
 against the attorney : Doe dem. Humphries v. Allen, 1 Law Journ. K.B. 153. 
 
 Personal service of an attachment for not paying money pursuant to the Mas- 
 ter's allocatur, cannot be dispensed with : In re • , 1 D. & R. 529. But, if a party 
 
 in a cause take a promissory note from his attorney, for the debt which the at- 
 torney has received from the opposite party, he deprives himself of the summary 
 relief by application to the Court to make the attorney pay over the money: 
 Anon., 3 Law Journ. K.B. 106. 
 
 I R. M, 1651, s. 10. K.B. ; R. M. 1654, s. 13. C.P. ; 6 Mod. 428; 5 Mad. 21 ; 
 Cooke V. Broomhead, 16 Ves. 133; Wigg v. Rook, ibid. 86; Mould v. Roberts, 
 4 D. & R. 719 ; 2 Ves. & Bea. 352. See Anon., 2 Chit. Rep. 36. In an Anonymous 
 case (Loift. 193.) an attorney undertook to enter a common appearance, but 
 though he wrote the undertaking he did not sign it, and immediately retracted, — • 
 the Court was applied to for an attachment, but discharged the rule, considering 
 the undertaking not so complete as to prevent ils being rescinded. But in Elvis 
 V. Mercato, 7 Mod. 48. money not having been brought into court pursuant to 
 a rule drawn up, and apparently by consent, an attachment was obtained against 
 the attorney, when it was objected, that though he had made the proposal, yet ha 
 had not formally consented to the rule, which objection was considered untenable. 
 See Miller v. James, 8 Moore, 208. A general undertaking, however, by an at- 
 torney to appear to process does not oblige him to put in special bail to bailable 
 process: 2 Chit Rep. 415. 
 
 ^ Lorymej v. Hollister, 1 Stra. 693. 
 
 3 Hickman v. Waller, Pr. Reg. 293. 
 
 4 Jones V. Leighton, Pr. Reg. 50. 
 
 5 Stratton v. Burgis, 1 Stra. 114. In this case he must api^ear by guaidian. 
 
 6 Kilbey v. VVeyberg, 12 Mod. 251. 
 
 VOL. II. P
 
 106 LAW TltACTS. NO. I. [cAP. V. 
 
 that tlie party was entitled to avail himself of such proof, and that 
 the attorney was, nevertheless, liable on his undertaking.^ 
 
 So very forcibly indeed have the Courts enjoined an adherence by 
 their officers to the contracts they have entered into, and so rigidly 
 have they required an observance of them, that, in a case which 
 occurred during Hilary term 1827,^ the Court of King's Bench 
 would not permit an attorney to set up the statute of frauds, to escape 
 the consequence of a written undertaking which he had given in a 
 cause. 
 
 III. By compelling Attornies to discover their Client'' s place of Resi- 
 dence. — Recalling to mind what has been already stated^ as to an at- 
 torney's privilege as a Avitness, it will be remembered that he is not 
 only privileged as such, connected with communications of his client's, 
 but that he cannot, even where his employer gives him the liberty 
 to do so, avail himself of the power of disclosing in evidence any 
 matter divulged to him as an attorney by his employer. In enabling 
 an individual to call upon the attorney of his legal antagonist to 
 inform him of the residence of his client, the Courts may at first sight 
 appear to deviate from the principle upon which the rule, which has 
 been just alluded to, was founded. But it would in many cases be 
 sure to operate as a complete obstruction to the progress of a cause 
 through its various stages, were the Courts not enabled to direct 
 the attorney to inform parties of such fact ; such as in actions of 
 ejectment or qui tarn, when the lessor of the plaintiff or the plaintiff 
 hhnself is unknown."* The application should be, however, made 
 in an early stage of the proceedings ; for an attorney will be, for 
 instance, in no case obliged to disclose his client's place of abode 
 after verdict.^ Where, therefore, the defendant in assumpsit 
 pleaded in abatement, that four others were jointly liable with him- 
 self, and the plaintiff applied to the defendant's attorney to give him 
 the places of residence and additions of those persons, which he 
 refused unless the action were discontinued, — the Court of King's 
 Bench made a rule absolute for the defendant to deliver such par- 
 ticulars, or, in default thereof, for setting aside the plea.'' And,'' 
 
 J Ex parte Hughes, 5 B. & A. 482. 
 
 2 Senior v. Butt, 5 Law Journ. K.B. 56. <* Ante, p. AG. 
 
 4 Adams, Eject. 315, 2t\d edit. 
 
 •'■' Hooper v. Harcourt, 1 H. Bl. 534 ; Braceby v. Dalton, 2 Str. 705 ; Sliindler 
 V. Roberts, Barnes, 120. 
 
 6 Taylor v. Harris, 4 B. & A. 93. 
 
 7 Johnson v. Birley, 5 B. & A. 510; s. c. 1 D. &R. 174.
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. 107 
 
 in an action of trespass and assault, the Court compelled the plain- 
 tiff to disclose to the defendants his proper addition and place of 
 residence, his identity being material to their defence on the trial. 
 So in a joint action by three plaintiffs for a hbel, the defendant may 
 call on the attorney of one of them to state the residence of the 
 other two.^ And where an attorney, under such circumstances, re- 
 fused to comply with a Judge's order upon the subject, the Court 
 allowed the defendant to 7ion jjros. the action, ordered the attorney 
 to pay the costs, and awarded an attachment against him for tho 
 non-payment of them. 2 
 
 IV. By comjjelling delivery of Pajjers, Deeds, ^c. — Where attornies 
 are intrusted with writings and documents in the way of their busi- 
 ness, the Court, on motion, will make an order upon them to deliver 
 them back to the party, ^ on payment of what is due to them,"* and 
 particularly when they have given an undertaking to re-deliver them."^ 
 But, when they come into the attorney's custody or possession by any 
 other manner, or on any other account, the party must have recourse 
 to his action.'' 
 
 The courts of law ^ have accordingly exercised a summary jurisdic- 
 tion over an attorney of that court, and have obliged him to deliver 
 up court-rolls, title-deeds, papers and writings, on satisfaction of his 
 lien, although they came into his hands as steward of a manor, and the 
 receiver of the rents.^ And, if a third person appear to be interested 
 therein, the Court will not suffer the attorney to avail himself of that 
 circumstance, but will direct a security to be given by the person to 
 
 1 Worton V. Smith, 6 Moore, 110. 
 •^ Gynn v. Kirby, 1 Str. 402. 
 
 3 Goring V. Bishop, 1 Salk. 87 ; Langslowu. Cox, 1 Chit. Rep. 98. See Tyack's 
 case, 2 Show. 165; s. c. Skin. 1 ; Dottin's case, 1 Str. 547 ; Wright v. Maj-nard, 
 M. T. 1828, MSS. In the latter case the rule was discharged, counsel having ad- 
 vised the detention of the papers. 
 
 4 Russel's case, 1 Kenyon, 129; s. c. Say. Rep. 125 ; In re , 4 Law Journ. 
 
 Chan. 207 ; In re iMurray, 1 Russel, 619; Ross v. Laughton, 1 Ves. & Bea. 349; 
 Clarke v. Terrell, I Smith, 399. See Barton v. Baynes, Barnes, 27. And it seera8 
 that the summary jurisdiction of the Court extends to the representatives of a 
 solicitor : Redfearn v. Sowerby, Swanst. 84. 
 
 5 Strong V. Howe, 1 Str. 621 ; s. c. 8 Mod. 339. 
 
 6 Goring V. Bishop, . 1 Salk. 87. See Wright v. lAIeyer, 6 Ves. 280. Russel's 
 case, Say. 125 ; s. c. 1 Ken. 12!). Lawson v. Dickenson, 8 Mod. 306. 
 
 7 In the King's Bench, if there be a cause in court, the papers may be obtained 
 upon a judge's summons ; otherwise there must be a motion in court for a rule to 
 shew cause" Anon. E. T. 1811, IMSS. ; 1 Arch. Pr. 24, 2d edit. 
 
 « Hughes V. Mayre, 3 T. R. 27.5 ; Ejc parte (irubb, 5 Taunt. 206 ; Marshall's 
 case, 2 Bl. Rep. 912; Sembl. s.p. Parker v. Marshall, Loilt, 271.
 
 108 LAW TRACTS. NO, I. [cAP. V. 
 
 whom they arc deHvered, to produce them, on demand, for inspection.' 
 So Lord Eldon, following such example, when deciding upon a sum- 
 mary application by petition, under the general jurisdiction of the 
 Court of Chancery over its officers, to take title-deeds out of the 
 hands of a solicitor upon payment of his demand, and praying a de- 
 livery of his bill of fees, observed, ** that there was no doubt but that 
 the Court exercised this jurisdiction long before the 2 Geo. 2, which 
 did little more than introduce the regulations under whicli the juris- 
 diction should be exercised;" and, adverting to the decisions of the 
 courts of law^ upon summary applications against officers of the re- 
 spective courts, was satisfied that the application might be made ; 
 and granted the order.-^ 
 
 An attorney is also obliged, when ordered to deliver up the 
 papers of his client, to hand over the r/?Y{/if-9 of deeds for which he has 
 charged and been paid, as well as the deeds themselves.'* 
 
 But it seems, as stated above, that, in the exercise of this whole- 
 some severity, it is an indispensable requisite that the deeds, &c. 
 should have come into the hands of the officer in the character of 
 attorney. The Court of King's Bench refused to proceed summarily 
 against a steward who was an attorney, to compel him to account 
 before the Master for receipts and payments in respect of mortgaged 
 premises, and to pay the balance to his employer, and to deliver up 
 title-deeds, papers and writings relating to the estate : this being the 
 proper subject of a bill in equity, and not a case for a mandamus to 
 compel a steward of a manor to deliver up court-rolls, in lieu of whicli 
 this summary proceeding had been adopted — the application not re- 
 garding his duty as an attorney.^ So, the same Court would not compel 
 an attorney, by a summary rule, to deliver up, on payment of his bill, 
 a lease, put into his hands for the purpose of making an assignment of 
 it, which, if improperly detained, would be the subject matter of a bill 
 in equity, or of an action at law, there being no cause in court, nor any 
 imputation against him of criminal conduct in his character of at- 
 torney.*' So, where an attorney held a deed as party and trustee; the 
 Court of King's Bench said, that they were not authorized to make 
 
 1 Hughes V. Mayro, 3 T. R. 275. 
 
 2 Ibid. 
 
 3 Ex parte Earl of Uxbridge, G Ves. 425 ; Ex parte Smilb, 5 Vcs. 7"(i ; Ex parte 
 Arrowsmith, 1.3 Ves. 124. 
 
 4 In re Horsfall, 1 Man. & Ry. 306 ; s. c. 6 Law Joum. K.B. 48. 
 ■'• Cocks II. Harmai), (i Kast, 40 1 ; s. c. 2 Smith, 103. 
 
 " In re Lo->vc, 8 East, 237.
 
 CAP. v.] RELATIVE TO ATTOIINIES AND SOLICITORS. 109 
 
 an order upon him to deliver up the deed.' And where an attorney 
 held deeds, &c. in his custody belonging to two co-defendants, the 
 Court of Common Pleas would not direct a reference to the protho- 
 notary to ascertain which of them he should deliver over to one de- 
 fendant on his paying the attorney's debt and costs.- The distinction, 
 it may be repeated, is, that where deeds, writings, &c. come into an at- 
 torney's possession in the ivay of his business, and in the character of 
 attorney, the courts of law and equity will, in a summary manner, 
 compel him to deliver them to the party, upon payment of what is 
 due ; but w hen they come into his hands, in any other manner, or on 
 any other account, than in his way of business, and character of at- 
 torney, the party must resort to his action at law or suit in equity. 
 
 There is no case, however, says Lord Eldon, where a solicitor 
 who has received papers from his client in a cause, has been suffered 
 to refuse the production of them in that cause; but, continues his 
 Lordship, though he cannot refuse to produce them, he may refuse 
 to part with them, or to produce them in any other matter -^ and 
 where a defendant's clerk in court had impounded the record of the 
 bill and office-copy till paid for, his Lordship prefaced the order for 
 production of the office-copy to be marked by the six clerks, by ob- 
 serving, that a clerk in court, or solicitor, having engaged in a cause, 
 and refusing to proceed witliout payment of his fees, cannot stop the 
 cause ; he may decline acting until paid, and not be compelled to 
 part with the papers, but he must not delay the progress of the suit ; 
 and the refusal authorizes the client to employ another clerk in court 
 or solicitor : and, although he cannot be compelled to part with 
 them, he must produce them for all purposes in the cause. And his 
 Lordship expressed his disapprobation of the refusal by visiting the 
 clerk in court with the costs of the application."* 
 
 J^. To the Bankrupt Laws. — The object of the bankrupt laws is 
 to encourage those who embark in trade, and to protect the interests 
 of their creditors. Attornies and sohcitors are not therefore liable 
 to the bankrupt laws, unless they combine some other capacity with 
 their own profession, so as to bring them within the pale of the laws 
 in question.5 g^t where such has been the case, they have been in- 
 variably considered amenable to the bankruptcy jurisdiction. Ac- 
 cordingly, when in conjunction with their own business they have 
 
 1 Pearson v. Sutton, 5 Taunt. 364. 
 
 2 Duncan v. Richmond, 7 Taunt. 391 ; s. c. 1 INloore, 99. 
 
 3 Ross V. Laughton, 1 Ves. & Bea. 350. 
 •1 Mayne v. Hawkey, 3 Swanst. 93. 
 
 5 See Rex v. the Mayor of Doncaster, 7 B. &• C. G-'iO ; fi Law Jomn. Suppl. a7.
 
 110 LAW TRACTS. NO. I. [cAP. V. 
 
 carried on the trade of scriveners, which is the most common instance 
 that occurs, connnissions liave been u[)hekl against them. 
 
 It will, therefore, be expedient to examine the nature of the 
 business of a scrivener, then the relative character of a scrivener 
 and an attorney ; and, finally, to allude to such examples as may 
 appear the most apposite. 
 
 A scrivener was made amenable to the bankrupt laws by the statute 
 21 Jac. 1. c. 19. in the year 1623. This statute, the terms of which 
 are precisely re-enacted in the existing bankrupt laws of the 6 Geo. 4, 
 reciting that the number of bankruptcies, and the frauds invented 
 by bankrupts, had increased, enacted, that the statutes and laws 
 made against bankrupts should be beneficially expounded; and then 
 proceeded to declare who should be deemed bankrupts in the fol- 
 lowing words : — " All and every person or persons using, or that 
 shall use, the trade of merchandize by way of bargaining, exchange, 
 bartering, chevisane, or otherwise, in gi'oss or by retail, or seeking 
 his or her living by buying and selling, or that shall use the trade or 
 jyrofession of a scrivener, receiving other mens monies or estates 
 into his trust or custody, shall be accounted and adjudged a bankrupt 
 to all intents and purposes." Here it may be observed, that the le- 
 gislature did not consider the term scrivener, eo nomine, as presenting 
 any precise idea of the trading which it had in contemplation, for it 
 designates it as a trade or profession, and adds the further characte- 
 ristic of it — ^'* a scrivener, receiving other men's monies or estates 
 into his trust or custody." It is no improbable conjecture that the 
 scrivener was, as the name imports, the writer or drawer of contracts, 
 deeds and obligations ; and in those days, when the advantages of 
 reading and writing were not so generally diffused as at present, was 
 employed in many of the ordinary communications of mankind. It 
 was not the intention of the legislature to bring this description of 
 scrivener within the operation of the bankrupt laws ; the necessity 
 for it, indeed, being no greater than there is for subjecting to those 
 laws the conveyancer of the present day. But the scrivener, " who 
 received other men's monies into his trust or custody," was the money- 
 scrivener, with knowledge enough of ordinary forms to fill up the 
 usual securities of a bond, a judgment, or a mortgage.' He was the 
 person who, with that knowledge, offered himself as the depository 
 of other men's monies and estates, and as the agent for the profitable 
 
 1 Or, as Alscrip describes himself in the Heiress, Act 5. " Whoever wants Al- 
 scrip House, will find it in the neighbourhood of Furnival's Inn, with the noble 
 title of Scrivener in capitals, blank bonds at the window, and a brass knocker at 
 the door."
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. Ill 
 
 employment of it; to procure for those who had money to spare, 
 borrowers, and for those wlio had too httle, lenders ; to take care 
 that the payment of the loan was properly secured ; to receive the 
 instalments, or the interest, as they became payable. 
 
 Before the existence of banks, the establishment of government 
 funds and public stocks, and the various modes of investing the 
 surplus money of the wealthy, which have spi'ung out of a national 
 debt and extended commerce, this branch of trade must have been 
 most lucrative and extensive ; and, from the nature of it, called for 
 the application of the principle in bankrupt law, that upon the failure 
 of a money-scrivener there should not be a race of diligence among 
 the creditors, but an equal and speedy division of the effects. But 
 the circumstances which have been mentioned soon interfered with 
 its importance, and have at length entirely destroyed it. When the 
 nation, or the public companies, readily presented an unobjectionable 
 borrower, and the entry or transfer in their books a plain and simple 
 security, there was no necessity to employ the money-scrivener to 
 procure the one, or to prepare the other. 
 
 The consequence has been that other trades have gradually sprung 
 up more adapted to the alteration of the times, and have divided 
 among them the various component parts of the business of the scri- 
 vener. As far as the scrivener was the mere depository of money, 
 his business has been grasped by the banker; as far as he was the 
 procurer of loans, by the stock broker, the bill broker, and the money 
 lender. The attorney and the solicitor, whose profession strictly 
 and originally was confined to conducting the causes of their clients, 
 the one in the courts of law, and the other in the courts of equity, 
 attached to themselves such of the members of the dissevered scri- 
 veners, as were not appropriated by the rest. The trade as a distinct 
 trade has therefore ceased to exist; and, indeed, we have satisfactory 
 evidence upon this head.^ 
 
 1 Boswell, in his life of Johnson, mentions Jack Ellis as the last of the scri- 
 veners. " Johnson. — It is wonderful, Sir, what is to be found in London. The 
 most literary conversation that I ever enjoyed was at the table of Jack Ellis, a 
 money-scrivener, behind the Royal Exchange, with whom I at one period used to 
 dine generally once a week." Boswell, in a note, observes, " this Mr. EUis was, 
 I believe, the last of that profession called Scriveners, which is one of the London 
 Companies,* but of which the business is no longer carried on separately, but is 
 transacted by altornies and others. He died in December 1791." 
 
 * The Company of the Scriveners, an ancient and long-continued society, were 
 incorporated the 28th of January, in tlie Nth year of the reign of King James L— 
 Stowe's Smvey, Book 5. p. 220.
 
 112 LAW TRACTS. NO. I. [CAP. V. 
 
 In canvassing the relative situation of a scrivener and attorney, 
 and referring to those cases from ^vhich the rules appertaining to 
 them are extracted, it may be stated, that the banker would not be 
 an attorney, though he were occasionally to fill up bonds for his cus- 
 tomers ; nor does the attorney become a money-scrivener, though on 
 particular occasions he incidentally has the money of his clients to 
 lay out for them. He must be carrying on generally the business of 
 a money-scrivener ; that must be part of his knovt^n occupation. A 
 few insulated instances of that sort, occurring in the course of his 
 business as an attorney, would not bring him within the bankrupt 
 laws, for that would not be using the trade or profession of a scri- 
 vener, receiving other mens inonies or estates into his trust or cus- 
 tochj. But when the attorney is a depository of the money of other 
 persons, who come to him, not simply in his character of attorney, 
 but as a money-agent — where, for instance, he receives their money, 
 places it in his banker's hands in his own name, is trusted with it to 
 lay it out in securities, generally and at his own discretion, and he de- 
 mands a remuneration for so doing, he becomes substantially a money- 
 scrivener. But it is not to be inferred that an attorney assumes the 
 name of a scrivener merely because he receives money, and, by the 
 directions of his clients, invests it in securities, charging his legal fees 
 on the deeds, and professional compensation for his labours. The 
 distinction is, — that he must not make the receiving and letting out of 
 money his business and occupation, nor must he be in the habit of 
 taking a compensation for such putting out, beyond his professional 
 fees. Were it requisite to illustrate these general positions by a 
 detail of facts, no difficulty could be experienced. It will be suf- 
 ficient, however, for all purposes to advert to one or two leading au- 
 thorities. In the case of Adams v. Mallcin,^ an issue had been directed 
 by the Lord Chancellor to try whether an individual, against whom 
 a commission of bankruptcy had been issued, could be considered a 
 money-scrivener. It appeared, that the bankrupt had previously 
 practised as an attorney for many years, and that the plaintiffs, not em- 
 ploying a banker, deposited money and lodged bills with the bankrupt, 
 so as to have them placed in the hands of his bankers, which money 
 they received as occasion required. The bankrupt, however, was 
 
 1 Adams v. IMalkin, 3 Cain])b. 5.34 ; and see Hamson v. Harrison, 2 Esp. 555 ; 
 Ex parte Malkin, 1 Rose, 406 ; 2 id. 27; Inre Lewis, 2 Rose, 59 ; Hurd v. Brydges, 
 1 Holt. 654 ; Hutchinson v. Gascoignc, Ibid. 507 ; JE-r parte Warren, 2 Sch. & 
 Lefr. 414; Ex parte Burchall, 1 Atl;. 141 ; Ex parte Wilson, Ibid. 217; Willett 
 V. Chambers, Cowp. 814.
 
 CAP. v.] RELATIVE TO ATTORNIES AND SOLICITORS. 113 
 
 concerned for other individuals ; he had authority from one to spe- 
 culate in the purchase of lands ; he accordingly purchased a chapel 
 and some freeholds, part of which he afterwards resold, and a part 
 of the purchase money remained on mortgage. The bankrupt ac- 
 cordingly received the interest on the mortgage, and the rent on the 
 freeholds. He was employed by another to sell some property, 
 which he disposed of to a person, who gave bills in payment, and 
 whom the bankrupt afterwards assisted in raising money on such 
 bills, when they became dishonoured. He was likewise concerned 
 for the vendee in the last instance alluded to, and money passed 
 through his hands, but none was deposited with him. He also ne- 
 gotiated annuities, sold out stock, and raised loans, all which busi- 
 ness he transacted in the character of an attorney. It was contended 
 that these transactions constituted him a money-scrivener. But 
 Chief Justice Gibbs was of opinion, that, in all his dealings, he mei'ely 
 negotiated the sales of estates, drew deeds, received rents, and as- 
 sisted in procuring the loan of money ; and thought that it did not 
 appear that he was ever intrusted with the money of those or of any 
 other persons to lay out for them, at his discretion, although he was 
 sometimes the hand employed by one party to deliver money over to 
 the other when it was advanced. It is ridiculous (observed his 
 Lordship) to suppose that the transaction of such ordinary and 
 common business should constitute a money-scrivener. 
 
 3. Collateral Liabilities. — The rules governing the collateral lia- 
 bilities which an attorney is subjected to, are the same as prevail in 
 general cases.' Thus, attornies are bound by the acts and under- 
 taHngs of their agents, and are hable for their neglect.- So, what- 
 ever is done by the clerks of attornies, acting within the scope of 
 their employment, is binding upon their masters. If the authority 
 vested by the common and established usage of the profession be 
 exceeded, the master is of course no longer responsible ; his lia- 
 bihty ceases, and is at an end, the moment the clerk refrains 
 from adhering to the express nature of the power delegated to him. 
 It has been accordingly decided, that an attorney's clerk, by giving 
 a receipt for money on account, to a different person from him to 
 whom he gives credit, to enable such person to deceive others, does 
 
 1 An attorney, by giving a party leave to practise in his name, renders himself 
 liable for whatsoever improprieties the latter may commit : Anon. 12 RIod. 
 666. 
 
 -' Wallace v. Willinghatn, Barnes, 256 ; Collins v. Griffin, Ibid. 37. 
 
 VOL. II. <5
 
 Ill LAW TRACTS. NO. I. [CAP. VI. 
 
 not bind the master;' and it has been even stated,^ that payments 
 to an attorney's clerk as agent are unavailable. So, it being no part 
 of the general employment of an attorney's clei'k to demand money 
 on account of the principal from his clients, it was decided in the 
 case of Coles v. Bcll;^ that a replication of a subsequent demand and 
 refusal was not supported by evidence that the demand had been 
 made by the clerk to the plaintiff's attorney, inasmuch as he was not 
 authorized to give a discharge. 
 
 Sect. 2. — Duties and Liabilities of Clients. 
 
 Under this division of our subject there is little that claims our 
 attention. It will suffice to remark, that the client should be care- 
 ful as to the manner he instructs his professional adviser ; and to re- 
 mind the reader, that the attorney should be provided by his employer 
 with the pecuniary means of conducting the cause.'' 
 
 CHAP. VI. 
 
 RELATIVE TO THE LEGAL REMEDIES THAT MAY BE ADOPTED BY 
 
 ATTORNIES. 
 
 Sect. 1. — Relative to the Action at Law, and the Recovery/ of Costs. 
 
 Before proceeding to an examination of the present section, 
 it may be useful to state, that the fact of the attorney's being in 
 prison, which, it will be recollected,^ disables him from conduct- 
 ing proceedings during the period of his incarceration, does not pre- 
 vent him from suing by attachment of privilege for a debt due to 
 himself.'' The Courts have put this construction upon the acts of 
 the legislature, thinking that the sole object was, to prohibit an at- 
 torney from suing on behalf of other individuals.'' 
 
 1 Williams v. Goodwin, 2 Carr. & Payne, 257 ; s. c, not s. p., 4 Law Journ. 
 C.P. 141. 
 
 2 Ante, 69. 3 cited 1 Campb. 478. 
 4 Vide a7tte, 32. 5 Ante, 78. 
 
 6 Kaye v. Denew, 7 T. R. 671 ; Prior v. Moore, 2 M. & S. 605. 
 
 "^ This, it is evident, must have been the object of parliament in passing the 
 acts relative to this subject, for they have even permitted an action, which has 
 been commenced previous to the attorney's confinement, to be carried on to a 
 termination. And, in \Mietham v. Needham, Barnes, 46, where an attorney com- 
 menced an action before his imprisonment, the Court held, that he might, during 
 his imprisonment, institute proceedings on the bail bond.
 
 CAP. VI.] RELATIVE TO ATTORNIIiS AND SOLICITORS. 115 
 
 1st. Preliminary StcjJS. 1. Deliver// of Bill. a. When essential. — 
 By the stat. 2 Geo. 2. it has been already noticed,' that it is essen- 
 tial, to entitle an attorney to commence an action for the recovery of 
 any fees, charges, or disbursements, that a hill of the same should be 
 signed and delivered, to the party who has contracted the debt, one 
 month previous to proceedings being instituted. Reference must 
 be made to that part of the work for an explanation of the terms 
 used by the legislature, "fees, charges, or disbursements;" upon 
 a perusal of which, it will be seen when a bill must be delivered 
 previous to the commencement of a suit. 
 
 It must, however, be repeated in this place,^ that, where an account 
 consists of items, some of which are within the act, and others not, 
 that the attorney may recover for the latter, provided he abstain 
 from delivering any bill whatever ; but that if he deliver a bill con- 
 taining such items, and do so in an irregular and inefficient manner, 
 he will deprive himself of the right he would have otherwise en- 
 joyed, of suing without any reference to the provisions of the 
 statute. The decision of Hill v. Humphries,^ and which has been 
 already referred to,"* illustrates this position. That was an action 
 brought to recover the amount of a bill for business done by the 
 plaintiff as an attorney. The bill, among other taxable items, con- 
 tained two items, which could not be considered as " fees, charges, 
 or disbursements," at law or in equity. It was admitted, that a bill 
 had been delivered ; but it was insisted, that such preliminary step 
 had not been taken according to the directions of the act; and it was 
 urged, that the two items not being taxable, the plaintiff was entitled 
 to recover upon them, independent of the previous delivery of a 
 bill ; — the improper delivery being, it was said, tantamount to no de- 
 livery. The plaintiff was, however, nonsuited ; the Court laying 
 down the distinction that has been noticed, that such items might 
 have been recovered if no bill had been delivered at all ; but 
 that they could not be sued for, when a bill had been delivered 
 irregularly. 
 
 Although, therefore, a bill ordered for taxation, cannot be split, 
 so as to separate the taxable and untaxable items, it may in the in- 
 stance just mentioned. It would, however, appear to the author, 
 that an action could not be commenced for fees, charges, or dis- 
 bursements, intentionally omitting all untaxable charges, so as to re- 
 cover the latter in a subsequent suit. Such an attempt would prove 
 abortive, when intercepted by the rule, which interdicts the dividing 
 
 1 Ante, 62, n. ^ Et vide Drew v. Clifford, post. 
 
 3 2 B. & P. 343 ; s. c. 3 Esp. 254. *- ^^nle, G8.
 
 I IG LAW TIIACTS. NO. I. [CAP. VI. 
 
 of (Icinantls into ili:^tinct claims, and instituting separate actions. 
 The i)laintift" would, in such case, have been equally prepared to sue 
 for the untaxable as the taxable items. The only instances, it is 
 therefore submitted, in which such separation can be countenanced 
 by the Courts, are those, in which the plaintifF sues for the untaxable 
 charges, and cannot succeed for the whole of his demand, on account 
 of the provisions of the act. In that case, should the defendant in 
 a subsequent action plead judgment recovered, the plaintiff must be 
 prepared with evidence to shew that he was not in a situation to sue, 
 not having duly delivered his bill.^ 
 
 It is singular, that the Courts, according to the proposition already 
 stated, should have allowed the question, of what are, or are not, 
 taxable items, to be in any way influenced by the fact, of whether a 
 bill has been delivered or not. In suppcrrt of the rule, it might be 
 contended, that the bare delivery of a bill, the simple notification of 
 the nature of the attorney's claims, would make items taxable that^ 
 would not otherwise be subject to such an ordeal. But would not 
 such argument necessarily involve this anomaly, that the act of a 
 party might vary the interpretation to be given to the words of 
 a statute, and render it necessai'y, in order to arrive at a proper con- 
 struction of the act, to have previous recourse to the conduct of the 
 party, instead of to the clause itself? — viz. whether the party, in con- 
 sequence of the delivery of a bill, had not deemed certain charges 
 taxable charges; and, because he had done so, they were therefore 
 taxable ? 
 
 By the 6th section of the 12 Geo. 2. c. 13, the act passed in the 
 second year of the reign of King George the Second, for the better 
 regulation of attornies and solicitors, is declared not to extend to 
 those clauses appertaining to the delivery of bills of costs, to any bill 
 of fees, charges, or disbursements, due from any attorney or solicitor 
 to any other attorney or solicitor, or clerk in court. Questions on 
 this statute, of course, in general arise with reference to agency bu- 
 siness ; but, as a decision is extant, in which that was not the case, 
 it becomes necessary to notice the law on the subject in this place. 
 
 The rule, that the delivery of a bill is not requisite in cases of 
 this description, proceeds on the ground that the party sought to be 
 charged is cognizant of the nature of the items inserted in the bill. 
 With this impression, the Court decided the case of Ford v. Max- 
 well:- There, an action was brought against defendant in his capa- 
 
 « See 1 Vent. 73 ; 2 Keb. 617 ; s. c. 1 Lev. 4G4 ; 3 id. 248 ; 6 T. R. 607 ; s. c. 
 1 Esp. 401. 
 
 ^ I Esp. 420 ; s. c. 2 H. Bl. 589 : and see Jones v. Price, 1 Esp. 221 ; Doug. 
 199, 200, and the cases th^re cited in notis.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 117 
 
 city of attorney, to recover a remuneration for the transaction of pro- 
 fessional business antecedent to his admission. No bill had been 
 delivered according to the statute. The plaintiff had commenced 
 proceedings without attending to this formality, deeming the subse- 
 quent fact of the defendant's admission sufficient to bring him within 
 the construction that had been put on the act of parliament, reliev- 
 ing attornies from the necessity of such a prehminary step, where 
 the action was brought against another attorney. The Court said, 
 that the business having been transacted before the defendant was 
 admitted an attorney, made no difference, as it must be assumed that 
 defendant was competent to understand the nature of the charges in 
 the bill, and, if improper, to resist them. 
 
 The principle of this clause of the act has been followed in prac- 
 tice, by the Courts decreeing that a delivery is not necessary in cases 
 where an attorney, when defendant, merely wishes to avail himself of 
 ^e privilege of setting-off the amount of his bill. They have, in such 
 instance, confined the act to the bringing an action ; and have, more- 
 over, required that it should be bringing an action for business 
 done bij the attorney himself. The defendant must not, however, be 
 taken by surprise. It is sufficient, in such case, to deliver the bill time 
 enough for the plaintiff to have it taxed before trial.' 
 
 The point in italics requires a little attention. The attorney must 
 act as such, and not assume the character in consequence of a transac- 
 tion entirely unconnected with his professional avocations. To de- 
 monstrate this, the following case may be perused. The defendant 
 being in custody for debt, the plaintiff, an attorney, gave an undertak- 
 ing for debt and costs, which he was ultimately obliged to pay. He 
 then clamied to be indemnified by the defendant, and instituted pro- 
 ceedings accordingly. On his getting a verdict, a rule was obtained 
 to set it aside, on the ground, that the money claimed was a disburse- 
 ment as an attorney, and that the plaintiff should have delivered a 
 bill, as prescribed by the statute 2 Geo. 2. c. 23. s. 23. But the 
 Court was of opinion, that the statute did not apply to cases 
 like the one before them, where the attorney acted as a mere 
 stranger.^ 
 
 An attorney cannot, however, avoid complying with the requisi- 
 tions of the act, by waiving part of his demand ;^ or by agreeing to 
 charge at a certain rate per day, besides his expenses \^ or on the 
 
 1 Bulman i;,Birkett, 1 Esp. 419 ; Martin v. Winder, Doug. 199, n. 
 'i Protheroe v. Thomas, 1 Marsh. 539; s. c. 6 Taunt. 196. 
 
 3 IVliller V. Towers, Peake, 102. 
 
 4 Tidd's Costs, 77-
 
 118 LAW TRACTS. NO. I. [CAP, VI. 
 
 principle of " no cure, no pay."' In all these cases bills should be 
 deliverctl. 
 
 It remains to mention, that it is not necessary for the executor or 
 administrator of an attorney, to deliver a bill of costs for business 
 done by his testator or intestate, before the commencement of an 
 action. The statute is confined to actions brought by the attorney 
 himself, and does not extend to his personal representatives.^ A 
 difference, it will be thus perceived, exists as to the delivery before 
 action, and the taxation of a bill after the death of the attorney.^ 
 
 b. How prepared.^ — It was at one period a matter of doubt in what 
 precise manner an attorney's bill should be prepared, so as to render 
 effectual the object the legislature had in view in requiring its deli- 
 very. Abbreviations were often made use of, to such an extent, as 
 to nullify the intent of the framers of the parliamentary enactments 
 on the subject. Thus, although the 2 Geo. 2. required the bill to be 
 written "in a common legible hand, and in the English tongue, ex- 
 cept law terms and names of writs, and in words at length, except 
 times and sums,"^ and " to be subscribed with the proper hand of 
 the attorney,"^ it was found necessary to declare, by the 12 Geo. 2. 
 0. 13. s. 5, that '* it shall and may be lawful to and for every attorney, 
 clerk in court, and solicitor, to write his bill of fees, charges, and 
 disbursements with such abbreviations as are now commonly used in 
 the English language." 
 
 An attorney's bill may be therefore prepared with abbreviations, 
 provided they be plain, usual, and intelHgible.' It is not even ne- 
 cessary that they should be plain and intelligible to the client. It 
 suffices if they be so to a professional man.** This, it is humbly 
 submitted, is a matter of regret. The object the legislature con- 
 templated seems unattained. Why force a client to have recourse 
 to professional aid to edify him on the very subject it was the sole 
 end of the legislature in passing these acts of parliament to effect? 
 
 ' Tabram v. Home, 6 Law Journ. K.B. 24. 
 
 - Griffith V. Squire, Ca. Prac. 58 ; Barratt v. Moss, 1 Carr. & P. 3; Andr. 276 ; 
 1 Barnard, K.B. 433. 3 Vide ante, 68. 
 
 ^ It may be useful to observe, that a bill of fees, spun out by a solicitor to an 
 extravagant length will be referred for impertinence, or scandal if it be made the 
 vehicle of abuse: Rowe v. Wood, 1 Jac. & Walk. 327 : the general rule with re- 
 gard to the purity of the proceedings of the Court of Chancery, as expressed by 
 Lord Eldon, being " that there can be no one proceeding before the Court, which, 
 if made the vehicle of scandal or impertinence, the Court will not e-xamine with 
 a view to a reference : Erskinev. Garthshore, 18 Ves. 1 14. 
 
 5 Vide ante, 62, n. 6 Vide ibid. 
 
 7 Rex V. Jackson, Prac. Reg. 2,1. « Reynolds v. Caswell, 4 Taunt. 193.
 
 CAP. Vr.] RELATIVE TO ATTOIINIES AND SOLICITORS. 119 
 
 The meaning to be affixed to the words used in the statute, " such 
 abbreviations as are noiv commonly used in the English language" it 
 might be fairly argued, is, such abbreviations as a cHent, possessing a 
 common understanding, and able to read and write his vernacular 
 tongue, can comprehend. 
 
 In making out the bill, the items composing the aggregate amount 
 should be definitely ascertained. It will not suffice, for instance, to 
 charge the costs of an action brought by the attorney for his client 
 at one sum in the aggregate, although the costs in that action had 
 been taxed at that sum as between party and party, i But, where 
 there are two actions, in which there has been exactly the same 
 course of proceeding, and the same charges are proposed, it is not 
 necessary that the items should be repeated.^ And it has been 
 held, that although part of an attorney's bill be not set out as di- 
 rected by the 2 G. 2. and therefore not recoverable, still the residue 
 of the bill, as to which the provisions have been complied with, may 
 be recovered.^ 
 
 A mistake, it may be observed, in the date of items in an attor- 
 ney's bill, which does not mislead,^ does not vitiate its delivery. 
 
 c. When to he delivered. — A question has been raised as to the time 
 a bill of costs ought to be delivered. No doubt can be entertained 
 upon looking at the act.^ The period prescribed is " one month." 
 Now, in the construction of statutes, it is an universal rule, that 
 where the term " month" is used generally, its legal meaning and 
 import is always taken to be a lunar month. It has been accord- 
 ingly held, in the case alluded to, to be a lunar month. 
 
 d. To whom, and how to be delivered. — The bill, it is directed by 
 the act,*' must be delivered *' to the party or parties to be charged 
 therewith, or left at his or their dwelling-house or last place of 
 abode." 
 
 If the bill is delivered to the client himself, it must be left with 
 him, and not taken back again, though he should acknowledge 
 the debt and promise to pay ; the statute, which, it must by this 
 time have been seen, is construed liberally in favour of the client, in- 
 tending, that he should have due time to examine and advise upon 
 the charges -^ nor would it be sufficient to prove that a copy of the 
 
 1 Drew and others v. Cliflford, 2 Carr. & P. G9 ; s. c. 1 Ry. & Moody, 280. 
 
 2 Allison V. Rayner, 5 Law Journ. K.B. 173. 
 
 3 Drew V. Clifford, 1 Ry. & Moody, 280. 
 
 4 Williams<v. Barber, 4 Taunt. 806. & Hurd v. Leach, 5 Esp. 1G8. 
 
 6 Vide ante, 62, n. 
 
 7 Brooks V. Mason, 1 H. Bl. 290 ; Crowder v. Shee, 1 Campb. 436.
 
 130 LAW TRACTS. NO. I. [cAP. VI. 
 
 bill was shewn to the client, and the several charges explained, 
 upon which he admitted the debt, for the words of the statute are 
 imperative.' 
 
 Personal service not being, however, expressly enjoined by the 
 act, it has been holden, that the delivery of a bill to an agent ap- 
 pointed to receive it;*' or to a person appointed attorney in the place 
 of the former attorney discharged;'* is within the statute. Thus, 
 where two persons are liable to an attorney for business done on 
 their joint retainer, it is sufficient for him to deliver a copy of his bill 
 to one of them, from whom he received his instructions, and to 
 whom the management of the business was intrusted by the other; 
 the dehvery of a bill to one of several joint-contractors being a no- 
 tice to all of them; and the legislature recognizing that law by 
 making use of the words *' dwelling-house," and " bill," in the singu- 
 lar, instead of the plural number.'* So, where several parties were 
 sued who had a joint interest to defend, but a separate interest as 
 to the amount, and the jury found a "joint retainer of the attorney, 
 the Cour.t decided that the delivery of one bill to the party from 
 whom he received the retainer, was sufficient to satisfy the statute.^ It 
 would, however, seem, that had the bill in the two last cases been de- 
 livered to the parties who did not intermeddle, it could not have been 
 made available as a good and valid delivery, as such parties could not 
 be considered as having sufficient authority to receive it, nor would 
 they be likely to know what fourulation there was for the charges in 
 the bill.'' The delivery of a bill has been also deemed sufficient, 
 where it was made to the attorney of the party so charged, the latter 
 having himself afterwards attended the taxation.'^ By doing so he 
 recognized the agency of his attorney. 
 
 In stating the result of these cases, the opinion of Lord Ellen- 
 borough, in the case of Vincent v. Slay maker, ^ must not pass unob- 
 served, in which he held, in opposition to the opinion of Mr. Justice 
 Grose, Le Blanc, and Bayley, that, on a change of attornies, the 
 delivery of a bill under a Judge's order to the new solicitor was not 
 such as would satisfy the words of the act, and the views of its 
 
 1 Crowder v. Shee, 1 Campb. 437 ; Oxenham v. Leman, 2 D. & R. 461. 
 
 2 Finchett v. Jarratt, 2 Campb. 277. 
 
 •'' Vincent v. Slaymaker, 12 East, 372. 
 
 4 Per Cur. 2 D. & R. 461. 
 
 5 Oxenham v. Leman, 2 D. & R. 461. 
 ^ Finchett v. Jarratt, 2 Campb. 277. 
 
 7 Warren v. Cunningham, 1 Gow, T\. ^ \2 East, 3/2, ut supra.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 121 
 
 framers. His Lordship confined the construction to be put upon 
 the act, to a very narrow compass, and delivered it as his opinion, 
 that the legislature intended to prevent the client from being taken 
 by surprise, upon tlie demand of his attorney ; and therefore meant 
 to secure to him a personal communication of such demand, before 
 any action was commenced for it, in order that the bill might be 
 drawn under his own vigilant observation; and observed, that the 
 defendant might be viewed as having reposed confidence in his new 
 attorney for all matters arising within the scope of his employment, 
 after he was constituted such attorney, but not with reference to 
 ^1 his former business ; that it could not be therefore intended, 
 that notice to the particular attorney could bind his client for gene- 
 ral purposes, out of the particular suit, for which he was retained ; 
 that, as the statute expressly required the delivery to be made to 
 the party to he charged unth the demand ^ the delivery which had 
 been made to the attorney in the case before him, was not a literal 
 compliance with the statute ; and that he was fearful to depart in 
 such a case from the letter of the act, not knowing how far implied 
 deliverances might be carried beyond the meaning of the legis- 
 lature. 
 
 It has been thought proper to refer in this manner to his Lord- 
 ship's reasoning, more on account of the comparative weight which 
 /anything proceeding from such a quarter naturally possesses, than 
 from any probability of its being acted upon in future ; as, in the de- 
 cisions M'hich have since occurred, none of the judges have evinced 
 that delicacy, in admitting the doctrine of implied deliverances, 
 which seemed so much to influence Lord EUenborough in his judg- 
 j^^ent; — it being, besides, a general rule, that a delivery to an 
 ao-ent properly authorized, is a delivery to the party himself; and, 
 there being nothing in the act to contravene such acknowledged 
 principle ; the statute not saying, that the delivery should be to the 
 client in person, but leaving it at large, according to what should be 
 deemed a delivery to the party, in point of law, — it would be difficult 
 not to concede, that a dehvery under a judge's order to the attor- 
 ney, who is the party's agent in the cause for all matters within the 
 scope of his employment, as an attorney so constituted, is 2^r'md 
 facie evidence, at least, that the attorney was authorized to take out 
 such orders by his client ; and threw the onus upon the client, of 
 shewing that his attorney had no such authority. 
 
 If the bill be not delivered to the party, it must be left for 
 him at his dwelling-house, or last place of abode. If it be left 
 
 VOL. IT. li
 
 lOO LAW TRACTS. NO. I. [cAP. VI. 
 
 at tlie counting-house, it will be deemed tantamount to no deli- 
 
 very.' 
 
 iind. In u'/tat Court to sue. — At the commencement of the third 
 chai)ter of this work,2 it was shewn, that an attorney is exempted 
 from the jurisdiction of the Courts of Requests. He may, accord- 
 ingly, institute proceedings in the superior courts, independently of 
 any reference to these tribunals."' 
 
 .Jrd. B?/ and against whom to be brought. — The general rules 
 which govern suits touching individuals, parties to actions, prevail in 
 suits instituted by attornies. 
 
 Where B., being desirous of raising a sum of money upon mort- 
 gage, employed an attorney for the purpose, who applied to A. an 
 attorney, telling him, at the same time, the name of his principal, 
 and A. agreed to advance the money on behalf of a client, but ulti- 
 mately the negotiation failed from a defect of title : — Held, that A. 
 could not maintain an action against B. for his fees, although it was 
 proved to be the practice for the proposed borrower to pay the ex- 
 penses of the proposed lender ; the course being for the attorney of 
 the latter to send his bill to the attorney of the former, who, if the 
 bill were reasonable, recommended his client to pay it. 
 
 The decision of Ambrose v. Roive^ may be mentioned, in which it 
 M-as decided, that if a person retains an attorney for another, the 
 former is the party who is bound to see that the attorney's charges 
 are liquidated. 
 
 1 Hill V. Humphreys, 3 Esp. 254. 2 jiyUe, p. 44. 
 
 « See Hillyard's case, 1 Mod. 118; s.c. 3 Keb. 386; Therrsby u. Warren, Cro. 
 Car. 159. 
 
 It has been held, that a clerk in court may maintain a suit in equity against 
 his client, the soHcitor, for his fees, in the court to which he belongs : Barker v. 
 Dacie, G Ves. jun. 681. One of the reasons assigned in favour of the clerk in 
 court was, the nature of the business, and the manner of transacting it. It will 
 rest frequently more in the knowledge of the solicitor what he is indebted to the 
 clerk in court, than in the knowledge of the clerk in court what demand he has ; 
 and there may be an account, which is to be settled by a production of papers 
 furnished to the solicitor by the clerk in court, which will regulate the demand 
 upon the solicitor. This partakes, in some degree, of the nature of a bill for 
 discovery, as well as reUef, and the case is therefore brought within the jurisdic- 
 tion of a court of equity ; but this reason can scarcely apply to a case between a 
 solicitor and his client, and probably, therefore, a bill could not be sustained at 
 his suit, even for fees due on proceedings in the court where the bill was filed. 
 
 4 Rigley V. Dayking, 2 J. & J. 83; ib. 160. 
 
 '•> Skin. 217; s. c. 2 Show. 21.'
 
 CAP, VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 123 
 
 An attorney may sustain an action for fees due for suing out a 
 commission of bankrupt, without being admitted a solicitor in Chan- 
 cery. ' 
 
 Where the plaintiff and the defendant were both members of a 
 joint stock company, and after its dissolution, the defendant was 
 sued by the creditors, and retained by the plaintiff, the Court held, 
 that the plaintiff could not recover his bill of costs, as he was jointly 
 liable with the defendant to contribute to the expense of defending 
 the actions.^ 
 
 4th. Of the Process. — The immunity that attornies enjoy of suing 
 by a process peculiar to themselves has been already noticed. Upon 
 referring to that portion of the work,^ it will be however found, that 
 the particular species of process was not specified, or its nature and 
 properties pointed out. Its existence was merely mentioned, and 
 those circumstances narrated, under which the attorney is no longer 
 able to claim such privilege.'* 
 
 1. In the Court of Kings Bench. — The form of process adopted 
 in the Court of King's Bench, is denominated an attachment of pi'i-/ 
 vilege. It is a judicial writ, commanding the sheriff " to attach the 
 defendant, so that he have him at Westminster on a day certain, to 
 answer the plaintiff" of a plea of trespass on the case, or in debt, &c. 
 as the form of action may be ;^ or, in bailable actions, it may be and 
 usually is made out in trespass with an ac etiam, in the same manner 
 as a bill of Middlesex.*' 
 
 In non-bailable actions a notice to appear is added at the foot of 
 the copy served, stating the intent of the service of the process to 
 be, "that the defendant may appear at the return of the writ in the 
 Court of King's Bench, in order to his defence in the action."'' Let 
 this copy be served personally on the defendant.^ 
 
 1 Wilkinson v. Diggell, 1 B. & C. 158 ; s. c. 2 D. & R. 302. 
 
 2 Milbiu-n V. Codd, 1 M. & R. 238 ; s. c. 7 B. & C. 4 19. 
 
 3 A?ite, 37 to 44. And, it may be here mentioned, that, where an attorney has a 
 cause of action against a resident member of either univei'sity, he may sue him 
 here by attachment of privilege, notwithstanding such member's privilege of 
 being sued in the University Courts : and see Hardr. 188; Man. Ex. Pr. 145. 
 
 4 Should the attorney sue by attachment of privilege, where he is not entitled 
 to do so, it will be error: Drew v. Rose,' 2 Ld. Raym. 1398; or the Court, upon 
 application, will set aside the proceedings for irregularity : see Nabb v. Smith, 
 6 M. & S. 324 ; s. c. 2 Chit. Rep. 396 ; 4 D. & R. 73. 
 
 6 See Callaghan v. Harris, 2 Wils. 392. 
 
 « 1 Tidd'sPr. 319, 9th edition; 1 Arch. Pr. K.B. 117, 2nd edition. 
 
 ' See the form. Arch, Forms, 273 ; and Tidd's Appendix. 
 
 8 2 Arclv Pr. K.B. 3nd edition.
 
 121' LAW TRACTS. NO. I. [CAP. VI; 
 
 In order to sue out tliis writ, it is necessary to make out a prcecipe 
 for it; — it being a rule in the Court of King's Bench, that "every 
 attorney sliall leave a prcecipe with the signer of the writs, containing 
 the defendants' names, not exceeding foiir in each writ, with the re- 
 turn and day of signing such writ, and the agent's or attorney's 
 name who sued out the same, and that all such 2)raicipes shall be 
 entered on the roll, where the prcecipes of latitats, and all other 
 writs issuing out of this court, are entered ; and the officer that signs 
 the writ in this court, shall not sign such attachment till a prcecipe 
 be left with him for that pui'pose."' Besides the prcecipe^ it is also 
 requisite in bailable actions to file with the signer of the writs the 
 affidavit to hold to bail.'^ 
 
 But, when an attorney sues by attachment of privilege, it is not 
 necessary to indorse his name on the writ; the statute 2 G. 2. 
 c. 23. s. 22, which requires such indorsement, extending only to 
 cases where the attorney sues for another person. ** 
 
 In bailable actions, indorse the attachment thus : ** Bail by affi- 
 davit for £ — 1st January 1829.'"* Indorse also the place of abode 
 and addition of the defendant, or such other description as you may 
 be able to give of him.^ Obtain a warrant on the attachment, at the 
 sheriff's office, and give it to the officer, who will thereupon execute 
 the writ. 
 
 2. In the Court of Common Pleas. — The process which an attor- 
 ney, suing as an officer of this court, has recourse to, bears the same 
 appellation as in the Court of King's Bench, viz. an attachment of 
 privilege. It is, however, in the nature of an original writ, and must 
 have fifteen days between its teste and return.** 
 
 This writ should be made returnable on a day certain in full 
 term.'^ But, where it was made returnable after the essoign day, 
 and before the quarto die post, the Court allowed it to be amended 
 on payment of costs.® 
 
 1 R. H. 20 Geo. 2. K.B. ; and see i Ken. 394. 
 
 ^ Arch. Pr. 11/, 2n(l edition; which affidavit may be sworn before such officer, 
 12 Geo. 1. c. 29. 
 
 •* Fields V. Lewis, 4 T. R. 276. And an attorney, plaintiff', may sue by common 
 process, and indorse his own name on the copy as the attorney, and may after- 
 wards declare by another attorney : Jackson v. Barnard, 7 T. R. 35. 
 
 ■* 2 Arch. Pr. K.B. 117, 2nd edition ; and see Ware v. Rackett, Barnes, 30. 
 
 5 R. H. 2 & 3 Geo. 4. 
 
 « Barnes, 410; s. c. Ca. Pr. 149; Hayward u. Denison, Pr. Reg. 438; ITidd's 
 Pr. 320. 9tli edition. 
 
 7 Adams v Luck, G Moore, 1 13 ; s. c. 3 B. & B. 25. ^ \ Wils. 1 %7,
 
 CAP. VI.] KELATIVH TO ATTORNICS AND SOLICITORS. 125 
 
 Tlie practice in suing out the writ in this court is regulated by 
 two rules of court, one of w-hich declares, that " no attorney shall 
 sue out an attachment of privilege at his own suit, nor shall the same 
 be sealed, unless it be first stamped' or signed by the clerk of the 
 warrants, or his deputy, for which no fee is to be paid, to the intent 
 to shew that such person is an attorney of this court, duly entered 
 and continued on the roll of attornies."^ The other rule is similar 
 to that in the Court of King's Bench, and orders, that " every 
 attorney who shall sue out a writ of privilege against any defendant, 
 shall leave a prcecipe at the Prothonotary's office, with the de- 
 fendants' names, not exceeding four in the whole, and the return- 
 day thereto, and the day of signing the same, together with the 
 agent's or attorney's name who sues out the same ; and that such 
 prcecipe shall be entered by the Prothonotaries upon a remem- 
 brance roll in their respective offices, to be kept for that purpose, 
 without fee or reward ; and that the Prothonotaries do not sign any 
 attachment of privilege without such prcecipe be left in the office at 
 the time of signmg thereof."^ The practice, therefore, observes 
 Mr. Tidd,^ as governed by these rules, is to take the prcecipe and 
 writ to the Prothonotary's clerk, who will sign the writ gratis, keep- 
 ing the proEcipe, after which the writ is marked by the clerk of the 
 warrants, and then sealed. . 
 
 3. In the Court of Exchequer. — In the Exchequer of Pleas, the 
 process adopted by attornies is designated a venire facias, or capias 
 of privilege. 
 
 5th. Holding to Bail.. — An attorney was formerly permitted to hold 
 the defendant to special bail, upon an attachment of privilege, for fees 
 or disbursements, however trifling.^ But, since the statutes for pre- 
 venting frivolous and vexatious arrests, the defendant cannot be 
 arrested or holden to special bail, unless the cause of action amount 
 to 20/. or upwards.'' 
 
 1 Std vide b Geo. 4. c. 4 1 . 
 
 2 R. T. 9 W. 3. C.P. ; and see R. T. 29 Car. 2. Reg. 3. C.P. 
 
 3 R. H. 11 Geo. 2. Reg. 2. C.P. ; Frogatt v. Tapscott, 2 Bl. Rep. 91'J ; and see 
 Webster v. Holme, Barnes, 31. 
 
 ■1 1 Tidd's Pr. 320, 9tli edition. 
 
 5 R. M. 1654. s. 9. K.B., R. M. 1G54, s. 12. C.P. ; Gilb. K.B. 246; Gilb. C.P! 
 36 ; Tidd's Pr. 320, 9th edition. 
 
 6 As to the affidavit in such cases, see Petersdor£F's Bail, Part I. 
 
 If a defendant be arrested by an attorney for fees after a bill of costs has been 
 delivered to him, without being signed, he cannot be diseharged out of custody on 
 entering a common api^carance in the Court of Common Pleas--, as the want of such
 
 1:^0 LAW TRACTS. NO. I. [CAP. VI. 
 
 Gth. P/i'aclings. I. Declaration, a. 7 mie for declaring. — In the 
 Court of King's Bench, the time allowed for declaring upon an at- 
 tachment of privilege, is the same as upon a bill of Middlesex or 
 latitat.^ 
 
 h. Statement of the Term. — Where the month, as directed by the 
 statute to elapse between the delivery of the bill and the commence- 
 ment of the action, expires after the first day of the term, the decla- 
 ration should not be entitled generally of the term. A special memo- 
 randum is indispensably requisite ; a general title, relating to the 
 first day, is full term.' And, indeed, it would seem to be advisable 
 in all cases, that the pleader should entitle his declaration specially 
 of the day on which it is filed or delivered, so as to admit of proof 
 of a new cause of action, or of a promise or acknowledgment after 
 the issuing of the process, and after the essoign, or first day of 
 term.^ 
 
 c. Venue. — Should the action be of a local description, the attor- 
 ney is of course bound to lay it in the county in which the cause of 
 action arose. In respect to transitory actions, it may be remem- 
 bered,"* an attorney enjoys a peculiar privilege. 
 
 In general, if a plaintiff bring a transitory action in any other 
 county than that in which the cause of action arose, the defendant, 
 on application to the Court, founded on an affidavit, that " the 
 plaintiff's cause of action (if any) arose in the county of B., and not 
 in the county of A.," (where the action is brought) "or elsewhere, 
 out of the said county of B.," may have the venue changed to the 
 county where the cause of action really arose. But an attorney has 
 the privilege of laying his venue in the county of Middlesex, and the 
 Courts will not permit the defendant in such case to change it, even 
 upon the usual affidavit.* 
 
 If the venue be not, however, laid in the county of Middlesex, but 
 in some other county, as in London f or the attorney be not duly 
 privileged ; or, though privileged, sue as a common person, by origi- 
 
 signattire will be a defence to the action, on producing the bill at the trial : 
 4 Taunt. 806. 
 
 1 1 Tidd'sPr. 32], 9th edition; 2 Arch. Pr. 118, 2nd edition. 
 
 2 See Dodsworth v. Bowen, 5T.R.325; 1 T.R. 216; 2 Bl. Rep. 735; Carth. 
 113; 1 Saund. 40, n. 1. 
 
 3 See 4 Moore, 425 ; 4 East, lb; 7 T. R. 4. 4 Jnte, p. 37. 
 
 * Pope V. Redfearne, 4 Burr. 2027; Dent v. Lambert, Pr. Reg. 418; Pye v. 
 Leigh, 2 Bl. Rep. 1065; Downes v. Brian, ibid. 993; Yeardley v. Roe, 3 T. R. 
 573; Pitcher v. the Sherifi" of Monmouth, 2 Marsh. 152; Anon. 2 Vent. 47. 
 
 " 2 Salk. 668 ; 7 Taunt. 140; s. c. 2 Marsh. 426.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 127 
 
 nalor otherwise;! or en autre droit, as executor or administrator, or 
 jointly with his wife or other persons ;2 he is no longer entitled to 
 this immunity, apd the Court will in no case suffer him to use his 
 privilege so as to oppress a defendant.^ And, where an attorney 
 sued by attachment of privilege for words spoken in Wales, and the 
 venue was laid there, and the plaintiff did not recover a verdict for 
 ten pounds, — it was held, that a suggestion might be entered on 
 the roll, that the defendant was resident in Wales, &c., in order to 
 entitle the defendant to enter a nonsuit under the statute 13 Geo. o. 
 c. 51. ss. 1, 2.^ 
 
 d. Commencement of Declaration. — The commencement of the 
 declaration is different from what it is in other cases. It states the 
 character in which the attorney sues. ' This, it will be recollected, 
 is indispensable. Its omission will deprive the attorney of asserting 
 his privilege, and will be considered a complete waiver of it.^ His 
 presence in court, and consequent immunity to sue as one of its 
 officers, is set out.*" 
 
 e. Subject Matter of Declaration. — The subject matter of the ac- 
 tion must be disclosed according to its specific nature. Thus, where 
 an attorney makes an agreement to conduct an action for a specified 
 sum above his costs, subject to certain contingencies, he must de- 
 clare on it specially.^ 
 
 Where the work and labour for which the attorney seeks to be re- 
 munerated, is the prosecution or defence of suits at law or in equity, 
 as the preparation of deeds, or has been incurred in undertaking 
 journies in the discharge of his professional duties, the common 
 indebitatus and quantum meruit counts will suffice. The work and 
 labour, and money counts, must be of course added.^ 
 
 Where a declaration contained two counts for work and labour as 
 
 1 Ca. Pr. 132, 145; Welland v. Fruraent, Pr. Reg. 419; s. c. Barnes, 4/9; 
 Mounsey v. \¥atson, 7 B. & C. 683. 
 
 2 R. M. 10 Geo. 2. Reg. 2. (c.) K.B. ; et vide ante, p. 38, 2>9. 
 
 3 Tomlinson v. Harrison, cited 1 Tidd's Pr. 606, 9th edition. 
 
 4 Evans v. Jones, 6 T. R. 500. Had the venue been laid in Middlesex, it might 
 have made a difference, ibid. 
 
 This determination was before the passing of the statute 5 Geo. 4. c. 106. ss. 19, 
 20, by which the above act of parUament was repealed, and other provisions sub- 
 stituted in lieu thereof. 
 
 6 Ante. ^ See Forms, 2 Chit. PI. 
 
 7 Guy V. Gower, 2 Marsli. 273. 
 
 8 Ambrose v. Rowe, Skin. 218 ; s. c. not s. p. 2 Shower, 21. See a reference to 
 precedents in Petersdorff's Index to Precedents, tit. Attorney, Civil Division.
 
 If28 LAW 'lltAOTS. NO. I. [cM*. VI. 
 
 an attorney, and two others for work and labour generally, and the 
 usual money counts, the Court refused to strike out either of them, 
 as being unnecessary or superfluous.' 
 
 f. Conclusion of the Declaration. — The conclusion of the declara- 
 tion is the same as in other cases. 
 
 2. Subsequent Pleadings. — The time limited for pleading, and all 
 the remaining proceedings in the action, are the same as in ordinary 
 cases by bill. 
 
 Under the statute of 3 Jac. 1. c. 7, it was a good and valid plea, 
 that defendant had not slelivered his bill according to the direction 
 of the act,' but not to the whole declaration, where there was a 
 count on an insimul computasset.^ This absence of compliance 
 with the statutory regulations is now, however, made the subject of a 
 nonsuit ut the trial, and not introduced upon the record in the form 
 of a plea. 
 
 It remains to mention, that in the Court of King's Bench, the at- 
 tachment of privilege at the suit of an attorney is in the nature of a 
 latitat ; and that, in replying it to a plea of the Statute of Limitations, 
 the ])laintiff must set forth the continuances."^ In the Court of Com- 
 mon Pleas it is, however, in the nature of an original. It is, in such 
 case, accordingly sufficient, in a implication to a plea of the Statute 
 of Limitations, to shew the teste of it, without the continuances.*'* 
 
 7th. Evidence. \. On the part of the PlaintiJJ\ a. Proof of 
 Retainer. — In an action upon an attorney's bill, the plaintiff* must 
 prove his retainer by the defendant. This may be substantiated, by 
 shewing that the defendant attended at his office, and gave directions 
 as to the business to be transacted. A positive retainer in respect of 
 the specific business, is however, in many cases, unnecessary. '^ Thus, 
 where it appeared that the plaintiff was not the regular attorney of 
 the defendant, but employed by him to pay a particular sum awarded 
 by an arbitrator ; that the plaintiff at the time he received the money 
 apprised the defendant that he should have no more trouble in 
 
 ' Bennett v. Brindley, 9 Moore, 358. 
 
 2 Brookes v. Hague, 1 Salk. 86 ; s. c. Sir T. Raym. 245. 
 
 •' Gordon v. Powell, Carth. 67; s. c. Comb. 126. 
 
 ^ Rudd V. Berkenhead, 1 Show. .366; s. c. Carth. 144 ; s. c. 2 Salk. 420, cited 
 in Finch v. Wilson, 1 Wils. 167. And an attachment of privilege is not a conti- 
 nuation of a bill of Middlesex, so as to avoid the Statute of Limitations : 3 T R 
 662. 
 
 •' 1 Wils. 167. 
 
 G Vide ante, p. 33, 4, 5; and see Hellings v. Gregory, 1 Carr. 627 ; Abbott v. 
 Rice, 4 Bing. 132.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 129 
 
 the business, upon whicli the latter told the former " to do the 
 needful ;" that mutual releases had been directed by the arbitra- 
 tor, and that the plaintiff prepared the release, which defendant 
 refused to pay, and for whicli an action was brought : — Lord Kenyon 
 said, that the plaintiff was directed "to do the needful," which 
 clearly authorized him to prepare the release consequent upon the 
 award. ^ So, a retainer to commence a suit which abates, is evi- 
 dence of a retainer to commence another action.- 
 
 But, where several inhabitants of a parish attended a special 
 vestry, and signed resolutions, by which they ordered an indictment, 
 brought against the inhabitants to compel them to repair a road 
 within the parish, to be opposed ; and that the surveyor of the high- 
 ways should take the necessary steps for carrying such order into 
 effect; and the surveyor accordingly employed an attorney for that 
 purpose ; — the Court held, that the persons who had signed the re- 
 solutions were not personally liable to the attorney for the charges 
 incurred in resisting the indictment.** 
 
 1 Dawson v. Lawley, 4 Esp. G15. 
 
 2 Crook V. Wright, 1 R. & iVI. 278 ; xed vide Griffiths v. Tattersall, MSS. K. B. 
 July, 1829. '» 
 
 An observation of Lord Eldon's may be here subjoined. The point before his 
 Lordship was with reference to a solicitor taking upon himself to file a bill in the 
 name of a client, without due authority for that purpose. Upon an application 
 to dismiss the bill with costs. Lord Eldon observed, that if the plaintiff wished 
 to have the bill dismissed, it will be so ordered, and the solicitor directed to re- 
 imburse the plaintiff all the expenses occasioned by the bill being filed without 
 his authority ; and, if the plaintiff denies, and the solicitor asserts authority to 
 have been given, and there is nothing but assertion against assertion, the solicitor 
 ought to have secured himself by an authority in writing, and, not having done 
 so, he must abide the conseqiiences of his neglect ; for, continues his Lordship, 
 there must be a special authority to imtitute, though a general authority may be 
 sufficient to defend a suit : 3 Meriv. 12. Nor could his Lordship agree to the 
 monstrous proposition, that the making a person a party is only pro forwa ; that 
 it is too much for soUcitors to take upon themselves to make persons parties 
 without a clear authority, for, that it is a duty incumbent on the Court to force 
 solicitors to be in possession of some authority from persons, before they com- 
 mence suits in their names : but, adds his Lordship, if a person who is made co- 
 plaintiff without authority, will acquiesce in it, and lie by for four or five months, 
 his name ought not then to be struck out: see 1 Jac. & W. 45/; Dick. o50 ; 
 2 Cox, 240; 1 Ves. jun. 200. 
 
 3 Waller v. Powell, 4 Law Joum. C.P. 161.— Where an attorney, being em- 
 ployed to raise money, applied to A., another attorney, for that purpose, disclosing 
 his principal, and A. agreed to advance it on behalf of one of his clients, but the 
 negotiation eventually failed from defect of title,-it was held, that A. could not 
 VOL. 11, S
 
 IfjO I-AW TKACTS.- NO. I. [CA1\ VI. 
 
 Proof of ix jiulgc's order referring the bill to be taxed, and of the 
 ik'fendant's undertaking to pay what shall appear to be due, and of 
 the master's allocatur, will be sufficient proof both of the retainer, 
 and of the business having been done.' 
 
 b. Proof of the delivery of the Bill. — It has been seen, that where 
 the demand is for '* fees, charges, and disbursements, at law or in 
 equity," the attorney cannot recover until the expiration of one 
 niontli or more, after he has delivered to the party to be charged 
 therewith, or left for him at his dwelling-liouse, or last place of 
 abode, a bill of such charges, signed by liimself.'- It will, therefore, 
 in such cases, be incumbent upon the plaintiff to call witnesses to 
 shew — 
 
 1st. The delivery of the bill. 
 
 2dly. The party to whom, or place at which, it was delivered. 
 
 3dly. The period of the delivery. 
 
 First, then, as to the delivery of the bill. — This may be proved by 
 an indorsement on the bill, in the hand-writing of the plaintiff's 
 clerk, shewn to have existed at the time of the date, and stating that 
 a copy was, on such a day, delivered to the defendant ; coupled with 
 proof, that it was the clerk's duty to deliver the bill, and that such 
 an indorsement was usually made in the course of business.' 
 
 Next, it has been stated, that the plaintiff must be enabled to 
 shew to whom he has delivered the bill, or at what place it has been 
 left. If the plaintiff goes to trial with the intention of proving a de- 
 livery to the person to be charged, or his agent, he must not be 
 satisfied with being able to establish that the bill was shewn, and 
 its contents explained to the defendant : he must adduce evidence, 
 shewing an actual delivery, and that the bill was left with the de- 
 fendant, or his agent."* On the other hand, if the plaintiff purpose 
 shewing the bill was left at his client's dwelling-house, or last place 
 of abode, it is sufficient to prove that it w^as Iet\ at liis last knoivn 
 place of abode.'' And it W'ill not avail, for the defendant to shew 
 
 maintain any action for his fees against B.'s em])loyer, on the ground of an usnge 
 in the profession for a borrower to pay the expenses of a lender, which was not 
 supported in evidence, by shewing that it was usual for the attorney of the 
 lender to send his bills to the attorney of the borrower, who, if it were reason- 
 able, usually recommended his client to pay it : lligley v. Dayrell, 2 Y. & Jer. 83. 
 
 ' Lee V. Jones, 2 Campb. 496. ^ Vide ante, 62, n. 
 
 3 Champneys v. Peck, 1 Stark. 404. 
 
 '* Vide ante, p. 1 19, &c., where it will be seen, who is .such an agent as to an- 
 swer the requisition of the act of parliament. 
 
 '•> Vide Hill V. Ifumfrys, .'3 Tisp. 254; et nvtt, p. 121.
 
 CAP. VI,] RELATIVK TO ATTORNlliS AND SOMCITOIIS. lol 
 
 that he had left that place of abode, without also proving that he 
 had a later known residence. 
 
 To complete this chain of evidence, it yet remains for the plaintiff 
 to csta!)llsh, that the bill was delivered one lioinr month before the 
 commencement of the action. Here the Nisi Prius record is good 
 j)rhnd facie evidence, to shew that the action was not commenced 
 until the expiration of a month after the delivery of the bill.' This 
 will render it incumbent on the defendant, if the fact was so, to 
 prove that the action was commenced too soon, by producing a copy 
 of the writ,^ or the declaration.'^ 
 
 The record in all the courts is entitled of the term in which issue 
 is joined ; but, in the King's Bench, in actions by bill, and in the 
 Exchequer, a memorandum is added of the term in which the de- 
 claration was filed. If the first day of that term should be within 
 one month after the delivery of the bill, the Nisi Prius record will 
 not be sufficient proof, unless the memorandum be special, stating 
 the precise day on which the bill was filed.'* 
 
 c. Proof of the Bill, and of the Business having been donc.^ — The 
 bill may be proved by a copy or duplicate original, without any 
 notice to produce the bill delivered.^ 
 
 From the decision of Philipson v. Chase,^ it might be inferred, 
 that unless a duplicate of the bill be kept, the plaintiff cannot give 
 parol evidence of its contents without a notice to produce it. But, 
 in a subsequent decision it has been holden, that a copy of an attor- 
 ney's bill, not signed by the attorney, the original of which, duly 
 signed, has been delivered to the defendant, is admissible in evidence, 
 without notice to produce the original.'^ This last decision seems 
 the more consonant to principle and analogy. The bill delivered in 
 obedience to the statute is but a notice of the sums claimed by the 
 attorney, to enable the client to tax the bill, if he objects to the 
 
 1 Webb V. Pritchett, 1 B. &P. 63. 
 a Rhodes v. Gibes, 5 Esp. 163. 
 
 3 Harris v. Orrae.. 2 Campb. 497, "• 
 
 4 See 2 Saund. 1, h. n. 
 
 5 An attorney-at-law, who is not a soUcitor, may maintain an action for the 
 amomit of his bill in suing out a commission of bankruptcy : Wilkinson v. 
 Di«ygel, 1 B. & C. 158 ; s. c. D. & R. 302. 
 
 6 Anderson v. May, 2 B. & P. 237 ; s. c. 3 Esp. 167; Peake's Ev. 5th ed. 104— 
 261. See Messrs. Philip, Roscoe, and Starkie on the Law of Evidence. 
 
 7 2 Campb. 1 10. 
 
 3 Colling V. Trewerk, 6 B. & C. 3!)4 ; s. c. 5 Law Journ. K.B. 132; and eeo 
 Kine v. Beaumont, 7 Moore, 112 ; s. c. 3 B. & B. 288.
 
 \o'2 LAW TRACTS, NO. I. [CAP. VI. 
 
 amount. The action itself is expressly founded on the assumption, 
 that such notice has been properly given. Now, then, there are 
 two classes of cases in which a notice to produce an instrument in 
 the ]H)ssession of the other party is unnecessary : first, where the 
 document in question is itself a notice ; secondly, where, from the 
 nature of the proceedings, the party must know that he is charged 
 wiili having the possession of the instrument in question, and that 
 its cojitcnts Avill be the subject of inquiry ; — for instance, where an 
 action of trover is brought to recover the possession of written 
 instruments, or where, in an indictment, a person is charged with 
 liaving stolen them. Within both these classes, does the question 
 under discussion accordingly range. The bill has been shewn to be 
 a mere notice ; and the defendant must have been cognizant he 
 would be charged with the possession of it; he must have been 
 aware its contents would become the subject of inquiry on the 
 trial. 
 
 The fact of the business having been done, may be proved by a 
 clerk, or other agent, who can speak to the existence of the causes, 
 and the business in respect of which the charges are made, and can 
 establish the accuracy of the main items, ^ without establishing that 
 the particular acts charged for had been identically performed. 2 
 Such are the general rules : but, in the case of Sicitiford v. Green,^ 
 in an action brought by an attorney to procure the execution of a 
 ))ail bond, Abbott, C. J. held, that, in order to recover for that 
 claim, or other charges connected with it, the bond itself should be 
 produced in evidence. 
 
 d. Proof of the rcasonahleness of the Charges, — If the bill which 
 forms tlie subject of the action, contain taxable items, the plaintiff 
 need not produce evidence of the reasonableness of the charges on 
 the trial of the cause. ^ In other cases he should be however able to 
 
 ' Anon. Esp. D. N. P, 10. '^ Pliillips v. Roacli, ibid. 
 
 3 :i Stark. N.P.C. 135. 
 
 4 See Anderson v. .May, 2 B. &P. 237 ; Williams v. Frith, I Doug. 198; Leer. 
 Wilson, 2 Chit. Hep. 65. The orders of the Court of Chancery direct, that after 
 admittance in forma pauperis, no fee, pi'ofit, or reward shall be taken of the party 
 admitted by any counsel or attorney for the dispatch of ])auper's business during 
 the time it shall depend in court : 1 Jac. h W. 6/4. From a passage in the ori- 
 ginal text of the Practical Register, — a book, as Lord Eldon observes, of consider- 
 able authority (1 Swanst. 2.5.) — though the clerks (in the Chancery ollices) take no 
 fees, strictly so called, of a pauper, yet they may charge for their labour in writing, 
 after the rate of one penny per sheet, which is there said to have been allowed by 
 the Lord Keeper in 1628 : (Prac. Reg. Wy. 3i20.) This has been since increased to
 
 CAP. VI.] RELATIVE TO ATTORNIE^ AND SOLICITORS. 133 
 
 prove that the items composing the bill are fair and just. Tlius, if 
 the action be instituted to recover fees in respect of conveyancing, 
 or other business apart from his character of attorney, the propriety 
 of such items should be estabhshed. 
 
 2. On the part of the Defendant. — Should the defendant contest 
 the propriety of the amount of the bill for which the action is 
 brought, he must be, of course, prepared with evidence to support 
 his own construction of the claim. Thus, if he has entered into any 
 special agreement with the attorney, it will be an answer to the 
 action if he be able to establish its validity at the trial. As, where 
 the defendant proved that the plaintiff had undertaken only to 
 charge the money out of pocket.^ So, in another case,^ the Court 
 held it to be a good defence to an action on an attorney's bill, that 
 he undertook to perform the business on the principle of " no cure, 
 no pay." And the defendant may refuse to pay the bill, on account 
 of the plaintiff having agreed to conduct the cause gratis.^ 
 
 Tlie delivery of a former bill is conclusive evidence against an in- 
 crease of charge on any of the same items contained in a subse- 
 quent bill, and strong presumptive evidence against any additional 
 items. The defendant should, if he wish to rely on such bill, 
 and inferentially argue from thence, that the contents of the bill 
 last delivered are incorrect, be prepared to call some one or 
 other who delivered the firet bill to speak to the fact. Real 
 errors or omissions in the former bill may be, however, at all times 
 rectified.^ 
 
 twopence. The order for admission assigns a counsel and a six clerk, and the 
 notices in pauper causes must be signed by a clerk in court: (17 Ves. 'Sd'7.') 
 and, by the general course of practice, a solicitor acting under the order cannot 
 maintain a bill of fees, &c., as against a pauper. This doctrine was lately recog- 
 nized by Abbott, C. J., in an action for recovering a bill of fees, for solicit- 
 ing a pauper cause in Chancery. It was insisted, that the order assigning a six 
 clerk, was not binding upon a solicitor, and that, if a pauper chose to employ 
 one, he was bound to pay him his full bill ; but his Lordship held, tliat the de- 
 fendant was not hable for business done after admission, and that the solicitor 
 could recover only the money out of pocket, and must be understood to have 
 given his services for nothing : Phillipc v. Baker, MSS. ; s. c. Turner & Vcnablc's 
 Ch. Pr. 878 ; s. c. 1 Carr. & P. 533. 
 
 ' Parker v. Harcourt, 5 Esp. 249. 
 
 '^ Tabram v. Home, Law Journ. K.B. 24 ; s. c. 1 lAIan. & Ry. 228. 
 
 3 Ashford v. Price, 3 Stark. N.P.C. 185. 
 
 4 Loveridge v. Botham, 1 B. & P. 49. 
 
 5 Ibid ; and see Windale v. Blackburn, I\1SS, ; 1 Turner & Venable's Cii. Pr. 
 872, 6th edition.
 
 \'.'A LAW TRACTS. NO. 1. [CA1>. VI. 
 
 It is a good defence, that the plaintift' resides at a considerable 
 distance from the place where his business is carried on; and that, 
 in reality, the business is transacted there by his articled clerk.' An 
 attorney, having an office at a place distant from his residence, may 
 undoubtedly exercise his profession in both places by personal com- 
 munications, or sometimes by committing his client to the care of 
 clerks, who receive his instructions, the benefit of which is expe- 
 rienced by the client. To render the defence in this case effectual, 
 the defendant must shew that the clerk was left entirely to himself, 
 to act on his own judgment, and without the least intercourse be- 
 tween the client and the principal. 
 
 Frequent endeavours have been made, to render the plaintiff's 
 negligence, in conducting the business entrusted to him, a matter of 
 defence. The general rule which appears to be established on this 
 point is, that where no benefit whatever has accrued to the de- 
 fendant from the exertions or professional skill of the attorney, the 
 latter may be successfully opposed on the trial by proof of such fact. 
 Tlie defendant must be, however, able to prove that he was de- 
 prived of all advantage resulting from the suit entirely by means of 
 the plaintiff's negligence. A combination of circumstances, of which 
 such negligence may form a component part, will not suffice.^ And 
 not only must there be no care bestowed, or advantage gained, but 
 a possibility of advantage must not exist. Hence, where the bill 
 was incurred in suing out a commission under an erroneous concep- 
 tion that it would operate in the Isle of Man, Lord Ellenborough 
 said, that such facts constituted no defence, as the commission could 
 not be considered absolutely void, as it operated, in fact, as a vo- 
 luntary assignment.'^ But it has been considered to be an available 
 defence by the assignee of an insolvent debtor, to an action by an at- 
 torney for costs of suit incurred in actions which the attorney has 
 conducted for that assignee, that he has neglected to call a meeting 
 of the insolvent's creditors, or to obtain the approbation of a com- 
 missioner of the Insolvent Debtors Court to proceed with those ac- 
 tions according to the statute 1 Geo. 4. c. 119. s. 11, or to apprize 
 
 1 'J'aylor v. Glassbrook, 3 Stark. 75; Hopkins v. Smith, 1 Bing. 13; s. c. 
 7 Moore, 237. 
 
 - Dax V. Ward, 1 Stark. 409; Templer v. M'Lachlan, 2 N.R. 136; and see 
 INIontriou v. Jefferies, 1 R. & Moo. 317 ; s. c. 2 Carr. & P. 113. 
 
 " Pasmore r. Burnie, 2 Stark. 59; and see Dickson v. Clifton, 2 Wils. 319; 
 Basten v. Butter, 7 East, 479 ; and the judgment of Lord Ellenborough in the 
 case of Farnsworth i;. Garrard, 1 Campb. 38.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 135 
 
 the assignee of the clanger he incurred in omitting to comply with the 
 directions contained in it.' 
 
 The defendant may, perhaps, adopt this defence, — viz. that the 
 plaintiff has neglected to take out his certificate for such a period as 
 to nullify his admission.^ But where, in an action brought by an at- 
 torney in 1825, the defendant proved, that the plaintiff had not 
 taken out any certificate during the year 1814, and four more suc- 
 cessive years, but did not prove that the plaintiff had not been re- 
 admitted after that time ; and there was evidence, that, in 1814, the 
 plaintiff had acted in the capacity of an attorney, and had been re- 
 tained by the defendant in that character :— the Court held, that this 
 pri7nci facie evidence remained unrebutted by the defendant ; and, 
 that the plaintiff was entitled to recover.'' 
 
 The case of Williams v. Goodwin^ may be here mentioned. That 
 was an action to recover the amount of an attorney's bill. It ap- 
 peared, that an action had been brought by the defendant's son, for 
 prosecuting which the charges were incurred,' but that the de- 
 fendant employed the plaintiff to commence the suit. It was shewn, 
 that the defendant had been examined as a witness at the trial on 
 behalf of the son, and that the attorney had proposed a release, in 
 case his competency should have been objected to. On proof of 
 these facts, the defendant obtained a verdict ; the Court observing, 
 *' The plaintiff must have known, that the defendant was not, if ob- 
 jected to, a competent witness. He accordingly prepared a release, 
 in case it was required. He must be, therefore, considered as stand- 
 ing in the same situation as if the release had been called for, and 
 acted on at the trial." 
 
 8th. Costs. — On this division of' our subject, but little exists to 
 notice. In general, the costs in such actions are the same as in ordi- 
 nary instances. Two or three cases having been, however, decided, 
 with reference to attornies, as to costs, under the 43 Geo. 3. c. 4(5. 
 s. 3, it is incumbent on the author to notice them. By that act, it is 
 declared, that if the plaintiff do not recover the amount of the sum 
 for which he held the defendant to bail, the Court, upon motion, 
 shall direct, that the defendant be allowed his costs, if it be made 
 appear, by affidavit, to the satisfaction of the Court, that tl.c 
 plaiiitiff had not any " reasonable or p robable cause" for holding- 
 ~TXrii.on V. Rayner, 7 B. & C. 441 ; s. c. 1 M. & Ry- 241 j s. c. 6 Law Jomu. 
 
 K.B. 85. 
 
 '■i As to what does so, vide etnte, 40, &c. et jmt. 
 
 3 Pearce v. Whale, 5 B. k C. SS ; s. c 4 Law Journ. K.B. «<:. 
 
 4 4 La\vJo\u-n. C.P. 141.
 
 1;J(> LAW TKACTS. NO. I. [CAP. VI. 
 
 the defendant to bail in such amount as aforesaid." Accordingly, 
 where a defendant was arrested for a sum of money, in respect of 
 the greater portion of which the plaintift' knew, at the time, that the 
 defendant had obtained a discharge under the Insolvent Debtors 
 Act,— the Court held, that the defendant was entitled to have his 
 costs taxed under this statute, as upon an arrest " without probable 
 cause."' So, where an attorney brought his action for his bill of 
 costs, and held the defendant to bail for a larger sum than was 
 afterwards found to be due upon taxation, without having any rea- 
 sonable or probable cause for so doing,— the Court held, that this 
 was a case within the statute ; and that if not, still the Court, in the 
 exercise of its jurisdiction over its officers, would compel an attor- 
 ney to pay costs under such circumstances. ■ But where the plaintiff, 
 an attorney, arrested the defendant for 100/. for business done, and 
 it appeared that 40/. was due before the plaintiff had taken out 
 his certificate, and which the Prothonotary disallowed on taxation, 
 the defendant was deemed not entitled to his costs under t-he 
 statute.^ 
 
 It will be observed, that, in the last case, the sum of 100/. was 
 due in conscience. The reason of the Prothonotary, in reducing 
 the plaintiff's demand, was not in the slightest degree grounded on 
 the fact of there being any malice in the plaintiff's proceedings. 
 And, indeed, upon application for costs under this statute, the 
 Courts will, in general, require the facts to be such as would sup- 
 port an action for maliciously holding to bail.'* 
 
 Section 2. — Relative to the Attorneys right of Lien for his Costs. 
 
 There are, it is known, two species of liens recognized by our 
 law, general and special liens. Upon their first introduction their 
 foundation rested on principles of natural equity and commercial 
 necessity, and were limited to the case of particular liens, or, in 
 
 1 Price V. , 1 U. & R. 369 ; s. c. 5 Law Journ. K.B. 221. 
 
 2 Robinson v. Elsam, 5 B. & A. 661. 
 
 3 Hinton v. Warren, 5 Law Jouni. C.P. 1. 
 
 4 It is on this ground, that if a defendant, before being arrested for a certain 
 sum, pay a less sum into court, the plaintiff, by taking that sum out of coiu-t, 
 and discontinuing the action, will not subject himself to costs under the statute : 
 2 D. & R. 266 ; 4 id. 187 ; 2 B. & C. 711 ; 13 East, 90 ; IB. & B. G6, So, if the 
 matter be referred to arbitration, and the arbitrator award the plaintiff a less sum 
 than that for which he had holden the defendant to bail, the Court will not, in such 
 a case, allow the defendant his costs : 5 D. & R. .383 ; 3 B. & C. 491 ; 1 B. & F 
 278.
 
 CAP. VI.] IlELATIVE TO ATTOUNIE3 AND SOLICITOUS. 137 
 
 other words, to a right to retain the property of another, on account 
 of labour bestowed, or money expended on that identical property. 
 In course of time, pohcy and convenience influenced the Courts in 
 giving effect to general liens, or a right to retain the property of 
 another, on account of a general balance due from the owner. The 
 former are regarded with a more favourable eye than the latter, being 
 founded on the common law. The latter have been looked upon 
 with jealousy, and countenanced by the Courts with reluctance, as 
 encroachments on that law, and as only allowable where the express 
 usage and benefit of trade rendered it indispensably necessary. 
 Attornies and solicitors have been, for a length of time, however, 
 considered entitled to exercise the privilege of general hens. Its 
 specific extent will now become the subject of our investigation. The 
 usage of their business has, for some time, been general, uniform, 
 and uninterrupted. So frequent and notorious has the privilege of 
 general liens exercised by them become, that an indubitable inference 
 is in all cases warranted, that the individual against whom the right is 
 claimed was cognizant of it, and contracted with reference to it. The 
 Courts will not now, accordingly, permit the right to be questioned 
 in any instance.^ 
 
 1st. Upon Deeds and Pcqiers. 1. General Rules. — The liens of 
 attornies and solicitors for their costs attaches upon all papers that 
 come into their possession in those characters for the purposes of 
 business.^ It is not even indispensable, that the documents should 
 have been delivered to them in the particular cause, or on the parti- 
 cular occasions, from which their demand arises. Thus, in the 
 Court of Chancery, they are permitted to retain title-deeds.^ And, 
 
 1 The practice of allowing attornies a lien upon the papers of their clients is 
 not, according to Lord Mansfield, of very ancient date ; see Doug. 104, and see 
 16 Ves. sen. 280 ; Anon, ex rel. IMagistri Place, 1 Ld. Raym. T-i'i ; 1 Lil. P.U. 
 142; and see 2 P. Wms. 460; 2 Ves. 25; 2 Str. 1126; 3 Burr. 1313; 8 SIoqxq, 
 229 ; s. c. 1 Bing. 211. 
 
 2 Where a bill of discovery in aid of a defence at law, and an injunction, were 
 obtained on terms of paying the money into court, and the defendant afterwards 
 succeeded at law,— it was held, that the solicitor in equity had a lien on tlie fund 
 for the costs of such discovery; but, a gi-eat part of the business appearing to have 
 been done by another solicitor, and his demand satisfied, the Court refused to ex- 
 tend the lien -of the first solicitor beyond the costs actually incurred by him : 
 Irving V. Viana, 2 Y. & Jer. 70. 
 
 3 Anon. 12 Mod. 654; Mitchell v. Oldfield, 4 T. 11.123; Ex parte Nesbitt, 
 2 Sch. & Lef. 27i) ; Peterborough v. Williams, Comb. 43 ; Er parte Bush, 7 Vin. 
 Abr. 74 ; Wilkins v. Carmichael, 1 Doug. 104 ; iu- parte Moule, 5 Mad. 462 ; Ex 
 parte Sterling, 16 Ves. 258 ; Ex parte Pembcrton, 18 id. 282 ; xMassey i-. Davis, 
 2 Ves.jun. 231. 
 
 VOL. II. 'T
 
 138 LAW TRACTS. NO. I. [CAP. VI. 
 
 where an order is obtained for taxing an attorney's bill, and deliver- 
 ing all papers, books, &c., upon the back of which the Prothonotary 
 indorses his allocatur, the attorney is entitled, in the first place, to 
 possession of it, for the purpose of enforcing payment of his bill.' 
 And it has been decided, that an attorney has a lien upon papers 
 belonging to a banknipt, not only for his bill for business done, but 
 for the costs of an action brought against the bankrupt subsequently 
 to the issuing of the commission, to recover the amount of his bill.^ 
 And if a client change his solicitor, during the progress of the 
 cause, the former solicitor will have a lien upon papers in his hands 
 for his costs.^ The extent to which the lien in the last-mentioned 
 case is to be carried, seems to be, however, restricted to certain 
 limits ; as it has been decided, that a solicitor's lien for costs upon a 
 fund of assets appropriated to the agent, subject to securing a debt 
 from him, and the testator as his surety, and afterwards paid by the 
 estate, could not be established."* 
 
 Thus far, then, it is evident, that two things must concur to enable 
 the attorney to exercise his right : — first, it is essential that the 
 business should have been done in his professional capacity ; for 
 if, for instance, deeds be deposited in his hands, in the character 
 of steward,'' or as j^rocJiein amy,^ no lien is created ; secondly, 
 it is requisite that the solicitor should shew that he is the attorney 
 in the cause, and has filed a warrant to defend.' 
 
 2. Hoiv far subordinate to the Rights of Third Parties. — No sort 
 of lien can be acquired in two cases : — first, where the party, 
 who gives possession of the property, has not a disposable power 
 over it, co-extensive with the right claimed ; in such case the pri- 
 vilege asserted by the attorney must only be commensurate with the 
 right of property enjoyed : — secondly, where the interests of third 
 parties would be molested. No infringement must be committed, 
 
 • Alger V. Heft'ord, 1 Taunt. 38. 
 
 •i Lambert v. Buckmaster, 2 B. & C. 6 1 6 ; s. c. 4 D. & R. 125. See 1 Cook, 423 ; 
 sed vide pout, p. 141. The attorney has, however, no lien on the proceedings 
 under the commission: Ex parte Shaw, 1 G. & J. 124. See Ex parte Newton, 
 2 Rose, 19 ; Ex parte Searth, 15 Ves. 293 ; Ex parte Learmouth, Jan. 1807, Mss. ; 
 Beames on Costs, 332. 
 
 » Merryweathert;. MelUsh, 13 Ves. jun. 161 ; O'Dea ?;. O'Dea, 1 Sch. & Lef.315 ; 
 Twort V. Uayrell, 13 Ves. jun. 195 ; Commerell v. Poynton, 1 Swanst. 1 ; Ross v. 
 Laughton, 1 Ves. & Bea. 349 ; Crosswell v. Byron, 14 Ves. 271 ; Lann v. Church, 
 4 Mad. 391 ; Ex parte Moule, 5 Mad. 4G2; sed vide ante, p. 109. 
 
 4 16 Ves. 721 ; Worral v. Johnson, 2 Jac. & Walk. 218. 
 
 5 G Mod. 98. 6 Anon, cited Montague on Liens, 53, 
 7 Van Sandau v. Burt, 1 D. & R. 168 ; s. c. 5 B. & A. 42.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 139 
 
 or inroad made, upon the laws, giving the relative rights of property. 
 Although, therefore, an attorney has, in every case, a particular 
 lien upon the papers in his custody, or the documents intrusted to 
 his care belonging to his client, until he is recompensed for the 
 trouble he has been put to, or expense he has incurred, yet, when 
 the property in any muniments, at the time of delivery of them by 
 the client to the attorney, is in a third person, the attorney cannot 
 detain them against the owner for a debt due from the client.^ 
 And although a solicitor have a lien upon deeds for his costs, yet, if 
 his client is bound to produce them for the benefit of a third person, 
 the solicitor is under an equal obligation.^ So, if a tenant for life 
 give deeds into an attorney's hands, the latter cannot detain them 
 against the remainder-man, for that would have the effect of charging 
 the remainder-man, and of creating a greater interest in the solicitor 
 than the client himself possessed.^ So, where a party gave deeds 
 to another, for the purpose of satisfying him as to their sufficiency to 
 secure an annuity, and the other gave them to a third person, for 
 the purpose of investigating the title, it was holden, that the third 
 person could not retain the deeds for his costs of investigating the 
 title, for the deeds did not belong to the party who employed him.-i 
 But, a solicitor who is in disburse for his client, has a right to be 
 paid out of a duty decreed to an administrator, and has a lien upon it 
 before the bond creditors of the deceased ; nor can the administrator 
 controvert this rule, by insisting upon applying the assets in a course 
 of administration.^ So, a solicitor prosecuting a suit to a decree 
 has a lien on the estate recovered, in the hands of the party recover- 
 ing the estate, for his bill, but not in the hands of his heir, unless 
 it is necessary to revive the suit, in which case the right of lien is 
 revived.^ 
 
 3. How far affected by the acceptance of Securities. — It would 
 seem,that no lien can be acquired where the party claiming it has ac- 
 cepted of securities for the debt, indicative of his intending to rely 
 only on the personal credit of his employer. The cases are by no 
 means, however, clear and explicit on this point ; or, in other words, 
 
 1 Ex parte Bush, 7 Vin. Abr. 74 ; Ex parte Bell, Co. Bank. L. 429 ; sed vide 
 Bac. Abr. tit. " Attorney," (f.) ; Oxenham v. Esdaille, 3 B. & C. 225 ; s. c. 5 D. 
 & R. 49. 
 
 2 Furlong v. Howman, 2 Sell. & Lef. 115. 
 
 3 Ex parte Nesbitt, 2 Sell. & Lef. 279; and see 13 Ves. IGI ; 16 Ves. 258 j 
 ibid. 2/5; 18 Ves. 282; ibid. 291 ; Howse v. Paiker, 2 T. K. 37(j. 
 
 4 HoUis V. Claridge, 4 Taunt. 807. 
 
 5 Turwin t?. Gibson, 2 Ves. 407. * Bamesley v. Powill, Ambl. 102.
 
 140 LAW TKACTS. KO. r. [CAP, VI. 
 
 tlie vavious decisions at law and in courts of equity are not altogether 
 reconcileable. In the case of Stevenson v. Bhdelock,^ wliich came 
 before the Court of King's Bench, and lias been recognized by the 
 same court in a subsequent determination,- where A. gave his 
 attorney a specific sum for the purpose of satisfying a debt, for 
 wliich an execution had issued against his goods, at the suit of B., 
 and the attorney paid the money to B., who thereupon delivered to 
 him a lease, which had been deposited by A. with B., as a seciu-ity 
 for the debt, — the Court held, that the attorney had a lien on it for 
 his general balance due from A. ; and that such lien was not extin- 
 guished by his having taken acceptances from A. for the amount of 
 that balance before the lease came to his hands, — some of those ac- 
 ceptances having been previously dishonoured, and one of them 
 taken up by the attorney. In the Court of Chancery, on the other 
 hand. Lord Eldon treated it as an vmdeniable and general proposi- 
 tion, that the acceptances of securities in all cases supersedes the 
 lien ;^ and, in Balch v. Symes,^ his Lordship is reported to have 
 said, " Notwithstanding the Court of King's Bench has expressed a 
 doubt, whether my decision was right, in the case of Cowell v. Simp- 
 son, I still entertain the opinion, that an attorney Avho takes his secu- 
 rity abandons his lien." It is, however, worthy of remark, that in 
 the case of Stevenson v. JMalieloch, the lease did not come into the 
 attorney's hands until svhsequent to the dishonour of the security 
 he had previously accepted ; and that Lord Eldon himself allowed 
 that the doctrine he promulgated did not apply to sums which were 
 not covered by the security ; and that, as to those sums, the lien 
 must be considered to remain. 
 
 Much may be said in favour of the rule Lord Eldon adopted, that 
 the special contract determines the simple one. Were it not to be 
 subscribed to, the same right must, for instance, be holden to vest in 
 parties having a lien upon goods ; the consequence of which would be, 
 that this inconvenience would follow, viz. that, in cases where the 
 necessities of mankind might require that the goods should be deli- 
 vered for consumption, the right of lien would be extended for the 
 whole period, which the security had to run ; for it must be pre- 
 sumed, either that the lien is to continue and accompany the security, 
 or that it is relinquished by its substitution. Again, reasoning by 
 analogy, it has been held in equity, that the circumstance of another 
 
 1 3 M. & S. 635. ^ Chace v. Westmore, 5 M. & S. 181. 
 
 3 Cowell V. Simpson, 16 Ves. 275. 
 
 4 1 Turner, 92; and see 2 Atk. 114 j ibid, 307 j 3 id. 727 j 2 Ves. 251 ; 2 P. 
 Wras. 440.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 141 
 
 security having been taken and relied on by the vendor of a real 
 estate, may be evidence of his liaving rehnquished his Hen upon the 
 estate sold.' 
 
 It is, however, clearly established, that if writings are delivered to 
 an attorney, under a special agreement, or for a particular purpose, 
 upon a special trust, not to be subject to the general lien, he cannot 
 detain them.^ 
 
 4. How far affected by the Banh-upt Laws. — The principles of 
 the bankrupt laws sometimes interfere, so as to prevent the vesting 
 of a lien which would otherwise attach. Thus, it has been seen, 
 that an attorney has a lien upon all papers of the bankrupt which 
 came to his hands previously to the act of bankruptcy for costs due 
 to him from the bankrupt.'' And he has this lien as fully against the 
 assignees as against the bankrupt himself.'* But he has no lien upon 
 papers that come into his hands after the act of bankruptcy.* 
 
 So, no lien can be acquired by an attorney upon the deeds or other 
 papers of a trader, which are delivered by the trader to the attorney, 
 not in the due and regular course of business, but with intent to 
 give him a preference in the event of his bankruptcy; all such dispo- 
 sitions of property, made with such an intent, being fraudulent, and 
 tending to defeat the object of the bankrupt laws. But where no 
 trace of such a fraudulent preference exists, an attorney, as just stated, 
 is entitled to alien upon papers which come into his hands before the 
 bankruptcy of his client, as well against the assignees, as against the 
 bankrupt. And this is but fair : the assignees take the bankrupt's 
 property, subject to the same equitable liens as those under which 
 the bankrupt himself enjoyed it; for the general principle of the 
 bankrupt laws, that all the creditors of the bankrupt shall be placed 
 upon an equal footing, does not extend to such as have fairly ac- 
 quired a lien upon his property, because the other creditors trusted 
 to the personal credit of the bankrupt, while those who had liens 
 trusted only to the things which were the subject of those liens, and 
 not to the personal credit of the owner. Nor does the allowance of 
 such liens upon the whole tend to the prejudice of the creditors at 
 
 1 Macreth v. Symons, 15Ves. jun. 329; see Fells u. Read, 3 Ves.jun. 70; and 
 see 5 Ed. 4. fol. 2 ; 17 Ed. 4. fol. 1 ; 2 Rol. Abr. 92, (m.) pi 2. 6 ; Yelv. m ; Col- 
 lingu.Ongley, cited Brenmantx;. Currint, Sel. N.P. 1289 ; Weymouth v. Bowyer, 
 5 Ves.jun. 416; 1 Taunt. 38. 
 
 2 Lawson v. Dickinson, 8 Mod. 306. ^ Ante, p. 138. 4 Jbid. 
 
 5 Ex parte Lee, 2 Ves. 285. See Ex parte Allison, 1 Glyn & J. 210 ; Copland v. 
 Stein, 8T. R. 199 ; Hovill v. Lethwaite, 5Esp. 158; Meyer r. Sharpe, 5 Taunt. 74; 
 NichoUs V. Clent, 3 Price, 247-
 
 14'2 LAW TRACTS. NO. I. [cAP. VI. 
 
 large ; for, had the business transacted by the attorney not been 
 fulfilled, there ^voiild not, perhaps, have existed the same chance 
 of increasing the fund out of wliich the other creditors were to 
 be paid. 
 
 It remains to be observed, that, in obtaining possession of the 
 documents which are the subject-matter of the lien, no deception 
 must be exercised to induce the delivery of the papers. If the at- 
 torney be guilty of any misrepresentation, however trivial, or have 
 recourse to any underhanded means of securing the muniments, he 
 will not be able to retain them against his client ; although, had he 
 acted a fair and upright part, he would have been entitled to have 
 refused parting with them. But, although a lien cannot be created 
 in the first instance by misrepresentation,' yet, as will be hereafter 
 seen, having been once fairly acquired, and lost by the possession 
 being afterwards relinquished, it may, under some circumstances, be 
 revived, by regaining possession of the property on which it existed, 
 even on a false pretence.^ 
 
 2d. On Judgments, Decrees, Monies, or other Securities for 
 Mo7iies recovered by the Client. — The lien that attornies and soli- 
 citors have upon the various papers and documents of their clients, 
 has been already examined. 
 
 The claim that they have upon the proceeds of judgments or 
 decrees recovered by them, or awards made in their favour, has 
 been stated by Lord Hardwicke to be founded upon the expense, 
 diligence, and costs^ the attorney is put to. In the case of Tunvin 
 V. Gibson,^ that learned Judge observed, " A solicitor, in conside- 
 ration of his trouble, and the money in disburse for his client, has a 
 right to be paid out of the duty decreed for the plaintiff;" and it has 
 been seen,* that he even has a lien upon it before the bond creditors 
 of a deceased plaintifi^'. 
 
 The nature of the lien attornies may exercise in respect of monies 
 is not confined to money that may come into their hands. Not only 
 may they retain such amount for their costs, or stop it in transitu, 
 but an order may be even obtained to stop the client from receiving 
 
 ' Ante. 2 Whitehead v. Vaughan, Co. B. L. 566. 
 
 3 Anon. 2 Ves. sen. 25. 
 
 4 3 Atk. 719; and see Staines v. Maddox, Mosel. 319; Farewell v. Coker, 2 P. 
 Wms. 461 ; Skinner v. Sweet, 3 JMad. 244 ; Anon. 2 Ves. sen. 25 ; Montague on 
 Liens, 53; 2 Ilullock's Costs, 524. 
 
 5 Welsh V. Hole, Doug. 226; Mitchell t;. Oldfield, 4T.R. 123; Taylor r. Pop- 
 liam, 15 Ves. jun. 72; see Craddock v. Glin, 12 Mod. 6b7 ; Turwin v. Gibson, 
 3 Atk. 720.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 143 
 
 money, recovered in a suit in which the attorney lias been employed 
 for him, until his bill is liquidated.' Nay, more, if the defendant's 
 attorney pay to the plaintiff himself the debt and costs recovered, 
 after notice from the plaintiff's attorney not to do so, because his 
 bill is not satisfied, the defendant's attorney will be liable to pay over 
 again to the plaintiff's attorney the amount of his lien on such debt 
 and costs of suit,^ although the plaintiff threatened to take the de- 
 fendant in execution, unless the money due to him was immediately 
 paid.^ So if, after an order that a party shall pay costs to a peti- 
 tioner in consideration of certain actions against him beincr with- 
 drawn, and of his name being erased from certain bills of exchange, 
 a release of the costs specified in the order be executed after a 
 notice given to the party not to pay costs to the petitioner, but to 
 his attorney, the release will not protect him from payment of costs 
 to such attorney.'* 
 
 But where an attorney, without a regular authority from the plain- 
 tiff, commenced an action of replevin, and the plaintiff, knowing of 
 the proceedings, suffered the cause to be carried down to trial, but 
 afterwards, concurring with the defendant, entered up satisfaction on 
 the record, without securing the attorney his costs, — the Court re- 
 fused to vacate the entry of satisfaction.^ And where the plaintiff's 
 attorney was indebted to his employer in a greater sum than the 
 amount of the attorney's costs in the cause, the Court of Common 
 Pleas held, that the agent, to whom the plaintiff's attorney was in- 
 debted on a general account in a sum greater than the amount of 
 such costs, could not, as against the plaintiff, retain, out of the sum 
 recovered by the latter, more than the charge for agency in that 
 particular cause. ^ 
 
 So, where the plaintiff, having charged the defendant in execution, 
 died, and the defendant's wife took out administration to the plain- 
 
 1 Welsh V. Hole, Doug. 226; Wilkinst;. Cai-michael, Doug. 104 ; and see Ows- 
 ton V. Bryan, Barnes, 115 ; in which it was held, that the assignees of a bankrupt 
 cannot take out of court money paid in by the defendant, in an action at the bank- 
 rupt's suit, until they have paid the attorney of the latter his bill. So a solicitor 
 who sues out a commission of lunacy, has a lien for his bill on the lunatic's estate. 
 Ex parte Price, 2 Ves. sen. 40/. 
 
 2 Welsh V. Hole, Doug. 226. 
 
 3 Read v. Dupper, G T. R. 361. 
 
 4 Ex parte Bryant, 2 Rose, 2;37; ct vide 1 Mad. 49; Worral v. Johnson, 2 Jac. 
 & W. 218. 
 
 5 Abbott V. Rice, 3 Ring. 132. 
 
 6 White V. the Royal Exchange Assurance, 1 Bing. 20 ; s. c. 7 Moore, 249 ; 
 and see 6 Price, 203 ; 2 D. & R. G ; 6 D. & R. 384.
 
 Ill' LAW TRACTS. NO. I. [CAP. VI. 
 
 tiff, the Court, of King's Bench ordered the defendant to he dis- 
 charged out of custody, saying, that the plaintiff's attorney had no 
 lien on the judgment for his costs.' And where the plaintiff, after 
 judgment recovered, settled the action with the defendant, and em- 
 ployed a new attorney to enter up satisfaction on the record ; the 
 Court held, that the defendant was entitled to be discharged out of 
 custody, although the lien of the plaintiff's attorney for the costs had 
 not been satisfied. - 
 
 An attorney has likewise a lien for his costs on money levied by 
 the sheriff under an execution upon a judgment recovered by his client, 
 and is entitled to have it paid over to him, notwithstanding the sheriff 
 has had notice from the party, against whom the execution issued, to 
 retain the money in his hands, and that the court would be moved 
 to set aside the judgment for irregularity; and notwithstanding a 
 docket has been struck against the client, who has become a bank- 
 rupt.^ But where the defendant had been discharged out of custody 
 by the sheriff, wdth the consent of the plaintiff, notwithstanding a 
 notice from the plaintiff's attorney to the sheriff's officer not to release 
 the defendant until the costs were paid, — the Court held, that the 
 sheriff was not liable to pay those costs, nor bound to retain the de- 
 fendant after the plaintiff was satisfied."^ 
 
 An attorney has also a lien upon a sum awarded in favour of his 
 client, where the cause is referred to arbitration, as well as upon a 
 sum recovered by a judgment ; and if the defendant, after notice from 
 the plaintiff's attorney to pay him the amount of the dama<Tes and 
 costs awarded, pay it over to the plaintiff himself, the attorney 
 may compel a repayment of it to himself, and will not be prejudiced 
 by a collusive release from the plaintiff to the defendant.^ 
 
 1 . Hoiv far paramount or subordinate to the equitable Claims of the 
 Parties to the cause or suit. — In fixing the limits to which the ri'i^ht of 
 lien upon judgments may be carried, a diversity exists as to the prac- 
 tice of the respective courts. The Courts of Common Pleas, and Chan- 
 cery, seem to permit the attorney's lien to be only exercised, subser- 
 vient to the interests and equitable claims of the litigant parties ; whilst 
 the Court of King's Bench will not allow the efficacy of the attor- 
 ney's lien until the rights of the suitors have been completely ad- 
 
 1 Pyne v. Erie, 8 T. R. 407. 
 
 2 Marr v. Smith, 4 B. & A. 466. 
 
 3 Griffith V. Eyles, 1 H. Bl. 122. 
 
 4 Martin v. Francis, 2 B. & A. 402 ; s. c. 1 Chit. Rep. 241. 
 
 5 Ormerod v. Gate, I East, 404 ; and see Ex parte Bryant, 2 Rose, 237 ; 1 Madd. 49.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. Id5 
 
 justed.^ In the former courts, the attorney or solicitor cannot pre- 
 vent a set-oft' in costs between the parties by a claim of lien for his 
 costs, which in the latter court he has been considered able to eftect. 
 Thus, in the Court of Common Pleas, where there were several de- 
 fendants, some of whom suffered judgment by default, while the 
 others went to trial and obtained a verdict ; the Court permitted the 
 costs and damages on the judgment by default to be deducted from 
 the costs taxed on the postea, to those defendants who had a verdict, 
 (on affidavit that the former defendants acted under the authority of 
 the latter, who had undertaken to pay costs,) notwithstanding a 
 claim of lien by the attorney on the costs. ^ So, in the case of Webber 
 V. Nicholas,^ the costs of a bill in equity were allowed to be set off* 
 against a verdict at law, notwithstanding the lien of the attorney for 
 his costs. And the Court of Common Pleas have even carried this 
 rule to such an extent, that they adhered to it in a case where it even 
 appeared that the attorney's employer was insolvent, and that 
 there was no other source from which the solicitor could derive the 
 payment of his costs. "^ And where, in the same court, upon a re- 
 ference of two actions between the same parties to arbitration, the 
 arbitrator awarded a sum to be paid by each party to the other, and 
 the party entitled to the larger sum sued for it in the Court of King's 
 Bench, with intent to make the other party's set-off" subject to the 
 attorney's lien, the Court of Common Pleas refused to interfere to pre- 
 vent it.^ In the same way, where different demands arise in the same 
 cause in the Court of Chancery, the costs in such case are arranged 
 according to the equities of the parties, allowing the solicitor a lien 
 only upon the balance remaining under that arrangement.'* On the 
 other hand, the Court of King's Bench will not allow the defendant 
 
 I See Harrison v. Bainbridge, 2 B. & C. 800; s. c. 2 Law Journ. K.B. 171 ; 
 Glaister v. Bower, 8 T. R. 70 ; Stephens v. Weston, 3 B. & C. 535 ; s. c. 5 D. & 
 R. 399 ; s. c, 3 Law Journ .K.B. 73 ; s. c. 4 Bing. 17, cited ; Randleu. Fuller, G T. R. 
 45C; Middleton v. Hill, 1 M. & S. 240; Lomas a;. ftJcllor, 5 IMoore, 95 ; Ex parte 
 Rhodes, 15 Ves. 539; 15 Ves. 72; 2 Ball & Beu. 34; 8 Taunt. 520; Webber v. 
 Nicholas, 4 Bing. IG ; s, c. 5 Law J. C.P. 19 ; 1 Price, 37G ; and see Sellon's Pr. 
 451 ; Lee's Diet. Pr. 108-9, 340-1, 1st edit. ; 1 Arch. Pr. 38, 2d edit. ; 1 Tidd's Pr. 
 9th edit. 
 
 ^ Schoole V. Noble, 1 H. Bl. 23; see Nunez r. INlodgiliani, ibid. 217; Roberts v. 
 Mackou], cited Thrustout, dem. Barnes, v. Crofter, 2 Bl. 827 ; s. c. Say. Costs, 254 ; 
 Hall V. Oddy, 2 B. & P. 28 ; Embdin v. Darly, 1 N. R. 22. 
 
 3 5 Law Journ. C.P. 19. •• Symonds v. JMills, 8 Taunt. 52G. 
 
 5 Vaughan v. Davis, 2 H. Bl. 4 iO ; see Dcnnie v. Elliott, 2 U. Bl. 587 ; Bor- 
 land V. Lashley, 2 H. Bl. 441, n. a. 
 
 ^ Taylor v. Popham, 15 Ves. jun. 7-- 
 
 VOL. 11. U
 
 146 LAW TRACTS. NO. I. [cAP. VI. 
 
 in one cause to set oft' the costs recovered by him in another against 
 the plaintift; until the Hen of the plaintiff's attorney upon the debt 
 and costs recovered against the defendant is satisfied, or an under- 
 taking is entered into to that effect,' though the same attorney who 
 claims the hen was employed in both causes.'- If therefore two par- 
 ties obtain judgments, the one against the other — and one of them 
 applies to the Court to have his judgment set oft' against the judg- 
 ment of the other : the Court will permit him to do so upon the 
 terms of his satisfying the lien that the attorney of the opposite party 
 has for his costs.'' And the same rule obtains where the rights of 
 the parties arise from separate awards."^ But even in this court, if the 
 claims of the parties are with reference to the same action, or arise 
 from the same award; or if a defendant obtain a rule for costs for not 
 proceeding to trial, and the plaintift' afterwards have a verdict in the 
 same cause ;'' or if by an award one party be ordered to pay the costs 
 of a nonsuit to the other, and the latter to pay a gross sum to the 
 former ;•"' the Court will allow one sum to be set off" against the other 
 without securing the attornies' costs : for the lien of an attorney in 
 such a case is entirely dependent on the final result of the cause, 
 and the balance which is ultimately to be paid to the one or the 
 other party : his lien is entire, and not one lien upon proceedings in 
 one stage of a cause and another in another : he is only a represen- 
 tative character ; and a cause is therefore not to be split, so* as to 
 give the attorney of either party a lien upon interlocutory costs, 
 although ultimately his client should be bound to pay costs to a 
 greater amount to the adverse party. So it has been holden, that 
 an attorney has a lien on the judgment obtained by his client against 
 the opposite party, to the extent of his costs of that cause only.'' 
 
 In conformity with these rules, where a defendant, being sued by 
 bill as an attorney of that court, pleaded by an attorney or agent 
 who had not filed any warrant to defend, and the plaintiff, being non- 
 suited, moved to stay the proceedings in the action ; undertaking to 
 set off the defendant's costs against a judgment due from him 
 
 1 Mitchell V. Old field, 4 T. R. 124. 
 
 2 Rlorsland v. Pasley, 2 H. Bl. 441, n. a. 
 
 3 Handle v. Fuller, 6 T. R. 456 j Middleton t;. Hill, 1 I\I. & S. 240; 1 J). & R. 
 168; 4 id. 363. 
 
 4 Anon.E.T. 1814. MSS. ; 1 Arch. Pr. 39, 2d edit. 
 
 5 Howell V. Harding, 8 East, 362. Sal vide 4 D. & R. 716. 
 ** Figes V. Adams, 4 Taunt. 632. 
 
 7 Stephens v. Weston, 5 D. & R. 399 ; s. c. 3 R. & C. 535 ; s. c. 4 Bing. 
 17, cited.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 147 
 
 to the plaintiff'; the Court held, that the defendant's attorney or 
 agent had no lien upon the costs for his own costs in defending the 
 suit.^ 
 
 The rules adopted in the Courts of Common Pleas and Chancery 
 have been said to be grounded on the policy of the law, which pre- 
 sumes that the attorney will, in the first instance, look to the personal 
 security of his client. It has been accordingly, as has been seen, re- 
 peatedly recognized ; but it is, perhaps, to be regretted that the 
 practice of those courts does not coincide with the system pursued 
 in the Court of King's Bench. 
 
 And this consideration is fortified by the fact of Lord Eldon's 
 having lamented the practice in the case of Hall v. Oddy, and of his 
 having decided that case, as he himself stated, consistently with the 
 previous practice of the court in which he presided, more than in 
 conformity to his own notions on the subject ; observing, " as the at- 
 torney in this case has acted with a knowledge of the settled practice 
 of the court, he can have no right to claim the advantage of a more 
 just principle ; and it will only remain for the Court to consider whe- 
 ther the practice of the Court of King's Bench should not be adopted 
 here for the future." 
 
 od. How Liens are affected hy the Attorney parting with Possession 
 of the Subject of the Lien.—lAeu^ at law exist only while the party 
 entitled to them continues in possession of the property in respect to 
 which they have been acquired. If the attorney once relinquishes 
 that possession after the lien attaches, the lien is accordingly gone ; 
 for, by parting with possession of his security, he shews that he 
 trusts merely to the personal credit of his debtor ;- and, indeed, if 
 liens were allowed to remain upon muniments after they had been 
 perhaps made the subject of sales and negotiations, no purchaser 
 could rely with safety on the interest or title they purported to convey. 
 In conformity to the same rule, if an attorney, having a lien upon 
 papers in his possession, when they are demanded of him, claims to 
 detain them upon a different ground, making no mention of the lien, 
 it will be considered as a waiver of it, and trover may be maintained 
 against him without evidence of any tender having been made of the 
 amount of his lien.^ But, although liens cannot be transferred by 
 
 1 Van Sandau v. Burt, 1 D. & R. 1 68. 
 
 2 Whittaker on Liens, p. 68 ; and see Jones v. Pearle, Str. 550 ; Ex parte 
 Shank, 1 Atk. 254; Kruger v. Wilcox, Ambk 252 ; Wilkiiis v. Carmichael, Doug, 
 97 ; Sweet v. Pym, 1 East, 4 ; M'Combie v. Davies, 7 East, 5. 
 
 3 See Boardmau v. Sills, 1 Campb. 410, n.
 
 148 LAW TRACTS. NO. I. [CAP. VI. 
 
 tliosc who have fairly acquired them against the owners, by a tortious 
 dehvery of the subject to tliird persons ; yet, where an attorney, 
 having a Hen upon papers against his chent, dehvers them over to a 
 third person with notice of his lien, and purporting to transfer his 
 right of lien to the other as his servant, and in his name, and as a 
 continuance in effect of his own possession ; his right will not in that 
 case be divested.' 
 
 The mere delivery of deeds into the cUent''s possession does not 
 therefore per se divest the property out of the attorney's hands. It 
 is necessary that there should be a substantive act carrying with 
 itself an intention to part, not only with possession, but substantially 
 with the right of property. No condition must be annexed to the 
 delivery, either of an express or implied nature : it must be uncon- 
 ditional and voluntary. The attorney must be prompted by no 
 motives dehors the abandonment of the documents; he must be 
 influenced by no ulterior object : but the delivery must be complete 
 and distinct of itself. Thus, if the deeds or papers are required for 
 some purpose unconnected with the immediate cause the attorney 
 may have in hand, the attainment of which is specifically stated to 
 the individual to whom the property is intrusted, it is presumed that 
 the attorney's right of hen would still subsist.^ So, where the pro- 
 perty, upon which the lien exists, is delivered up to the owners upon 
 the faith of an assignment, which afterwards turns out to be invalid, 
 it seems that the party is still entitled to the benefit of his lien.^ 
 
 It is, however, necessary to recall the reader's remembrance to the 
 following fact, which is very important in considering this branch of 
 our subject, — viz. that although an attorney may have been abso- 
 lutely deprived to all intents and purposes of every legal claim he 
 might have asserted over any deed or other property of his client's; 
 althoufh he may inimd facie have irretrievably lost all controul over 
 their disposition; yet, that, if, by any sinister manoeuvres, or through 
 the medium of any unfair representation or clandestine management, 
 he can regain possession of such documents, the integrity of his 
 interest revives, and he again becomes invested with the entire 
 privileges of lien he might have previously exercised.'* 
 
 1 See 2 East, 529 ; 7 East, 5. 
 
 'i See Vernon v. Hankey, 2 T. R. 113 ; and see 1 East, 507 ; Abbott, 276. 
 
 3 Vide ibid. 
 
 4 See Whitehead v. Vaughan, Co. B. L. 566.
 
 CAP. VI.] RELATIVE TO ATTORNIES AND SOLICITORS. 149 
 
 Sect. S. — To recover Compensation for the comrmssion of Torls. 
 
 There are a few points which are arranged here, being confined 
 to instances of actions brought by attornies for wrongs committed 
 against them, and not affecting the law of actions at the suit of at- 
 tornies, as hitherto examined. 
 
 They, in general, consist of cases of defomation and slander. 
 The particular words which have been holden to constitute fit sub- 
 jects for the investigation of the courts, have given rise to some de- 
 cisions. Thus, it has been considered actionable to say of an attorney, 
 " You deserve to be struck off the roll;"' but saying to an attorney, 
 " I have taken out a Judge's warrant to tax your bill — I'll bring you 
 to book, and shall have you struck off the roll," will not be sufficient 
 to make the attorney amenable to damages.^ 
 
 When letters contain expressions of an ambiguous tendency or 
 equivocal meaning, as if the expressions made use of are not clearly 
 directed against the attorney individually, but may he by some sup- 
 posed to refer to the profession as a body, it has been held, that 
 those two propositions may be properly submitted to the jury. Thus, 
 in a letter written by the defendant to an attorney's client, the 
 former said, " If you will be misled by an attorney, who only con- 
 siders his own interest, you will have to repent it. You may think 
 when you have once ordered your attorney to write to your oppo- 
 nent, he would not do any more without further orders ; but if you 
 once set him about it, he will go any length without further 
 orders." At the trial, the Judge left it to the jury to determine 
 whether the expressions in the letter were made with reference to 
 professional men in general, or with reference to the plaintiff in par- 
 ticular. After a verdict for the plaintiff', a motion was made to enter 
 a nonsuit, on the ground that it should have been put to the jury, 
 whether the expressions exceeded the line of confidential communi- 
 cation. But the Court refused to interfere.^ 
 
 No action lies as for a disturbance of a solicitor retained at a public 
 meeting to solicit a bill in parliament, there being no wrongful act by the 
 defendant stated, but only that the defendant, who was the chairman 
 of the meeting and one of the committee appointed for the dispatch 
 
 1 Phillips V. Jansen, 2 Esp. 624. 
 
 2 Ibid, and see I Rol. 53. 1. 25 ; Hob. 9 ; Mo. 855 ; Hardwick v. Chandler, 
 2 Str. 1138 ; Cro. Car. 515; Noy, U ; Lat. 21 ; 1 Brownl. 16; 1 Vent. 117 ; Godb. 
 214; Cro. Car. 192; Hut. 104 ; 1 !Mod. 272; 1 Lev. 297; 1 Sid. 327. 
 
 3 Godson V. Home, 1 B. & B. 7.
 
 150 LAW TRACTS. NO. I. [CAP. VI. 
 
 of the business, conspired with others to disturb the plaintiff' in his 
 employment and business, and procured other solicitors to be em- 
 ployed. • 
 
 The evidence to be adduced in these cases of the plaintiff"s special 
 character, may consist in an examined copy of the roll of attornies, 
 signed by the plaintiff'.^ So, the book from the Master's office, 
 containing the names of all the attornies, produced by the officer in 
 whose custody it is kept, is good evidence ; together with proof 
 that the plaintiff' practised as an attorney at the time of the words 
 spoken.^ 
 
 Sometimes the necessity of being able to adduce evidence of the 
 particular character in which the plaintiff* sues, becomes unnecessary. 
 Thus, in an action for slandering the plaintiff in his profession of 
 an attorney, the words themselves, importing that the defendant 
 would have the plaintiff struck off" the roll of attornies, were held to 
 be an admission of the plaintiff's character as attorney.^ 
 
 It would seem, however, that if slander imply a charge that the 
 plaintiff' was not qualified to act in the particular character he has 
 assumed, he ought to prove his qualification, and that it would not be 
 sufficient merely to shew that he acted in that capacity.^ 
 
 The case of Jones v. Stevens, decided in the Court of Exche- 
 quer,** must not pass unnoticed. The action in that case was by an 
 attorney for a libel concerning him in his profession or business. 
 The declaration alleged, that the plaintiff, at the period of commit- 
 ting the grievances, had been, and still was, an attorney. To nul- 
 lify this averment, the defendant produced evidence, shewing that 
 the plaintiff had, during the time stated in the declaration, practised 
 as an attorney without a certificate for more than one year. But the 
 Court said, that the act of parliament, relative to the certificate of 
 attornies, did not in any case deprive the person avIio had been once 
 admitted an attorney, of his professional character of attorney for not 
 taking it out, but merely suspended it for a time; that he was 
 therefore still an attorney for the purposes of this action, — his re- 
 
 ' Tliompson v. Noel, 15 East, 501. 
 
 -' Berryman v. Wise, 4 T. R. 3G6. 
 
 ^ Rex V. Crossley, 2 Esp. 526; Lewis v. Walter, 3 B, & C. 138 ; Jones v. Ste- 
 vens, 11 Price, 235. 
 
 4 Berryman v. Wise, 4 T. R. 366 ; Pearce v. Whale, 5 B. & C. 39 ; and see Rex 
 V. Gardner, 2 Campb. 513 ; Lister v. Priestly, Wightw. 67. 
 
 -' See Moises v. I^iornton, 6 T. R. 303 ; Pickford v. dutch, cited 8 T. R. 305, n ; 
 Smith V. Taylor, 1 N. R. 196; and Petersdorft"'s Abridg. vol. 2. p. 667, n. 
 
 " 1 1 Price, 235.
 
 CAP. VII.] RELATIVE TO ATTORNIES AND SOMCITOKS. 151 
 
 admission not making him a new attorney, but only restoring him, 
 on certain terms, to his capacity of acting as the legally recognized 
 representative of others. 
 
 CHAP. VII. 
 
 PROCEEDINGS AGAINST ATTORNIES AND SOLICITORS. 
 
 Sect. 1. — Of the Court before which Proceedings should be taken. 
 
 The general exemption of attornies from the jurisdiction of inferior 
 courts, has been already noticed.' As defendants, it will be however 
 remembered, that they are in many cases expressly subjected to the 
 jurisdiction of such courts; when such is the case, proceedings must 
 be instituted against them in those courts, if as private individuals 
 they would have been liable to have been sued there. 
 
 Sect. 2. — Parties to the Action. 
 
 In proceedings with reference to the statutes for practising without 
 certificates, the followhig rules, as to the parties to sue and be sued, 
 are important. 
 
 If an attorney be in partnership with another, and they carry on 
 their business together, and their joint names are put on their papers 
 in causes in their office, either of them is liable to the penalties in- 
 flicted by the 37 Geo. 3. c. 90. s. 26, although it do not appear that 
 one of them had any profit or advantage from the suit for which the 
 qui tam action is brought.^ It has been accordingly determined, 
 that two attornies as partners cannot be sued together as for one 
 offence, in practising without having obtained and entered their cer- 
 tificates.^ And in suing for such penalties, the action must be 
 brought in the name of the Attorney General.'* 
 
 Sect. S.— Of the Bill. 
 
 The instances in which the process peculiar to attornies must be 
 
 adopted, and the cases in which the privilege becomes forfeited or 
 
 waived, have been explained.^ It is now our object to lay before 
 
 the reader the nature of the bill adopted and recognized in the dif- 
 
 ' Vide ante, p. 44. - Edmonson v. Davis, 4 Esp. 14. 
 
 =* Barnard v. Gostling, 1 N. R. 2 15 ; reversing 2 East, 5(59. 
 4 44 Geo. 3. c. 98. s. 10. •'• Ante, p. .37 to 44.
 
 152 LAW TllACTS. NO. I. [cAP. Vll. 
 
 fcrent courts ; being the process by which they must be sued, and 
 upon wliich they cannot be holden to bail.' 
 
 1st. General nature of the Bill, and Practice relating to. 1. In the 
 Court of Kings Bench. — Attornies must be sued in tliis court by bill, 
 whicli is the foundation of the action. It is a complaint in writing, 
 and describes the defendant as being 7;;-e*<?/i^ in court. Its form is, 
 in fact, similar to a declaration in actions by bill, excepting that 
 instead of concluding, "and therefore he brings his suit," it is, " and 
 therefore he prays relief;"' although the declaration on the bill is not 
 demurx'able for want of it."* It is engrossed on plain parchment,'* and 
 filed with the clerk of the declarations.'' The bill in this court could 
 have been formerly filed in term time only.*' But now, although it 
 always describes the defendant as present in court, it may be, and 
 frequently is, filed in vacation ;' in which case it must be entitled of 
 the preceding term ; or, if the cause of action have accrued in vaca- 
 tion, it may be prefaced by a special memorandum, stating the day 
 offilinsit.^ 
 
 ' Vide ante, p. 37, 42, and 43. 
 
 2 1 Wms. Saund. 5th edit. 28. c. 202; 2 id. 415, b. ; Tidd's Pr. vol. 1. p. 321, 
 9th edit. ; 2 Arch. Pr. 119. 2d edit. 
 
 ^ Andr. 217. However, in one case on a special demurrer, the Court, for the 
 sake of keeping up the old established form of " prays relief," &c. proposed an 
 amendment without payment of costs: Barnes, 167. 
 
 •1 Hartop V. Juckes, 1 M. & S. 709. 
 
 •'' In ordinary cases, where the proceedings arc by bill in the Court of King's 
 Bench, the bill is never actually engrossed and filed. The want of it is cured, 
 after verdict, by 18 Eliz. c. 14, and no advantage can be taken of the omission, but 
 by writ of error. It is accordingly omitted (unless in actions against attornies, or 
 officers of the court, or against prisoners in the actual custody of the marshal,) 
 until it becomes necessary, by the defendant's bringing a writ of error upon a 
 judgment by default. 
 
 This difference arises from the fact, that originally the Court of King's Bench 
 had jurisdiction over matters of trespass only, either by original or by bill. A 
 bill was accordingly exhibited where there were two causes of action, one of 
 which consisted of trespass; and after the party was brought by process before the 
 Court, the plaintiff" e.xhibited another bill for his second cause of complaint, which 
 gave rise to the present j)ractice, of exhibiting a bill as a mere matter of form, to 
 bring the party before the ( 'ourt for an alleged but fictitious trespass ; and thus, 
 the Court having obtained jurisdiction, proceeds against the defendant for the real 
 and substantial grievance. 
 
 6 2 Salk. 544 ; 12 Mod. 163 ; Anon. 6 Mod. 106; ibid. 175; Gilb. K.B. 346. 
 
 7 Waghorne v. Fields, 5 T. R, 173; Lane v. Wheat, 1 Doug. 313, n. ; and see 
 8 T. R. 643 ; 2 H. Bl. 60S ; 1 Taimt. 126. 
 
 8 Dodsworth v. Bowen, 5 T. R, 325.
 
 CAP. VII.] RELATIVE TO ATTOKNIES AND SOLICITORS. 153 
 
 Where the bill against an attorney was entitled of the term ge- 
 nerally, being before the cause of action accrued, the Court of King's 
 Bench, on motion, allowed it to be amended, after a writ of error 
 brought, by inserting a special memorandum of the day of filing the 
 same, and gave the plaintiff leave to carry in a new roll, agreeably to 
 the amended bill, and to make the transcript conformable to such 
 new roll, on payment of costs.' But such an amendment cannot be 
 made, after the proceedings are entered on record, without leave of 
 the Court f and in one case they gave the defendant leave to plead 
 de novo upon terms. ^ 
 
 The filing of a bill is viewed as the commencement of an action 
 against an attorney, without notice being served upon him.-» But 
 it is usual in practice, in this court, to file the bill, together 
 with the memorandum of the warrant to sue (if the plaintiff be 
 not an attorney), with the clerk of the declarations in the King's 
 Bench office,'' and to deliver a copy** of it to the defendant or his 
 known agent,'' to which a notice is appended, purporting that the 
 defendant must plead thereto in four days,^ which notice has been 
 decreed sufficient, although the distance betwixt London and the 
 defendant's residence exceed twenty miles f or to stick it up in the 
 King's Bench office, if the defendant reside within ten miles of 
 London and Westminster, and his name be not entered in the book 
 kept in the Master's office.'*^ 
 
 1 Dickinson v. Plaisted, 7 T. R. 474. 
 
 a 7 T. R. 474 ; 1 Chit. Rep. 336 : sed vide 1 M. & S. 232 ; 2 B. & A. 472; s. c. 
 1 Chit. Rep. 277 ; 10 Moore, 194 ; 2 Bing. 469 ; s. c. 1 iAI'Clel. & Y. 202 ; Peters- 
 dorff's Abridg. tit. "Amendment." 
 
 3 Minchin v. Cope, 1 Chit. Rep. 45. 
 
 4 1 Tidd'sPr. 321, 9th edit. 
 
 5 Pay 4c/., or M. if the bill be entitled of a preceding term, 2 Arch. Pr. 120, 
 2d edit. 
 
 The above officer is appointed to receive and make an entry of declarations 
 and bills filed in the Court of King's Bench ; to deliver out the former, and to 
 keep and file the latter ; for which he is entitkd to a fee of 2s. per term fi-om every 
 attorney: R. M. 15 Car. 2. Reg. 3 ; R. E. 19 Car. 2. K. B. ; 1 Tidd's Pr. 322, 
 9th edit. 
 
 6 Where the defendant was served with a copy of the bill before the bill itself 
 was filed, the proceedings were set aside for iiTegularity : Constable v. Edwards, 
 MSS. 1 Tidd's Pr. 322. 
 
 7 Imp. K. B. 10th edit. But which agent, it is said, is not bound to accept it: 
 JMSS. 1 Tidd's Pr. 322, n.f. 9th edit. ; and see 2 Sellon's Pr. 11. 
 
 8 Vide Tidd's Appendix, ch. xiv. s. 20 ; Arch. Forms, 466. 
 
 9 Mann v. Fletcher, 5 T. R. 369. 
 
 JO By a rule of court (R. H. 3,(iieo. 3.) every attorney practising in the Court of 
 VOL. II. X
 
 154 LAW TRACTS. NO. I. [CAP. VII. 
 
 The bill, and copy, were required by the general stamp acts' (the 
 clauses of which are, in this respect, repealed by the 5 Geo. 4. c. 41.) 
 to be written in the usual and accustomed manner. While these 
 acts were in force, the copy of a bill filed against an attorney, partly 
 printed and partly written on one sheet of paper, stamped with a 
 four-penny stamp, which contained several printed counts, two of 
 which were struck out, and which were otherwise much obhterated, 
 and exceeded seventeen common law folios, was held to be irre- 
 gular ; and, it appearing that the bill was framed in the same 
 manner, with the same obhterations, the Court set aside the pro- 
 ceedings altogether.'^ 
 
 2. In the Court of Common Pleas. — In this court a bill may be 
 filed, as in the Court of King's Bench, against an attorney in vacation 
 as well as in term time.^ The defendant, is generally, after it is filed, 
 thrice called in court by one of the criers, with an intimation that he 
 will be forejudged if he do not appear; after which the bill is en- 
 tered with the Prothonotary, and, a rule being given thereon, by the 
 Secondaries, for the defendant's appearance, the bill should be 
 
 King's Bench, and residing in London or Westminster, or within two miles thereof, 
 is directed to enter his name in a book to be kept for that purpose in the Master's 
 office, and also his place of abode, or some other place where he may be served, 
 with notices, summonses, orders, and rules ; and he shall make the like entry as 
 often as he changes his place of abode, or the place where he may be served with 
 such notices, &c. The same rule goes on to order, that if the attorney reside in 
 London or Middlesex, or within ten miles thereof, all notices, summonses, orders, 
 and rules, which do not require personal service, shall be deemed sufficiently 
 served if a copy thereof shall be left at the place stated in the book at the said 
 Master's office, with any person resident at or belonging to such place ; and if the 
 attorney have not entered his place of abode, &c. in the said book, then the fixing 
 up of any notice, or of the copy of any summons, order, or rule, for such 
 attorney in the King's Bench office, shall be deemed a sufficient service, unless the 
 matter be such as shall require a personal service. See 7 Taunt. 145. 
 
 In conformity to this rule, it is usual for practitioners who live remote from the 
 Inns of Court or Chancery, to add to the ])lace of their abode the name and place 
 of abode of some other person, where, and with whom notices, summonses, 
 orders, rules, and other proceedings, that do not require personal service, may be 
 left for them near to such inns. (Imp. K. B. lOth edit. 33. See Lofft. 357.) 
 
 No rules, orders, or notices, or any proceedings, shall be, however, delivered or 
 served later than ten o'clock at night ; and delivery or service after that hour 
 shall be void : R. M. 4 1 Geo. 3. 
 
 • 48 Geo. 3. c. 149, Sched. Part II. ; 55 Geo. 3. c. 184, Sched. Part IL 
 
 2 See Crook v. Eyles, 1 M.& S. 709 ; and see 12 East, 294; 1 D. & R. 662. 
 
 ^ Hartop V. Juckes, 6 Taunt. 347 ; s. c. 2 Mai-sh. 50.
 
 CAP. VII.] RELATIVE TO ATTORNIES AND SOLICITORS. 155 
 
 filed in the Prothonotaries' office till the rule is out, and afterwards 
 with the Custos Brevium.^ 
 
 But it is a rule, that, *' where any bill shall be filed against an 
 attorney of the Court of Common Pleas, no forejudger shall be en- 
 tered against him upon such bill for want of appearance, if the action 
 be laid in London or Middlesex, and such attorney reside within twenty 
 miles of London, nntW four days after notice, in writing, of fihng 
 such bill be given to such attorney or his agent, or left at his usual 
 place of abode, and a rule given for such appearance. And if 
 such attorney reside above twenty miles from London, and the action 
 be laid in any other county than London or Middlesex, then no fore- 
 judger shall be entered till eight days after such notice shall be 
 given, in such manner as aforesaid, and a rule to appear as afore- 
 said ; the said days to be exclusive of the day of giving such 
 notice."^ 
 
 If the defendant appear, in comphance with such intimations, he 
 enters his appearance with the Prothonotary ; and in such case the 
 subsequent proceedings against him are the same as in ordinary 
 cases. Should the defendant, however, remain refractory, and pay no 
 attention to the above notification of process depending against him, 
 the next step that is taken is to enter the proceedings on a roll, 
 which is obtained from the Prothonotary, and the clerk will sign 
 the judgment of forejudger, on an incipitur being first made out 
 thereon. This roll is next handed to the clerk of the warrants : the 
 consequence of which is, that the defendant is forthwith struck off 
 the roll of attornies, and, being no longer entitled to his privilege, 
 is rendered amenable to the common and ordinary process of the 
 court.^ 
 
 3. In the Exchequer, — In this court the bill commences by setting 
 out the special character of the defendant, and the proceedings 
 thereon are similar to those against an attorney of the Court of 
 King's Bench.'* 
 
 2d. Forrn of Action. — Where the action is brought against an 
 
 1 Cas. Pr. C. P. 4 ; 1 Tidd's Pr. 323, 9th edit. Sed vide R. T. 21 Car. 2. Reg. 2. 
 C.P.; Imp.C.P. 7tli edit. 547. 
 
 2 R. H. 11 Geo. 2. Reg. 3. C. P. ; and for the form of notice of a bill so filed, 
 see N.T. 13 Geo. 2. 3 C. P. ; Tidd's Appendix, chap. xiv. s. 2G. For the form of 
 the entry of judgment of forejudger, see Tidd's Appendix, chap. xiv. s. 27. 
 
 3 Barnes, 43. In such case he cannot be restored unless he pay the debt and 
 costs, and then only by means of a rule of court or judge's summons : 1 Tidd's 
 Pr. 324, 9th edit. 
 
 4 I Tidd's Pr. 325, 9th edit.
 
 15G LAW TRACTS. NO. I. [CAP. VII. 
 
 at torncy for negligence, he may be sued either in assumpsit or case. 
 The first is, perhaps, more usual, esi>cciully as the plaintiff' has the 
 advantage of the money counts being inserted, so as to enable him 
 to have the opportunity in some cases of recovering back the money 
 he has paid for the business done, owing to a failure of considera- 
 tion.' 
 
 3d. As to the Venue. — An attorney when defendant has not 
 the privilege of changing the venue to Middlesex, when laid in 
 any other county, except upon the usual affidavit, as in ordinary 
 cases. '- 
 
 4th. As to the Commencement. — The special character in which the 
 defendant is sued is stated ;3 and should it ever occur that the defen- 
 dant combines in himself two characters, which, when taken singly, 
 it would be requisite to notice in legal proceedings, it suffices to de- 
 signate the defendant by his professional character, so long as no 
 infringement is made on the privileges otherwise belonging to him. 
 Thus, a defendant, who is an attorney, and also a member of parlia- 
 ment, may be sued as an attorney, without noticing his parliamentary 
 privilege. In the case of Gray v, Wilkes,'^ it was urged, that in 
 such instance it would have been better to proceed under the pri- 
 vilege of parliament ; but the Court said, that the object of the first 
 proceeding in a cause was, in general, to bring the defendant into 
 court, and that it would be egregiously absurd to take a mode of 
 proceeding to bring a defendant into court, who, by means of his other 
 privileges, was in court already. 
 
 5th. Statement of the Retainer. — The retaining of the defendant 
 as an attorney should be stated. It will then be implied it was for 
 reward,^ although it is better to insert both allegations. Where a 
 declaration, in an action against an attorney for not taking sufficient 
 security for the payment of an annuity, averred, that, " in considera- 
 
 1 See Petersdorff's Abridg. vol. 2. p. 602, n. 
 
 2 Yeardley v. Roe, 3 T. R. 573. Pope v. Redfearne, 4 Burr. 2027. Lacker v. 
 Harcourt, Carth. 126; s. c. 1 Show. 147. Mills u. Johnson, Pr. Reg. 419; s. c. 
 Ca. Prac. 134. 
 
 a See form, 2 Chit. PI.; 2 Rich. C. P. 90; Plead. Ass. 157. 
 
 4 5 Law Journ. F<.B. 2!K). 
 
 5 Bourne v. Diggles, 2 Chit. Rep. 311 ; and even, allowing that the considei-a- 
 tion was not so adequate as might be desii'ed, it has been in some cases holden, 
 that if a man holds himseJf out as a member of a profession which implies skill, 
 he is bound to afford it, although his undertaking is gratuitous: ibid. 311; and 
 see Puft". lib. 5. c. 4. s. 3 ; Paley's Principles of Moral and Political Philosophy, 
 144 ; and Sir William Jones's Work on Bailments, passim.
 
 CAP. VII.] RELATIVE TO ATTORNIES AND SOLICITOUS. 157 
 
 tion that the plaintiff, at the request of the defendants, would retain 
 and employ them, the defendants," &c. " they (the defendants) un- 
 dertook, and then and there fiiithfully jiromised the yj/ai/i/(^ ^^ V*^^- 
 form and fulfil their duty in the premises" &c. — the Court held, 
 that the fact of retainer was defectively set out, — the word retained 
 by no means importing that they were attorneys, being applicable 
 to the engagement of any one person by another as a master or em- 
 ployer ; and, as observed by the Lord Chief Justice (Abbott) in 
 delivering the judgment of the Court: the promise by the defen- 
 dants was merely, *' to do their duty ;" but it never can be contended 
 that any person so employed without remuneration, is bound in ab- 
 solute duty, at all hazards, not to take an insufficient security. 
 
 The only duty imposed under such a retainer as that above dis- 
 closed, was a duty to act faithfully and honestly, without being guilty 
 of gross negligence or want of integrity. But a man may, when 
 acting most honestly and faithfully, and without any negligence, 
 happen to take an insufficient security. He may have been misled 
 or deceived. He may have taken as much care as is usual with or- 
 dinary men, yet he may have failed, and the security may have turned 
 out insufficient. This may and does daily happen to men investing 
 their own money, where no doubt can exist that all possible ordinary 
 caution is used. 
 
 It is, however, unnecessary to state of what particular court the 
 defendant is an attorney ; and, as it is not required, it may be advis- 
 able to omit it, as the statement must be strictly proved in evidence 
 at the trial.' 
 
 6th. Statement of Subject Matter of Action. — The cause of the in- 
 stitution of the action against an attorney must, of course, depend 
 on the particular circumstances of each individual case. 
 
 In framing a declaration against an attorney for negligently con- 
 ducting a cause, it is sometimes alleged, that the party against whom 
 the action was depending, was justly indebted to the plaintiff. This 
 inducement is not, however, either necessary or advisable ; and the 
 pleader would do well to commence with the statement of the re- 
 tainer, and adopt the following form, averring that, " in considera- 
 tion that the plaintiff, at the special instance and request of the de- 
 fendant, would retain and employ the defendant as an attorney, &c. 
 to conduct an action, &c. at the suit of the said plaintiff against 
 A. B. for the recovery of a large sum of money, which he, the said 
 
 1 Green v. Jackson, Peake, N. P. C. 237.
 
 158 LAW TRACTS. NO. I. [cAP. VII. 
 
 plaintift', then and there claimed to be due and owing to him from 
 the said A. B." The propriety of this allegation, instead of a posi- 
 tive averment of the debt being due, is exemplified by the case of 
 Lee V. Ayrton^ where the plaintiff was nonsuited under the following 
 circumstances : — The action was instituted for suffering A. B. to be 
 superseded. It was averred that A. B. was justly indebted to the 
 plaintiff, but it was proved that the supposed debtor was a married 
 woman, the proof of which being inconsistent with the averment of 
 A. B.'s being justly indebted, rendered it necessary for the plaintiff 
 to be called. 
 
 Although the statement of the particular neglect of duty must be 
 necessarily guided by the facts of each case, and it is in most instances 
 sufficient to declare generally on the duty of the attorney as the 
 plaintiff's agent and legal representative ; it is in some cases advis- 
 able to set out the particular act which the defendant was bound, in 
 conformity with the terms of his retainer, to perform. This aver- 
 ment is generally introduced thus — " And, although it was the duty 
 of the said defendant, under and by virtue of his retainer, and his 
 promise and undertaking to," &c. (stating the specific act of mal- 
 feazance, mis-feazance, or non-feazance,) and then concludes, "never- 
 theless" &c. Even in these cases it is however, in general, proper* 
 at least in one count, to declare generally on the duty of the soli- 
 citor.^ 
 
 It would also appear that a specific damage must be shewn to have 
 resulted from the defendant's negligence. In the case of Dartnall v. 
 Howard and Gihhs^ the two first counts of a declaration alleged, 
 that, in consideration that the plaintiff would retain and employ the 
 defendants to invest a sum of money in the purchase of an annuity 
 for the plaintiff, the defendants undertook to do their duty in the 
 premises ; that the plaintiff did retain and employ the defendants ; 
 that the defendants purchased an annuity for the plaintiff, but did 
 not do their duty in the premises, but, on the contrary, took an in- 
 sufficient security for the payment of an annuity, and that the defen- 
 dants then and there had notice of all the premises, — Chief Justice 
 Abbott decided, that these counts were bad, for not averring a 
 damage sustained by the plaintiff, for although the security was 
 
 1 Peake, N. P. C. 119. Brown v. Jacobs, 2 Esp. 726. 
 
 2 Re]). T. H. 309. For forms, see Petersdorff's Index to Precedents in Civil 
 and Criminal Pleading, Part I. 
 
 3 3 Law Journ. K.B. 246; and see Howell u. Gibbs, 2 Carr. & P. 238.
 
 CAP. VII.] RELATIVE TO ATTORNIES AND SOLICITORS. 159 
 
 insufficient when taken, subsequent circumstances might render it 
 available. 
 
 Sec. 3. — Relative to the subsequent Pleadings. 
 
 1st. Plea of Privilege. 1. Within what time to be pleaded. — The 
 rules, as to pleas of privilege in ordinary cases are, that, after a ge- 
 neral imparlance, the defendant can only plead in bar of the action, 
 and cannot regularly plead to the jurisdiction of the Court, or in 
 abatement;' but, that after a special imparlance, the defendant may 
 plead in abatement, though not to the jurisdiction of the Court.^ 
 Where, however, a bill was filed in vacation, against an attorney, as 
 of the preceding term, with a special memorandum of a subsequent 
 day in vacation, stating the cause of action to have accrued after 
 the last day of term ; and the defendant pleaded a plea in abate- 
 ment, entitled of the following term, without a special imparlance, — 
 the Court of King's Bench held, that this was regular, and set aside 
 a judgment signed as for want of a plea.^ 
 
 2. Nature of the Plea. — Where an attorney is sued out of his own 
 court, his plea of privilege may be considered as a plea to the juris- 
 diction. It is observed, in a note to the Forms of Mr. Chitty,'' that 
 the precedents sometimes commence by defending the wrong and 
 injury, when, §c.; and, that the Courts ought not to take cogni- 
 zance. This, he says, will suffice,'' but adds, that it seems more 
 correct to omit the " when, &c." and only to conclude the plea, by 
 praying judgment, if the Court will take further cognizance of the 
 suit.^ 
 
 On the other hand, where an attorney is sued in his own court, 
 but by improper process, thus, if he be sued as a common person, 
 by latitat, or by original, in the Court of King's Bench, the plea 
 may be considered as an abatement of the writ, and may conclude 
 accordingly.'^ The conclusion already pointed out, whei-e the attor- 
 ney is sued out of his own court, has been, however, deemed suffi- 
 cient in this case.^ 
 
 1 1 Chit. PI. 397, 4th edit. 
 
 2 1 Lutw. 6; 2 Wms. Saunders, 5th edit. 1. e. (2.) 
 
 3 Holme V. Dalby, 3 B. & A. 259 ; s. c. 1 Chit. Rep. 704 ; sed vide Jenkesu. Lyn, 
 2 Show. 145. 4 Vol. ii. ^ See 8 T. II, 631. 
 
 6 See 3T. R. 18G ; Gilb. C.P. 209 ; Lutw. 639 ; Latch. 178. 
 
 7 See Comerford v. Price, Doug. 312. 
 
 8 See Chatland v. Thornley, 12 East, 544 ; and see Causfield v. Warren, Lutw. 
 639; Turton v. Prior, 11 Mod. 168; Jones v. Bodcenor, 1 Lord Raym. 135; 
 S.C. Salk. 1; 3. c. 6 Mod. 310.
 
 KJO LAW TRACTS. NO. I. [CAP. VI 
 
 o. Moile of cottstn/cting the Plea. — An allegation is in general 
 introduced into the plea, '' that the defendant hath prosecuted and 
 defended divers suits and pleas" in the court to which he belongs, 
 " for divers subjects of His Majesty as their attorney." This alle- 
 gation, although generally inserted, is not, however, essentially re- 
 quisite.' 
 
 An averment is next made of the defendant and other attornies, be- 
 longing to the same court as he himself does, being entitled to be 
 sued before the peculiar tribunal to which tliey belong. Extreme 
 accuracy is not, it may be noticed, absolutely required in the state- 
 ment of this immunity, as its existence is referred to '* an ancient 
 and laudable custom," of which the Courts are bound to take 
 notice.- Thus, where an attorney of the Court of King's Bench, in 
 pleading his privilege to an action by original, stated the custom of 
 the court to be, that no attorney ought to be compelled to answer 
 an original writ, unless first forejudged from his ofHce, &c. (which, it 
 will be remembered,^ is not the custom of such court, but of the 
 Court of Common Pleas,) the Court held the plea to be sufficient, 
 as they would take notice of the custom, that an attorney of the 
 Court of King's Bench could only be sued by bill; and observed, 
 that what was stated as to forejudging might be rejected as sur- 
 plusage. •• 
 
 An attorney's privilege may be either pleaded with the profert of 
 a writ of privilege, or of an exem})lication of the record of his admis- 
 sion, upon which the plaintiff must reply nul tiel record, and cannot 
 otherwise deny the defendant's being an attorney ; or as a mere matter 
 of fact without a profert, and then a certiorari shall be awarded, to 
 certify whether he be an attorney or not.^ Should it be sui'mised 
 that the fact of the defendant's being an attorney may be denied, the 
 former mode had better be adopted.'' 
 
 4. Affidavit in support of such Plea. — By the statute of the 4th 
 and 5th of Anne, c. 16. s. 11, " no dilatory plea shall be received in 
 
 1 See 2Lutw. 1666; Com. Dig. "Abatement," D. 6. 
 
 2 See 2 Lord Raym. 869, 898 ; Stokes v. IMason, 9 East, 424, 339. 
 * Ante, p. 154. 
 
 4 Stokes V. Mason, 9 Eaat, 424; and see Ellison v. Newton, Ca. Prac. 150; 
 Reuse v. Parsons, 1 Salk. 1 ; Newton v. Rowland, 1 Lord Raym. 533 ; Buler v^ 
 Pincent, Barnes, 41 ; Farrill v. Head, ibid. 
 
 5 Lil. Ent. 8; 1 Lord Raym. 336; 7 Mod. lOG; 2 Lord Raym. 1172 ; 2 Salk. 
 545 ; 6 Mod. 305 ; Forster v. Cale, 1 Str. 76 ; ibid, 532 ; Ode v. Norcliffe, 1 Salk. 4 ; 
 s. c. 2 Lord Raym. 899 ; s. c. 7 Mod. 97 ; Routh v. Widdell, 2 Lutw. 1664. 
 
 6 See Com. Dig. " Abatement," D. 6 ; Skin. 582.
 
 CAT. VII.] RELATIVE TO ATTORNIES AND SOLICITORS. 161 
 
 any court of record, unless the parties offering such plea do, by affida- 
 vit, prove the truth thereof, or shew some probable matter to the 
 court to induce them to believe that the fact of such dilatory plea is 
 true." Under the latter part of the clause, it will be noticed, that 
 the words probable cause are used — to give due effect to which, the 
 courts have not deemed it necessary to require an affidavit, to verify 
 an attorney's plea of privilege, the truth of such being apparent to 
 them upon an inspection of their own records.^ It is, however, often 
 appended to the plea of privilege." 
 
 7th. Pleas in Bar. 1. Time for pleading. — On the copy of the 
 bill, which, it has been seen,^ must be delivered to the defendant, the 
 following notice to plead is generally, according to the practice of the 
 Court of King's Bench, indorsed, " This is a true notice of a bill 
 
 filed against you, as of this present term, and, unless you 
 
 plead thereto within four days from the date hereof, [or within 
 
 the first four days of next term], judgment shall be signed 
 
 against you by default : dated, &c."^ A rule to plead should be 
 entered, and a plea demanded, as in ordinary cases.^ 
 
 If the bill be filed, and a copy thereof dehvered four days exclu- 
 sive before the end of the term, including Sunday, the defendant 
 must plead as of that term, whatever may be the distance of his resi- 
 dence from London f but, if the copy be not delivered within that 
 time, the defendant may plead at any time within the four first days 
 of the following term." 
 
 2. Nature of the Pleas.— The same pleas may be filed in answer 
 to a declaration against an attorney, as might meet the exigencies of 
 other cases. He may avail himself of every defence he might be 
 otherwise entitled to rely upon. Thus, he may plead his infancy ;^ 
 the Statute of Limitations ; or any other legal answer to the action. 
 
 In adopting the plea of the Statute of Limitations, the defendant 
 may successfully have recourse to it in answer to an action for 
 negligence, although six years may not have elapsed since the dis- 
 
 1 M'Dougall V. Claridge, WSS. ; 1 Tidd's Pr. 6-10, 9th edition ; and sec Anon. 
 6 Mod. 114; 2 Bl. Rep. 1088 ; sed vide, 3 B. & P. 397. 
 
 2 Wlien affixed to the plea it may be either made by the defendant or by a third 
 person : see Pr. Reg. 6; s. c. Barnes, 344. 
 
 3 Ante, p. 159. 4 See Arch. Forms, 466. 
 
 5 See the Books of Practice. 6 6 T. R. .'369 ; 2 Salk. 51/. 
 
 7 R.M.Ann. Reg. 3. a. K.B.; Gilb. K.B.346; Morgan u. Betts, MSS. ; 1 Tidd's 
 Pr. 323, 9th edition ; Imp. C.P. 546, 7th edition. 
 
 8 Blozey v. Cross, Prac. Reg. 9. 
 
 VOL. II. Y
 
 IC)2 LAW TUACTS. NO. I. [CAP. VII. 
 
 covery of the breach of his undertaking. The statute runs from the 
 period wlicn the defendant was guilty of the misconduct alleged 
 against him. ' 
 
 Sect. 4. — Relative to the Evidence. 
 
 In an action for negligence, the plaintiff must prove the retainer of 
 defendant, and must be ready at the trial to substantiate by evidence 
 the material averments in the declaration. He must shew a damage 
 sustained, and not be contented with proving that the act of the de- 
 fendant might have been productive of loss or detriment. The evil 
 complained of, must not be imaginary ; it must subsist at the time 
 the plaintiff is before the Court, and cannot have a retrospective 
 operation, so as to connect it with the period the mistake, of which 
 the attorney may have been guilty, was committed. ^ 
 
 So, in an action against an attorney for negligence, in suffering 
 judgment by default to be signed against the plaintiff, in a suit in 
 which he was defendant, the Court held, that, as the only damage 
 resulting to the plaintiff arose from the judgment signed against 
 him, it was incumbent on him to establish that such judgment had 
 been completed, which could only be done by an examined copy of 
 the record.^ 
 
 The onus 2)rohandi, that diligence, care, and attention would have 
 been ineffectual, lies upon the defendant.^ 
 
 1 Short V. McCarthy, 3 B. & A. 626 ; s. p. Howell v. Young, 2 Carr. & P. 238 ; 
 s. c. 5 B. & C. 259, s. p. 5 B. & C. 149 ; s. c. 7 D. & II. 729 ; and see Battley v. 
 Faulkner, 3 B. & A. 288 ; Brown v. Howard, 2 B. & B. 73 ; s. c. 4 Rloore, 508 ; 
 2 Campb. 162 ; 1 Bligh, .315 ; sed vide Compton v. Chandless, 4 Esp. 20. 
 
 - See Goodyear v. Banks, T. Raym. 19; s. c. 1 Danv. 198; Anderson v. Wat- 
 son, 3 Carr. & P. 214. 
 
 3 Godefrey v. Jay, 1 Moore & P. 23G; s. c. 6 Law Journ. C.P. 62. In this 
 case an attempt was made to prove the judgment by the production of a book 
 from the Prothonotary's office, in which it was said (by the clerk who produced 
 it) that all judgments by default were entered. The inquisition of damages, and 
 the Prothonotary's allocatur of the costs, were also put in : — and see Buller's N.P. 
 228; Rex i. Bellamy, 1 Ry. & Moo. 171- 
 
 The copy of such record, it may be here stated, must be proved by a 
 witness who has examined it line for line with the original, or has examined the 
 copy, while another person read the original : Reid v. ftlargison, 1 Campb. 469. 
 And it is not necessary for the persons examining to exchange papers, and read 
 them alternately: Gyles v. Hill, 1 Campb. 469, n.; Rolf v. Dart, 2 Taunt. 470. 
 It ought also to appear, that the record from which the copy was taken was seen 
 in the hands of the proper officer, or in the proper place for the custody of such 
 records : Adamthwaite v. Syngc, 1 Stark. 183 ; s. c. 4 Campb. 372. 
 
 •» Bourne u. Diggles, 2 Chit. Rep. 311.
 
 CAP. VII.] RELATIVE TO ATTORNIES AND SOLICITORS. 163 
 
 The defendant may, perhaps, rely upon the Statute of Limita- 
 tions. Should it happen, however, that the plaintiff filed his bill 
 in vacation, entitled of the preceding term, he may shew in evi- 
 dence the exact period of its being filed,' so as to defeat such plea. 
 He may, also, establish a subsequent promise or acknowledgment, if 
 such has been made, provided his declaration be so formed as to 
 admit of such evidence." By a late act of parliament,^^ which was 
 ordered to take effect on the 15th day of January, in the year of our 
 Lord, 1829, it is, however, enacted, that, " in actions of debt, or 
 upon the case grounded upon any simple contract, no acknowledg- 
 ment or promise, bywords only, shall be deemed sufficient evidence of 
 a new or continuing contract, whereby to take any case out of the 
 operation of the said enactments, or either of them, or to deprive any 
 party of the benefit thereof, unless such acknowledgment or promise 
 shall be made or contained by or in some wi'iting, to be signed by 
 the party chargeable thereby." 
 
 Should the nature of the action against the attorney relate to a 
 pecuniary and specific demand, — as if it be for goods sold, and the 
 defendant wish to give payment in evidence, and a receipt for the 
 same, dated on the very day of fifing the bill, — it has been decided, 
 that he must shew that such payment was made, and receipt given, 
 before the actual filing of the bill.'' It will not suffice to prove the 
 transactions took place on the same day. The one on which the de- 
 fendant relies must be shewn to have been prior to the other. 
 
 CHAP. vni. 
 
 RELATIVE TO CHANGING ATTORNIES AND SOLICITORS. 
 
 It has been already noticed,^ that during the pendency of an action 
 the client cannot change his attorney without the sanction of the 
 Court, or a Judge's order." Where, however, he obtains a rule of 
 
 » Snell W.Phillips, Peake, N.P.R. 2/5. 
 
 ^ Short V. McCarthy, 3 B. & A. 62G ; sed vide Brown v. Howard, 4 iAIoore, 608 ; 
 s. c. 2 B. & B. 73. 
 
 •^ 9 Geo. 4. c. 14. s. 1. 
 
 4 See 3 Campb. 331. ^ Chap. ii. sect. 4. ante, p. 34. 
 
 6 This is also said to be the rule in criminal cases : Re.x v. Jefts, 2 Bamardist. 
 266.
 
 16 !• LAW TRACTS. NO. I. [CAP. VIII. 
 
 court, or order of a Judge, he may, in all cases, do so,' provided he 
 first pay to the dismissed attorney his bill of costs. ^ 
 
 In order to effect this object, a summons should be taken out, and 
 a Judge's order obtained thereon, a copy of which order should be 
 served on the opposite attorney.^ The rule or order is accordingly 
 drawn up : " On payment of the attorney's bill, to be taxed by the 
 master.""* And it is not requisite, in such cases, to file a new war- 
 rant.^ And, when a new attorney is thus substituted and legally 
 appointed, it is his duty to take notice of all the rules to which his 
 predecessor was liable.'' 
 
 Previously, however, to the order being obtained, the opposite 
 party and his attorney are entitled to look to the attorney originally 
 appointed. He remains the party's legal repi-esentative to all intents 
 and purposes until the determination of his authority is thus noti- 
 fied, and no notice need be taken of proceedings in the name 
 of another attorney. A payment made to the plaintiff's late at- 
 torney, who had been changed without leave of the Court, was ac- 
 cordingly upheld.'^ So, notice of justifying bail,^ or entering a plea 
 by a new attorney, under similar circumstances,^ has been deemed 
 irregular, and the plaintiff is not bound to accept such notice or 
 plea. So, where the defendant pleaded by one attorney, and, with- 
 out any order for changing, applied through the medium of another 
 to be discharged out of custody, on the ground of having obtained 
 his certificate^ the Court refused the application.'** But, where the 
 defendant's attorney refused to proceed to the justification, the 
 Court allowed the bail to appear and justify by their own attorney. 'i 
 So, where the defendant's attorney gave notice of bail, and the bail 
 to the sheriff by their attorney gave notice of adding and justifying 
 other bail, the Court deemed it sufficient. i- And, where the de- 
 
 1 1 Lil. Pr. 134—143; 8 Mod. 306; Anon. 12 Id. 440; M'Pherson v. Rorison, 
 1 Doug. 217 ; Anon. 7 iMod. 50 ; Wood v. Plaint, 1 Taunt. 44. 
 
 2 1 Lil. Pr. 134; Langley v. Stapleton, Barnes, 40. 
 
 3 1 Tidd's Pr. 94, 9th edit. ; 1 Arch. Pr. 29, 2nd edit. 
 
 4 Tidd's Appendix, ch. 4. sec. 6, 7, 9th edit. 
 
 5 Wood V. Plaint, 1 Taunt. 44. 
 
 « Reg. Gen. 1651, K.B. ; ibid, CP. cited 1 Tidd's Pr. 94, 9th edit. 
 
 7 Powel V. Little, 1 Bl. Rep. 8. 
 
 « Hill V. Roe, 6 Taunt. 532 ; s, c. 2 Marsh. 257 ; Kaye v. De Mattos, 2 Bl. 
 1323 ; 7 Taunt. 48 ; s. c. 2 Marsh. 365 ; M'Pherson v. Rorison, 1 Doug. 217, 
 
 9 Berry v. Fisher, 6 East, 549. lo Ginders v. Moore, 1 B. & C. 654. 
 
 n Haggettv. Argent, 7 Taunt. 47 ; s. c. 2 Marsh. 365. 
 
 1- The King v. the Sheriffs of London, in Plomer v. Houghton, 2 B. & A. 604 ; 
 s.c. 1 Chit. Rep. 329; ibid. 81.
 
 CAP. VIII.] RELATIVE TO ATT0RNIE3 AND SOLICITORS. 1G5 
 
 fendant is a prisoner, notice of justification may be given by a new 
 attorney, without an order for changing the attorney previously em- 
 ployed. ' So, where a plea had been put in by a new attorney with- 
 out an order for changing the attorney, it was holden by the Court 
 of Common Pleas, that the plaintiff waived the irregularity by 
 taking the plea out of the office, and keeping it." So, where an ap- 
 pearance was entered in the name of the attorney's agent, and a plea 
 delivered in the name of the attorney, and the plaintiff treated it as 
 a nullity, and signed judgment as for want of a plea, the Court set 
 aside the judgment for irregularity.*'' And, it should be always 
 borne in mind, that these rules do not prevent a party from taking 
 any proceedings in persoji, although he had previously proceeded 
 by attorney.^ 
 
 The client, it is also said, in a court of equity, may change his soli- 
 citor without a previous order of court.^ 
 
 CHAP. IX. 
 
 RELATIVE TO THE CESSATION OF AN ATTORNEY'S PROFESSIONAL 
 
 CHARACTER. 
 
 Sect. 1. — By being struck off the Roll. 
 
 An attorney may abandon his professional character voluntarily, or 
 its privileges and immunities may be wrested from him by the inter- 
 ference of the courts of justice. The latter subject afforded the 
 matter for our investigation, whilst considering an attorney's liabi- 
 lity to the summary jurisdiction of the Court. The general rules 
 governing the different tribunals in the assertion of their mediatorial 
 influence between the client and attorney, and the particular cases 
 which have occupied the attention of our courts, were then stated.^ 
 It will be also found, that the commission of any offence which calls 
 for the interposition of the Courts, and renders it necessary that the 
 offender should be struck off the rolls of the Court, before which he 
 
 1 1 Chit. Rep. 291. 
 
 2 Margerem v. JMakilwaine, 2 N.R. 509. 
 
 3 Buckler v. Rawlins, 3 B. & P. 111. 
 
 4 Lovegrove v. Dymond, 4 Taunt. 009. 
 
 5 Tworti). Dayrell, 13 Ves. 161 ; Merreyweather v. Mellish, ibid. 195. 
 
 6 Vide ante, p. 96—100.
 
 IGO LAW TRACTS. NO. I. [cAP. IX. 
 
 has misconducted himself, disables him in effect from that time 
 to practise elsewhere ; the other tribunals, as a matter of course, 
 adopting the same line of conduct upon an aflidavit distinctly disclo- 
 sing the fact, and subject matter of complaint. ' 
 
 An attorney may be also struck off the roll at his own instance, 
 as for the purpose of being called to the bar. He must, however, 
 on his application for such purpose, produce an affidavit that no 
 proceedings are pending against him for misconduct."'' 
 
 Sect. 2. — Bj/ neglect or inadvertence in obtaining his annual 
 
 Certificate 
 If an attorney neglect to take out his certificate for one whole year, 
 he is expressly declared, by the statute 37 Geo. 3. c. 90. s. 31, to be 
 incapable of practising in court ; and his admission is explicitly 
 rendered null and void.^ The year, which is here alluded to, does 
 not, as has been supposed, run from the time of the attorney's com- 
 mencing practice : it takes its date from the period of admission. 
 Where, therefore, an attorney did not practise until the lapse of a 
 twelvemonth after his admission, and not even then until he had 
 taken out his certificate, but regularly continued in the following 
 years to obtain his certificate, — the Court held, that he was incapa- 
 ble of maintaining any action for business done, whilst he had a 
 certificate. Nothing could remove the difficulty but re-admission.'* 
 This rule is not confined to the Court of King's Bench. A similar 
 determination had taken place in the Court of Common Pleas.'^ 
 
 CHAP. X. 
 
 RELATIVE TO THE REVIYAL OF AN ATTORNEY'S PROFESSIONAL 
 
 CHARACTER. 
 
 Sect. 1. — When requisite, and when allowed. 
 Where an attorney has been struck off the rolls, it does not follow 
 he is never to be readmitted. The offence which has caused his 
 
 1 Vide ante, p. 104 ; and see also In re Coi)e, 4 Law Journ. C.P. 50. 
 
 2 1 Chit. Rep. 557, notes; and see 6 Ves. 11 ; 8 Ves. 33; for the form of such 
 affidavit, see Tidd's Appendix, ch. iii. s. 2. 
 
 3 Vide ante, p. 40 & 4 1 ; and see JEx parte Nicholas, 6 Taunt. 408 ; s. c. 2 Marsh. 
 123. 
 
 ^ V. Halkes, .5 Law Journ. K.B. 99 ; see Ex parte Davis, 1 Chit. Rep. 729. 
 
 5 Ex parte Nicholas, 6 Taunt. 408 ; s. c. 2 Marsh. 123.
 
 CAP. X.] RELATIVE TO ATTORNIES AND SOLICITORS. 167 
 
 name to be erased may not be so lieinous or flagrant as to render 
 him at some future period unfit to resume his professional character. 
 It may not operate as a perpetual disabiUty.' It rests in the discre- 
 tion of the Courts. So, where he has discontinued practice, or has 
 carried on business without taking out his certificate for the space 
 of a twelvemonth, the Courts will readmit upon a proper applica- 
 tion being made to them, sometimes without visiting the applicant 
 with any fine or arrears of duty, at others rendering such payments 
 a preliminary requisite. These rules naturally become the subject of 
 our present inquiries. 
 
 Sect. 2. — Notice of intention to apply for. "^ 
 
 In certain cases the Courts have deemed it necessary to require a 
 notice to be given of a party's intention to apply to be readmitted 
 with the same accuracy, and under the same restrictions as exist 
 upon an original admission. Thus, where an attorney has dis- 
 continued practice after the expiration of his certificate, although in 
 consequence of pecuniary difficulties or illness,^ or of absence 
 abroad,"* the Court of King's Bench require a term's notice to be 
 stuck up and entered at the Judge's chambers, for the purpose of 
 readmission.** But, where an attorney continues to practise after the 
 expiration of his certificate, owing to the neglect and inadvertence 
 or omission of his clerk or agent in omitting to take it out, the 
 Courts will re-admit him on an affidavit disclosing these facts, with- 
 out requiring a term's notice to be given.'' Where, therefore, the 
 attorney had unconsciously practised without his certificate, having 
 been misled by his clerk's misapplying the money given to him for 
 the purpose of taking out his master's certificate, a notice was not 
 deemed essential.'' And, where the certificate of an attorney of the 
 Court of Common Pleas had been, through the mistake of his agent, 
 filed in the King's Bench, where he was admitted for four successive 
 years, such certificate was allowed to be entered and filed in the 
 
 1 Vide ante, p. 104. 
 
 - For forms, see Archbold's Forms, 576. 
 
 3 Ex parte Bartlett, 1 Chit. Rep. 207. 
 
 4 Ex parte Watson, 1 Cliit. Rep. 208. 
 
 5 Ex parte Vauglian, cited 1 Tidd's Pr. 79, 9th edit. 
 
 " Ex parte Davis, 1 Chit. Rep. 673; Ex parte Dent, 1 B. & A. 189; Ex parte 
 Christian, 3 Moore, 578 ; Ex parte Platts, 1 Chit. Rep. 692 ; In re Winter, 8 Taunt. 
 29. 
 7 In re Winter, 1 B. & A. 190, n. a.
 
 lOS LAW TRACTS. NO. I. [CAP. X. 
 
 Court of Common Pleas, on notice of the application being given to 
 the Stamp Office.' 
 
 Where a term's notice is necessary, it has been considered suf- 
 ficient, in the Court of King's Bench, for the attorney to affix it on 
 the outside of the court, in the morning before the sitting of the 
 Court on the first day of the term of which the notice was intended 
 to be given." 
 
 Sect. 3. — As to the imyment of a Fine, or arrears of Duty. 
 
 The rule that guides the Court in awarding fines, and requiring 
 all arrears of duty to be paid, by a party desirous of being readmitted 
 on the rolls of the Court is this :— if the individual has entirely dis- 
 continued practice, during the interval that has elapsed between his 
 having discontinued practice, and his application to be reinstated — 
 no fine or arrears of duty will be imposed ; but if he has, on the 
 other hand, practised, he will be called upon to pay all arrears of 
 duty. Thus, attornies have been readmitted in the Court of King's 
 Bench without paying any fine or arrears of duty, w^here it appeared 
 that they had never practised,^ or had discontinued practice after 
 the expiration of their last certificate,** or, that they were prevented 
 practising from illness,^ or, by being reduced to the situation of a 
 clerk.'' And a similar practice has been followed where the applica- 
 tion was made by a person who had been struck oiF the roll at his 
 own request.'' But, where an agent, employed to take out an attor- 
 ney's annual certificate, has neglected to do so, and the attorney 
 has, from ignorance of the fact, continued to practise, the Court of 
 Kind's Bench has invariably refused to admit without payment of a 
 fine, which is usually 5/., or less, and arrears of duty. 
 
 The Court of Common Pleas have prescribed the same rules to 
 
 1 In re Jones, 4 Moore, 347- 
 
 2 Ex parte Davey, 4 D. & R. G-IG; s. c. 2 Law Journ. K.B. 209; c( vide ante, 
 p. 19. It is said to be usual, and indeed necessary, to serve one of the notices at 
 the office of the SoUcitor of Stamps, Somerset-house, 1 Arch. Pr. C.P. 15. 
 
 3 Ex parte Davis, 1 Chit. Rep. 729; Ex parte iMatson, 2 D. & R. 238; Ex parte 
 Clarke, 2 B. & A. 314 ; s. c. 1 Chit. Rep. 102, n. 
 
 4 El parte Matson, 2 D. & R. 238. 
 
 •■> E^ parte Smith, 1 Chit. Rep. 679; Ex parte Richards, 1 Chit. Rep. 101. 
 fi Ex parte Smith, 1 Chit. Rep. 692; Ex parte Clarke, 1 Chit. Rep. 102, n.; 
 s.c. 2B. 8iA. 314. 
 
 7 Ex parte Callard, 2 B. & A- 315, n. a. 
 
 8 Ex parte Leacroft, 4 B. & A. 90.
 
 CAP. X.] RELATIVE TO ATTOIINIES AND SOLICITORS. 169 
 
 themselves on similar occasions;' and in one case,'- where the attor- 
 ney had practised subsequent to the expiration of his certificate, 
 owing to the clerk's having misapplied money given to him by his 
 master for the purpose of taking it out, the Court required him, 
 besides paying a fine and all arrears of duty, to obtain the consent of 
 the Attorney-General for his readinission. 
 
 These rules may, on first sight, appear arbitrary, and mere practi- 
 cal dogmas ; but, on referring to the act of parliament, it will 
 be seen that the words of the legislature have been expounded 
 on intelligible principles. The words used in the statute 37 Geo. 3. 
 c. 90. s. 31, rendering a person Vvho does not take out his certificate 
 for a twelvemonth incapable of practising without being readmitted, 
 are, " who shall neglect to obtain his certificate."^ Now, how can 
 a person who has ceased to practise, be said to have neglected to 
 take out his certificate ? He has certainly not done so, and must 
 come to the Court to be readmitted before he can again practise. 
 The distinction of the cases consists in the difference betv/een a 
 neglect and the non-performance of an act. The former word implies 
 that some fault has been committed, as when the party has practised 
 without the certificate, and then the Court will oblige him to pay all 
 the arrears, and impose a fine ; but the latter terms merely signify, 
 that the thing has not been done, because there was no reason why 
 it should be done. The party, therefore, who, since taking out his 
 last certificate has not practised, is exactly in the same ^rltuation as a 
 person who is first requesting to be admitted. 
 
 The case of Ex imrte Scrope^ may be here noticed. In that case 
 a motion Mas madfe, that an attorney, who had withdrawn his name 
 from the roll in 17D2, which was after the passing of the 25 Geo. 3. 
 c. 80, and before that of the 37 Geo. 3. c. 90. s. 51, might be re- 
 admitted without paying any fine or arrears of duty, on giving the 
 notices usually required on first admission. A rule for such purpose 
 was made absolute, the statute 37 Geo. 3, regarding the arrears of 
 duty on attornies' certificates, having only a prospective effect. 
 
 Sect. 4. — Rule and Affidavit of Re admission. 
 The rule for readmitting an attorney is a rule to shew cause. 
 When the motion is made for the readmission of an attorney who 
 had ceased to practise, an affidavit must be produced, stating the 
 
 ! See Ex parte Cunningham, 1 Bing. 91 ; s. c. 7 Moore, 410. 
 
 2 In re Winter, 8 Taunt. 129. ^ ^''</'' "ntc, p. AO. 
 
 -t 2Taunt. .•«!. 
 
 VOL. ir. z
 
 170 LAW TRACTS. NO, I. [cAP. X. 
 
 payment of tlic thity on the articles of clerksliip ; tlie admission under 
 them ; and up to what time the attorney obtained his certificate. The 
 aflichivit must also state, tliat the party has not practised during the 
 interval;' and should also, although not actually essential, go on to 
 aver, that the party a])plying is under no apprehensionof any complaint 
 against him.' The deposition should also allege the reason of the 
 certificate not having been taken out, the manner in which the indi- 
 vidual has been employed,^ and, if he has been in trade, his reasons 
 for quitting business."* The affidavit then states, that a term's 
 notice has been given, when necessary, of his intention to apply to the 
 Court, and that notice of his name and place of abode, &c. has been 
 served on the solicitor to the commissioners of stamp-duties.^ 
 
 Where the attorney has not practised since his admission, the 
 affidavit is, of course, somewhat different;'^ but, excepting in the 
 mode of averring his not having taken out his certificate, is essentially 
 the same. 
 
 Where the attorney has practised since his certificate, the Court 
 will require to be satisfied, that the party's not having taken out his 
 certificate arose from the mere neglect of himself or his agent, and 
 not from wilful omission or improper motives." 
 
 Should the application be on the part of a person who has been 
 struck off the rolls at his own request for the purpose of being 
 called to the bar, and it so happen, that he has been actually so 
 called, the affidavit should shew that he has since applied to the 
 Inn of Court, by whom he was called, to be disbarred f and, although 
 he may have never practised, it must be averred, that no proceedings 
 are pending against him ;^ and in fine, the Court must be completely 
 satisfied that he is worthy of being restored."' 
 
 An attorney may be readmitted on the last day of term, when 
 notice has been stuck up during all the term.'^ 
 
 1 Ex parte , 1 Chit. Rep. 316; ibid, 346; Ex parte Bartlett, 1 Chit. Rep. 
 
 207. 
 
 2 Ex parte Smith, 1 Chit. Rep. 692. 
 
 3 Ex parte Saunders, 2 Smith, 154. 
 
 4 £r parte Mayer, 5 Moore, 141. 
 
 5 For the form of this affidavit see Tidd's Appendix, chap. iv. s. 13, 9th edit. ; 
 Archbold's Forms, o/G— 8 ; 1 Chit. Rep. 112, n. 
 
 6 See Archbold's Forms, 577. ^ Ibid, 578. 
 
 8 Cole's case, 1 Doug. 114. 
 
 9 Ex parte 1 Chit. Rep. 567, "•; Moody's case, Barnes, 42. 
 
 10 ErparfeSarabridge, MSS. 1 Tidd's Pr. 90, 9th edit. 
 '1 1 Chit. Rep. 557, in notis.
 
 CAP. XI.] RELATIVE TO ATTORNIES AND SOLICITORS. 171 
 
 CHAP. XI. 
 
 RELATIVE TO ATTORNIES ACTING AS AGENTS. 
 
 This division of our subject claims the reader's attention, the rules 
 and pi'inciples contained in it having been hitherto but cursorily 
 noticed. In perusing the few following pages, it must be however 
 always remembered, that the remarks which have been made on 
 the general conduct, duty, responsibility, rights, and privileges of 
 the profession in general, will be in most cases found equally 
 applicable to the circumstances of agents. The rules that have 
 as yet passed unexpounded will now be accordingly laid before 
 the reader. They will be found to be such as do not respect 
 the general demeanour and liabilities of attornies as a body, but 
 can only be called in question as between the attorney and his 
 agent. 
 
 The period of this branch of the profession being recognized as a 
 distinct body from the attornies originally employed by clients, is 
 not of so early a date as the utility that must arise from the present 
 customs and regulations affecting them would warrant us to expect. 
 So late, in fact, as the time of passing the act of 3 Jac. 1, the 
 London agents were wholly unknown.' They are, therefore, com- 
 paratively speaking, of modern origin; and it cannot fail to be a 
 matter of surprise, that parties living at a distance, such as attornies 
 resident in the metropolis and in the country, should not have 
 had recourse to the means now adopted of expediting causes in- 
 trusted to their care. It is now, however, the invariable and uni- 
 versal practice, for attornies in the country to appoint their agents in 
 town, to prosecute and defend suits ; while attornies resident in 
 London employ their country agents to carry into eftect whatever 
 legal proceedings are necessarily of a local description, such as the 
 execution of writs, or similar matters. 
 
 When this appointment has been once effected, the following 
 rules of practice may be viewed, as governing the legal transactions 
 relative to the prosecution of the causes delegated by the one party 
 to the other. Although country attornies may be concerned as 
 principals, all declarations, pleas, and other proceedings, should not 
 be delivered and carried on in the country, but by the agents in 
 
 1 See Jones v. Price, 1 Sel. N.P. 162.
 
 17j^ law IKACTS. NO. I. [cAP. XI. 
 
 town.i Accordingly, a notice of trial," of set-off,^ of executing a writ 
 of inquiry,' or a countermand or continuance of notice of inquiry,^ 
 should be delivered to, or served on the agent in town ; but a coun- 
 termand of notice of trial may be given in the country.*' And, if the 
 agent of the plaintiflf's attorney give the agent for the defendant 
 time to ])lead, the country attorney cannot sign judgment till that 
 time be expired.' 
 
 Such are the rules adopted by the Court of King's Bench. In the 
 Court of Common Pleas a little dissimilarity prevails. An option is, 
 in many cases, afforded to the party, of giving certain notices, either 
 to the attorney, or his agent. Thus, notice of trial and coun- 
 termands, and notices of executing writs of inquiry and counter- 
 mands, may be given either to the attorney in the country, or to the 
 agent in town.^ Of those things, however, which are to be done 
 only in town, notice must be given to the agent.'-' 
 
 The duties and liabilities of agents to their employers require two 
 or three remarks. As far as relates to their duties, it will suffice to 
 state, that the general principles explained, as being those which 
 ought to actuate solicitors in general when engaged in their profes- 
 sional avocations,'*^ are equally applicable to attornies acting as agents. 
 The instructions transmitted by the attorney to his agent, are, how- 
 ever, in a common way, so specific and determinate in tiieir nature, 
 that there is little need of the exercise of discretion in fulfilling what 
 is required. 
 
 The UabiUtles incurred by attornies acting in the capacity of 
 agents, are also in the same way dependent upon the general rela- 
 tions of principal and agent." The agent is responsible for all acts 
 of a negligent description, or of an unskilful nature, which may 
 
 • ElUvood V. Ellwood, Barnes, 311; s. c. Pr. Reg. 124; Reed v. Brown, Pr. 
 Reg. 280; Ca. Pr. 94, 101, 109; Imp. K.B. 46, 10th edit.; Imp. C.P. 38, 187,7th 
 edit. ; Tidd's Pr. vol. i. p. 9G, 9th edit. 
 
 ^ Tashburn v. Havclock, Barnes, 306. But notice of trial on an old issue may, 
 it is said, be given to the attorney in the country : ibid. 
 
 3 'J aylor v. Cawson, Pr. Reg. 280. 
 
 '* Hayes v. Perkins, 3 East, 568. 
 
 5 Imp. K.B. 415, 10th edit. ; Lee's Diet. Pr. 29, 2nd edition; 1 Tidd's Pr. 97, 
 yth edit. 
 
 f- Wallace f. Willingham, Barnes, 256; 2 Str. 1073; s. c. Ca. Temp. Hard. 309 
 
 ^ 3 B. &P. 111. 
 
 8 ijee Tashburn v. Ilavelock, Barnes, 306. 
 
 9 Ibid ; and see 1 Tidd's Pr. 97", 9th edit. 
 
 1" Vide anil. " See Ex parte Phelps, Barnes, 30.
 
 CAP. XI.] RKLATIVE TO ATTORNIKS AND SOLICITORS. 173 
 
 have been productive of evil, and which he may have answered in 
 damages to his chent. 
 
 This brings us to the exposition of another rule, viz. that the at- 
 torney is in all cases bound by the acts of the agent ; and answerable 
 to his client for any mistakes or negligence that can be brought 
 home to the agent. Thus, where the plaintiff's agent had given the 
 defendant time to plead, and the attorney having, in the meantime, 
 come to town, demanded a plea, and signed judgment, the Court, 
 upon application, set aside the judgment for irregularity.' So, where 
 a plaintiff obtained a verdict, in consequence of the defendant's agent 
 not having informed the defendant of his having been served with 
 notice of trial, it was decided, that the attorney was responsible for 
 this neglect of the agent." And, where an agent in town took 
 money out of court which had been paid in irregularly, the Court 
 held, that the plaintiff was concluded by the act of the agent, and 
 that the irregularity was clearly waived.^ But, although a payment 
 made to the attorney, as has been already shewn, is a payment to 
 the party for whom he is retained— payment to an agent employed 
 by the plaintiff's attorney, does not discharge the defendant, 
 although the former be the attorney on the record.^ 
 
 As regards the agent's bill of costs, the first consideration that 
 naturally arises, viz. wdio are to be viewed as the contracting parties, 
 is presented to us by the decision of Scrace v. Whittlngton/ In 
 that case, it was held, that an attorney employing an agent to do bu- 
 siness for his client, was prima facie liable to the agent for his bill, 
 although the latter was aware of the situation of the different 
 parties ; and that the business to be transacted related to the client's 
 interests. It is, however, at all times a question for the jury, to whom 
 the credit was given. Where, therefore, an attorney of a mortgagee 
 instructed the attorney to a commission of bankruptcy to prepare 
 the deeds for his client to join in the sale ; and the jury had found, 
 that the credit was given to him personally— upon which a verdict 
 had been entered for the plaintiff, the Court, on motion for a new 
 trial, said, " The question as to whom the credit was given, was a 
 mere matter of fact. The jury have decided it ; and we think, that 
 we should not support the respectabiUty of attornies if we disturbed 
 the verdict." 
 
 1 Barnes 256. " Collins v. (irifiin, Barnes, 37. 
 
 3 Griffith V. Williams, 1 T. R. 710. , • ^ Vide ante, p. 59. 
 
 5 2 B. & C. 11 ; s. c. 3 D. & R 195 ; s c. 1 Law Journ. K.B. 221.
 
 171 LAW TKACTS. NO. I. [CAP. XI. 
 
 The remaining point, as to the bill of costs, regards its taxation, 
 and tlic remedies that may be adopted to enforce its payment. It 
 was at one period' considered, that an agent's ])ill was not liable 
 to be taxed. Wliatever doubts, liowever, have been formerly enter- 
 tained of the jurisdiction of the Courts on this head — a current of 
 authorities has establii5hed the practice of referring agency bills for 
 taxation. Thus, in the Courts of King's Bench," Connnon Pleas,^ 
 and Exchequer,'' such practice is now invariably adopted ; the 
 party applying, offering to pay tlie amount into court, as was the 
 practice in all cases of reference to the Master for taxation, at 
 connnon law. They do not refer the bills in terms of the statute : 
 they exercise the jurisdiction independently of its provisions. In 
 a similar manner. Lord Hardwicke, sitting in the Court of Chancery, 
 directed the taxation of a bill of fees and disbursements for agency 
 business.^ And, upon an application of a solicitor in a cause to have 
 his own agent's bill of fees taxed, Lord Thurlow, on the authority of 
 several precedents, made a like order.*^ The bill of an agent to the 
 attorney or solicitor employed by the party, in respect of whose bu- 
 siness the agency charges have been incurred, cannot be, however, 
 taxed on the application of the client.' 
 
 The remedies that may be had recourse to by agents, in order to 
 compel payment of an attorney's bill, are the same as in other cases. 
 The only point that it seems requisite to notice, in reference to 
 actions brought for such purpose, is, that it is not requisite that 
 an agent's bill should be signed or delivered before the commence- 
 ment of an action." And this has relation not to the time when the 
 business was done, but to the period of bringing the action. Where, 
 therefore, an attorney did business for a client, and afterwards and 
 before action the client was admitted an attorney, — the Court held, 
 that it was not necessary to deliver a bill previously to commencing 
 the action, because both parties were attornies when the action was 
 
 • See Anon. 1 Wils. 266. 
 
 ^ Dixon V. Plant, 1 Doug. 199, n. ; Groome v. Syinonds, MSS. 1 Tidd's Pr. 
 332. 
 
 8 Ex parte Bearcroft, ibid. "* \^'ildbore v. Bryan, 8 Price, G77. 
 
 ^ Paget V. Nicholson, Dick. 28.5 ; and in Conner v. Hake, 2 Cox, 173. 
 
 c Binstead v. Barefoot, Dick. 112. The practice with reference to obtaining a 
 taxation is the same as'betwecn attorney and client ; vide ante, p. 7-, and the diffe- 
 rent Ijooks of practice. 
 
 " Wildbore v. Bryan, 8 Price, 677- 
 
 ^ -E*r /)ar<e Bearcroft, i Doug. 199, n.; Nelson r. Garforth, 1 Esp. 220; Jones 
 V. Price, 1 Sel. N.P. 160; Bridges v. Francis, Peakc, N.P.C. 1.
 
 CAP. XI.] RELATIVE TO ATTORNIES AND SOLICITORS. 175 
 
 brought.^ These rules have been ingrafted on the statute 2 Geo. 2. 
 c. 23. s. 23, which is expressly declared not to extend " to any bill of 
 fees &c. due from any attorney or solicitor to any other attorney 
 or solicitor;" but *' every such attorney or solicitor may use such 
 remedies for the recovery of his fees, &c. against such other attor- 
 ney or solicitor, as he might have done before the making of the said 
 act." 
 
 In respect to the lien, it is clearly established, that the town agents 
 have a general lien, for their fees and disbursements, upon the papers 
 in their hands belonging to the attornies in the country by whom 
 they are employed.-' They have also a similar lien upon all papers 
 of the cUent's in the particular cause in which the suitor may happen 
 to be interested.'^ Thus, in the case of Brai/ v. Hine,'* it was 
 holden, that, where the town agents of a country solicitor (since a 
 bankrupt) had received papers from him belonging to his client, for the 
 purposes of his client's business, they have a lien on them against 
 the client, for the amount of money due from him to the solicitor, and 
 from the solicitor to them on account of business done in the cause. 
 And, where the client had, after the solicitor's bankruptcy, paid the 
 agent so much money to obtain such papers, although an action had 
 been previously brought against him by the assignees for the reco- 
 very of it, the Court granted and continued an injunction against 
 the action, on the ground of the agent's lien. And an agent in town 
 for a plaintiff's attorney, has a hen on the postea for his costs in the 
 cause, although the plaintiff dies intestate before the agent obtains 
 possession of it ; for his authority is exercised beneficially for the ad- 
 ministrators of his principal pro tanto, and is not revoked by his 
 death.^ But, where the plaintiff's attorney was indebted to the 
 plaintiff in a greater sum than the amount of the attorney's costs in 
 the cause, the Court of Common Pleas held,— that the agent, to 
 whom the plaintiff's attorney was indebted, on a general account, 
 in a sum greater than the amount of such costs, could not, as 
 against the plaintiff, retain out of the sum recovered by the latter, 
 
 1 .2 H. Bl. 589; see 1 Str. 663 ; 1 Salk. 86. 
 
 2 See Montague and Whittaker on Liens ; Ward v. Hippie, 15 Ves. jun. 297 ; 
 Ex parte Steele, 16 Ves. jun. 164. 
 
 3 Moody V. Spencer, 2D.&R. 6; Ward v. Hippie, 15 Ves. jun. 297 ; Bray v. 
 
 Hine, 6 Price, 203. 
 
 4 6 Price, 203. 
 
 5 Taunton v. Goforth, 6 D. & R. 384 ; s. c. 3 Law Journ. K.B. 229.
 
 17() LAW TRACTS. NO, I. [cAP. XI. 
 
 more than the charge for agency in that particular cause, i And, in 
 Chapman v. Clarke;^ Lord Thurlow said, that the client was a 
 stranger to the agent ; that the credit given by the latter was to the 
 solicitor ; and therefore, from him he must seek payment. And his 
 Lordship further observed : suppose a solicitor's client pays money 
 from time to time as his solicitor, almost to the amount of his bill; 
 and thereby enables him to pay sums to his agent on account gene- 
 rally; if the client were liable to the agent, the latter might place 
 the money so paid to him to the account of those. he suspected could 
 not pay ; and make those who were able to pay, pay twice, which 
 would be absurd and unjust. 
 
 It appears also, that clerks in Chancery may detain any docu- 
 ments that come into their possession, until their bill of fees is paid, 
 and the expenses they have incurred are liquidated ; and this rule 
 prevails, notwithstanding the client has paid the solicitor.^ And, 
 where an attorney employed a clerk in the Crown Office to transact 
 business, and died insolvent,— the Court held, that the latter might 
 compel the client of the former to pay him his fees.^ 
 
 1 White V. the Royal I'xchange Assurance, 1 Bing. 20. 
 •-' 2 Dick. 802. 
 
 3 Farewell v. Coker, 2 P. Wms. 460; Taylor v. Perkins, 2 Ves. jun. Ill ; 
 Wilkins v. Carmichael, 1 Doug. 105; Ex parte Pemberton, 18 Ves. 282. 
 
 4 Waldron's case, 2 Str. 112(3; 3 Burr. 1313.
 
 ADDENDA, 
 
 MANUSCRIPT CASES, RULES OF COURT, 
 
 AND 
 
 OBSERVATIONS ON CASES. 
 
 Page 12. 1. 23, add, " And the Court refused to compel an attor- 
 ney to execute an assignment of articles where the clerk had been 
 guilty of criminal conversation with the attorney's wife, even 
 although the attorney had promised to assign him over. JEx 2}cirte 
 Briggs, 1 Tidd's Pr. 68, 9th edition, MSS." 
 
 14. note 1, add, " In the above case the clerk afterwards bound 
 himself to another attorney, and served him two years, upon the 
 expiration of which time he was again admitted an attorney, upon 
 an affidavit stating, that, for more than three of the five years for 
 which he was originally bound, his service had been given to his 
 master ; but this was held of no avail. In re Taylor, 4 B. & C. 
 341 ; s. c. 6 D. & R. 428 ; s. c. 3 Law Journ. K.B. 242." 
 
 14. After bottom line, add, " The Court of Common Pleas refused 
 to strike an attorney off the roll, on an affidavit of irregular ser- 
 vice — having been opposed by counsel on the same ground at the 
 time he was admitted. 7 Moore, 572; s. c. 1 Bing. 160." 
 
 15. 1. 3 from bottom, after "attorney," read, "And by a rule of 
 court (R. T. 31 Geo. 3. s. 2.) no attorney employed as a writer or 
 clerk by another attorney, shall, during the time he is so employed, 
 have any clerk under articles ; and no service to such attorney 
 shall, during the time he is so employed, be deemed good 
 service." 
 
 29. 1. 28, add, "And the Court have refused to set aside a judg- 
 VOL. II. z*
 
 170* ADDENDA. 
 
 merit for the plaintiff, where an attorney had appeared without 
 authority from the defendant — saying, that they would never do 
 so, where the attorney was a responsible person. 1 Salk. 88; 
 and see 9 East, 471. But in 1 T. R. 62, where an attorney under 
 a forged authority commenced an action for a debt, recovered the 
 amount of it from the attorney, and paid it over to the person 
 from whom he had the authority, the Court held this no bar to an 
 action by the real plaintiff for the same debt." 
 
 Page 34. 1. 23, after " court," add, " So, on the same principle, the 
 Court of Common Pleas decided, that an attorney who conducts a 
 cause is not by his retainer in the cause authorized to sign a note 
 for the allowance of sixpences to a prisoner charged in execution. 
 In the words of the Court, — ' The attorney's authority was deter- 
 mined when final judgment was signed in the cause, and he had no 
 power to sign.' M'Beath v. Cooke, E. T. 1828, C.P. MSS. ; 
 s. c. 6 Law Journ. C. P. 124." 
 
 43. 1. 16, after "privilege," add, "And it has been even holden, 
 that an attorney of the King's Bench may be arrested on an attach- 
 ment of privilege issuing out of the Court of Common Pleas at 
 Lancaster, at the suit of an attorney of that court. Hopkins 
 V. Ferrand, 1 Y. & J. 204, a." 
 
 48 & 49. In corroboration of what has been humbly advanced, 
 and although there has since occurred a Nisi Prius decision of the 
 same import as Williams v. Mudie, a reference may be made to 
 Walker v. Wildman, 6 Mad. 47. It may be also remarked, that, 
 in the edition of Mr. Phillipps's most valuable work on the Law 
 of Evidence, published since the learned Chief Justice decided the 
 case of Williams v. Mudie, Mr. Phillipps states, as a general pro- 
 position, that the privilege of an attorney's not being examined as 
 a witness, extends to all communications made by the client to his 
 attorney in his professional character. 
 
 60. 1. 2, after "client," insert " Hurdy. Moring, 1 Car. & P. 372." 
 
 51. 1. 9, add paragraph, "Where witnesses are ordered out of court, 
 the attorney may remain, and yet be called as a witness — his pre- 
 sence being necessary to the conducting of the cause. Pomeroy 
 v. Baddeley, MSS.; s. c. Ry. & Moo. 430." 
 
 51. note 3, add ''Merle v. Moore, 1 Ry. & Moo. 390." 
 
 53. 1. 22, add, "And, indeed, in the case oi Adams \. Rughy, MSS. 
 the Court of Common Pleas laid it down, that, if an attorney of the 
 Court of Common Pleas be arrested by an attorney of the King's 
 Bench, the former must plead his privilege in abatement, and cannot 
 be discharged on motion."
 
 ADDENDA. 
 
 171* 
 
 Page 60. note 4, add " Williams v. Jones, 5 B. & C. 108." 
 
 61. note 1, add, " And see 3 Geo. 4. c. 69, enabling the Judges of 
 the several courts at Westminster to make regulations respecting 
 the fees of the officers of the Court." 
 
 63. note 3, add, " And where the plaintiff had paid to an attorney the 
 amount of his bill,-^it was held, that he could not, after a reduc- 
 tion of the bill by taxation, maintain an action for the difference. 
 Goiver v. PopJdn, 2 Stark. 85." 
 
 67. 1. 5, from the bottom, after " taxation." add, *' So, where an attor- 
 ney had delivered three several bills — one for business done as an 
 attorney ; another as agent ; and a third for fees due to him as the 
 steward of a manor, for admittances, and holding courts ; — the 
 whole was considered taxable. Luxmore v. Lethbridge, 5 B. & A. 
 898; s. c. 1 D. &R. 511." 
 
 67. note 3, add, '' This has been however done under the recogni- 
 zance ; and the house has called in the assistance of a Master to 
 determine what the amount ought to be ; but that has been con- 
 sidered only as putting the recognizance in force, not as a taxation 
 independent of it, by virtue of any inherent authority possessed by 
 the house, (3 Ves. & Bea. 21). For establishing a taxation of 
 costs on private bills in the House of Lords, it is enacted by the 
 7 & 8 Geo. 4. c. 64. sect. 1 & 2, that, on application made to the 
 clerk of the parliaments as to the costs and expenses of such bills, 
 he shall direct the same to be taxed by such persons as he shall 
 appoint ; and, in actions against persons liable to pay the costs, 
 the speaker's certificate shall have the effect of a warrant to con- 
 fess judgment. And there is a similar provision for the taxation 
 of costs on private bills in the House of Commons, see 6 Geo. 4, 
 c. 123." 
 
 68. note 5, add, ''Stephens v. Davis, Dec. 1829, MSS," 
 
 68. note 7, add, " Wilkinson, demandant; Foster, vouchee, 7 Moore, 
 496." 
 
 71. 1. 15, at the beginning, insert, " An attorney's bill may be taxed, 
 though there was a special agreement between the attorney and his 
 client, that the former should be paid for his time at a certain rate 
 by the day, besides his expenses— (Say. Costs, 321,) or, though he 
 has obtained a warrant of attorney from his client for confessing 
 judgment for the money due upon his bill, and has entered up 
 judgment thereon. (Ibid, 322.) But." 
 
 74. note 4, add, " Benton v. Ballard, MSS. ; s. c. 4 Bing. 161 ; s. c, 
 6 Law Journ. C.P. 115. Jay v. Coals, K.B. MSS. ; s. c. 8 B, 
 & C. 635."
 
 172* ADDENDA. 
 
 Pa<re 75. 1. ~, after "costs," add, " So, where the Master, in taxing, 
 took oft' less than one-sixth, having allowed credit, and not allowed 
 in the original hill what would have made it more, the Court, under 
 circumstances, left each party to pay their own costs of taxation. 
 Gale V. Pakingion, 1 M'Clel. & Y. 354." 
 
 75. note 2, at the end, add, "In this case {Wright v. Soiithwood) 
 where a solicitor engaged in various suits obtained judgment out 
 of court, of a sum of money standing in trust in the cause, and re- 
 tained it towards his costs ; and upon a subsequent taxation of his 
 bill, it appeared, that, at the time he obtained payment of the 
 money, he had, in fact, already been overpaid — the Court refused 
 to charge him with interest, the parties having made considerable 
 delay before they taxed the costs; and there being no fraud 
 or laches imputable to the solicitor." 
 
 80. At the end of section, insert paragraph, "An affidavit of service 
 of declaration in ejectment, and process generally, may be sworn 
 before the attorney in the cause. Doe v. Roe, 2 Y. & J. 284." 
 
 81. At end of 4th section, add paragraph, " Illustrative of the same 
 principle, although unconnected with the immediate decision, may 
 be mentioned the case of Revett v. Harvey, 1 Sim. & Stu. 502. 
 An attorney in that case had taken an infant entitled when of age 
 to property under his care, advanced monies, and taken acknow- 
 ledgments from him that they were for necessaries ; and had, within 
 a month after his coming of age, obtained without the intervention 
 or advice of any other friend on the infant's part a bill in blank — at 
 which time all vouchers were given up or destroyed, — the Court 
 held, that the attorney having placed himself i/z the relatto7i which 
 gave him great influence, the case must be governed by the prin- 
 ciples of guardian and ward, and that he could not conclude the 
 infant by such an acknowledgment." 
 
 88. 1. 26, after " Thus," read, " preparing a warrant of attorney 
 from two, without inserting words to guard against the possibility 
 of one of them dying before judgment, is not such gross negligence 
 as to subject the attorney to an action at his client's suit, — the 
 Court observing, that, although the effect of such an event 
 might have been counteracted by making the warrant joint and 
 several, yet the attorney might not be aware of the importance of 
 contemplating such an event, or of the means of guarding against 
 it. Kettle v. Wood, E. T. 1827, K.B. MSS. So, where, on a 
 reference of disputes between a married woman and A., the attor- 
 nies on both sides signed a consent to add other matters to the re- 
 ference, and the married woman's attorney having no authority to
 
 ADDENDA. 173* 
 
 sign this consent, the award was set aside : — it was held, by Park, 
 J., that the attorney of A. had not, in neglecting to see that the 
 opposite attorney had authority to sign the consent, been guilty of 
 such negligence as prevented his recovering his costs. Edwards 
 V. Cooper, S Car. & P. 277." 
 
 95. note 1, add, "And an attorney who stays proceedings upon an 
 undertaking to pay costs, is bound to fulfil his engagement, though 
 his client die before bail is put in. 10 Moore, 360; s. c. 3 Bing. 
 70." 
 
 96. 1. 3, add as a paragraph, *' It may be here mentioned, that a 
 sheriff's officer may recover from an attorney, his employer, the 
 fees usually allowed for captions on taxation, though more than 
 allowed by 23 H. 6. c. 10. Townsend v. Carpenter, 1 Ry. & Moo. 
 
 314." 
 96. add as a note to subdivision, " Where an attorney who took an 
 estate under a will made a fictitious case for the opinion of the 
 Court, as to what estate he took under it, the Court, thinking 
 no fraud was intended, only fined him. In re Elsam, 3 B. & C. 
 597; s. c. 3 Law Journ. K.B. 75; s. c. MSS." 
 
 101. 1. 2, after "business," read, "as, where he neglects to fee 
 counsel, whereby his client is nonsuited. Say. 50." Note : " The 
 attachment was, however, in this case, ordered to lie in the office 
 a few days, to give the attorney opportunity to make satisfaction 
 to his client." 
 
 102. 1. 16, after costs," add, "So, where an attorney discharged a 
 person in custody at his client's suit, upon receiving from him 
 a security which he knew at the time to be worth nothing — he was 
 ordered to pay the amount of the debt and costs. Say. 169. So 
 where judgment of non i^ros. was signed in consequence of the 
 issue not being made up, the costs of such non pros, were awarded 
 against the attorney. Say. 172." 
 
 102. 1. 28, after "Court," add, "And by the orders in Chancery 
 lately issused in pursuance of the recommendation of his Majesty's 
 commissioners, — it was declared, that where the same solicitor 
 should be employed for two or more defendants, and separate 
 answers shovdd have been filed, or other proceedings had by or 
 for two or more defendants separately, the Master should consider, 
 in the taxation of such solicitor's bills of costs, either between 
 party and party, or between solicitor and client, whether such 
 separate answers or other proceedings were necessary or proper ; 
 and if he was of opinion that any part of the costs occasioned 
 thereby had been unnecessarily or improperly incurred, the same
 
 174* ADDENDA. 
 
 should be disallowed. And it was also ordered, that wherever, upon 
 the hearing of any cause or other matter, it should appear that the 
 same could not conveniently proceed by reason of the solicitor for 
 any party having neglected to attend personally, or by some pro- 
 per person on his behalf, or having omitted to deliver any paper 
 necessary for the use of the Court ; and which, according to its 
 practice, ought to have been delivered — such solicitor should per- 
 sonally pay to all or any of the parties such costs as the Court 
 should think fit to award. So, 'where a proceeding before any 
 of the Masters should happen to fail, by reason of the non-attend- 
 ance of any party, and the Master should not think it expedient 
 to proceed eoc j)nrte, it was declared, that the Master should be at 
 liberty to certify what amount of costs, if any, should be paid to the 
 party attending by the party absent, or by his solicitor or clerk 
 in court personally, as the Master in his discretion should think 
 fit." 
 
 104. 1. 4 fiom bottom, after " undertakings," add *, and insert as 
 follows: "An attorney's undertaking to procure a cognovit in an 
 action brought against his client, is waived by a subsequent decla- 
 ration of the plaintiff's, that he would proceed with the action. 
 Miller v. James, C.P. MSS. ; s. c. 8 Moore, 208." 
 
 106. 1. 9, add, "And where an attorney has been employed by a 
 person to advise on the purchase of a property, he cannot, after 
 contracting for it afterwards on his own account, set up an objec- 
 tion in a court of equity to the title, on the ground of a flaw, 
 of which he neglected to inform his principal. ' A solicitor,' as 
 observed by the learned Judge (the Master of the Rolls), ' was not 
 to take advantage of his title : but it was not merely that ; he must 
 be considered to be well acquainted with the title ; and no defect 
 in it could release him from his engagement. Beevor v. Simpson, 
 June ^0, 1829, MSS." 
 
 109. 1. 29, add paragraph, "Where one of fcwQ solicitors partners 
 had become bankrupt, — it was held, that the Court could not 
 compel the assignees to order the client's papers to be delivered 
 over to the other, without the client's consent. Davidson v. Na- 
 pier, 1 Sim. 21'7." 
 
 129. bottom hne, after " indictment," add, " So, where the plaintiff 
 employed as a solicitor, sued a defendant for his fees, the latter 
 having married one of the parties to the suit, and having eventually 
 received a proportionate part of the property in dispute in right 
 of his wife, under an order of court, — it was held, that he was 
 liable to pay plaintiff the proportion of his bill, although there had
 
 \ 
 ADDENDA. 175* 
 
 been no retainer of the plaintiff by the defendant, and although 
 the bill had not been delivered to the latter, but to a co-defendant 
 who had suffered judgment by default. Gray v. Wainman, 7 
 Moore, 467." 
 138. note 5, add, " C/iampernoun v. Scottf 6 Mad. 93."
 
 LAW TRACTS. 
 
 No. II. 
 
 SUGGESTIONS 
 
 THE COURSE OF STUDY TO BE ADOPTED, 
 
 THE SELECTION OF BOOKS, 
 
 BY PARTIES DESIGNED FOR 
 
 ATTORNIES AND SOLICITORS. 
 
 VOL. II. Sf A
 
 SUGGESTIONS, 
 
 &C. &C. 
 
 The object of the Author, in the following pages, is, to endeavour 
 to point out, how gentlemen intended for Attornies or Solicitors, 
 ought to be educated in their early years ; the mode that should 
 be adopted, when they have finished their general education ; and 
 the most eligible manner in which they should direct their studies 
 during their professional schoolship ; — what books they ought to 
 peruse ; and the most profitable way of amassing knowledge, aad 
 conducing to their ultimate success. 
 
 Law, it has been said, by one alike eminent for his professional 
 attainments, and his general erudition,' is a science, which distin- 
 guishes the criterions of right and wrong; which teaches to establish 
 the one, and prevent, punish, or redress the other ; which is uni- 
 versal in its use and extent — accommodated to each individual, yet 
 comprehending the whole community. It has been accordingly de- 
 signated as the most honourable occupation of the understanding, 
 being the most immediately subservient to the general safety and 
 comfort. " There is not," says Sir James Mackintosh," " in my 
 opinion, in the whole compass of human affairs, so noble a spectacle 
 as that which is displayed in the progress of jurisprudence ; where 
 we may contemplate the cautious and unwearied exertions of a suc- 
 cession of wise men through a long course of ages, withdrawing 
 every case as it arises from the dangerous power of discretion, and 
 
 ' Black. Com. vol. i. 27- 
 
 ^ See his Discourse on the Study of the Lajv of Nature and Xation«, .'58.
 
 IMO LAW TRACTS. NO. II. 
 
 sul)jecting it to inflexible rules ; extending the dominion of justice 
 and reason, and gradually contracting within the narrowest possible 
 limits the domain of brutal force and arbitrary will. This sub- 
 jcvt has been treated with such dignity by a writer who is 
 admired by all mankind for his eloquence, but who is, if possible, 
 still more admired by all competent judges for his philosophy; a 
 writer, of whom I may justly say, that he was ' gravlssimus et di- 
 cendi et iiiteUigendi auctor et magister^ that I cannot refuse myself 
 the gratification of quoting his words: 'The science of jurispru- 
 dence, the pride of human intellect, with all its defects, redundancies, 
 and errors, is the collected reason of ages, combining the principles 
 of original justice with the infinite variety of human concerns.' " 
 
 These remarks are only made to exhibit to the reader, what an 
 extensive field opens before him, for the exercise of those qualifica- 
 tions that adorn and dignify human nature, and thereby to convince 
 him of the arduous nature of the profession, to which he is emulous of 
 belonging. I may be, however, taunted with the hackneyed topic, that 
 the occupations of an Attorney are not those which call for such infor- 
 mation as is so essential in the higher grades of the profession. I may 
 be told, that it suflSces, if the Attorney knows at what office to direct 
 his clerk to make application for a writ — whei'e to file a particular 
 paper, and suchlike mechanical knowledge; and that it is in his power 
 to consult his Pleader, Conveyancer, or Barrister, and thus avoid 
 any dilemma he may have a chance of falling into. In answer to this, 
 I will allow that, in many cases, great extent of knowledge may not 
 be actually requisite ; — but, in the course of an extensive practice, 
 would it be possible for an Attorney to escape the quicksands that 
 would beset him, were he supported by no other aid than an acquain- 
 tance with the mere routine of business ? Could he consult and 
 advise his clients to adopt or refuse a particular line of conduct — 
 whether his advice were to be founded, either on legal or moral 
 grounds ? In the midst of the important questions submitted to 
 him, would he not rather be continually misleading his employer ? 
 His legal adviser could not be always found at his elbow. It 
 might be essentially necessary he should be enabled to give decisive 
 answers, at a moment when he could have no means of referring to 
 any quarter, and must solely depend on what information he himself 
 possessed. All that can be said, is, that the advice of a Barrister or 
 Chamber Counsel is salutary in a high degree when viewed as a 
 dernier resort, in cases of diflSculty, but ought never to justify an 
 
 1 Burke's Works, vol. iii. 134.
 
 YOUNG attorney's COURSE OF STUDY. 181 
 
 Attorney's want of a knowledge of the principles of the science. 
 The details of business and general routine of an Attorney's office, 
 are such as, in many cases, preclude his trusting his client's in- 
 terest to his own observation. The multiplicity of pursuits in which 
 he is engaged renders it imprudent. It would argue but little fore- 
 sight or precaution to direct an important cause through its various 
 stages, without taking advantage of every aid that presents itself. 
 And what is one of those aids, in the case under consideration ? 
 Why, simply this : that a man combining in himself the complex 
 characters of a person practising in different courts, in courts of Com- 
 mon Law and Equity, should have recourse to, and place implicit 
 reliance upon, the opinion of an individual, who has made a par- 
 ticular branch of the profession, or the practice of one court, his 
 distinct and peculiar study. 
 
 It is, therefore, evident, that the mind of an Attorney should, if 
 possible, be stored with as much information, both of a general nature 
 and legal character, as can be attained by him. 
 
 The consideration of our subject may be classed into three dif- 
 ferent periods : 
 
 1st. Previous to the Clerkship. 
 2d. During the Clerkship. 
 
 3d. After the expiration of the period of service. 
 But, before proceeding to the immediate developement of our views, 
 it may be premised, that the Law is of all professions one which 
 parents should abstain froni forcing their children to embrace — nay, 
 it is of all others, one to which, if the mind is not prone, it will never 
 be reconciled. The bent of the genius of the intended pupil should 
 be marked, and a careful examination should be made as to his quali- 
 fications. For instance, the Law Student should be possessed of a 
 tolerable degree of perception. This faculty is allowed to be neces- 
 sary in the pursuit of every science. In the profession of the Law 
 it is indispensable : — a good memory, and intense application, will 
 not quaUfy a man to do complete justice to his client, unless he be 
 endowed with a sufficient share of natural sagacity. 
 
 Again, a retentive memory is, in the profession of the Law, a most 
 valuable faculty. It cannot be supplied by any succedaneum — the 
 common-place book, and memoria technica may be of service ; but 
 can never be used as actual substitutes. The acquisition and reten- 
 tion of legal knowledge must be co-existent. 
 
 Besides perception and memory, that power of the human mind 
 must not be however wanting, which enables us to examine the 
 relative bearing of ideas; their extensive and varied adaptations;
 
 182 LAW TRACTS. NO. II. 
 
 their substantial meaning and tendency ; the use tliat is made of them 
 by others; and their approximation to correctness and soUdity. 
 Judgment it is, that steadies our conceptions. Vivid perhaps at 
 first, impressed upon the mind by a casualty, or entertained by 
 chance, our first view of a subject might be far from proper; the 
 imagination might imbue the mind with an erroneous notion, and 
 induce us to form a hasty, precipitate, and superficial conclusion. 
 Judgment tempers this, and avoids the evils inherent in a quickness 
 of apprehension. 
 
 But with all these acquirements, with all these faculties in their full 
 vigour, the student must be capable of steady and unwearied appli- 
 cation. In the absence of unceasing industry, it is impossible to 
 attain any eminence : in such a case, inferior understandings would 
 frequently outstrip superior abilities. 
 
 1st. Previous to the ClerJiship. 
 
 It is now our duty to consider the conduct of the pupil previous to 
 the Clerkship. 
 
 After the age of six or seven, it is the advice of the writer, that 
 any person intended for the profession of an Attorney should be sent 
 to a public seminary. The advantages to be derived from association 
 with competitors, are so great, and have been so frequently eulogized, 
 that it is unnecessary to dilate upon them. Such seminary should 
 also be, what is generally distinguished by the denomination of a 
 Commercial Academy. Too much time should not be spent on an 
 acquirement of a thorough knowledge of the Latin or other dead 
 languages; although this seems by some to be considered indispen- 
 sable. Mr. Wright, who conveys, in his work addressed to Attor- 
 nies,' many useful and salutary remarks, views this as absolutely 
 essential. (See p. 201 and 205.) All the author would, however, 
 recommend, would be, to learn the rudiments of the language, and 
 not go through a regular course of classical erudition. So much 
 more valuable information is requisite, that the pupil will find ample 
 to fill up his time : — let him be thoroughly grounded in the English 
 language — let him become a good arithmetician,-' and go through a 
 course or two of mathematics — let him study history: ("An acquain- 
 
 1 Advice on the Study of the Law, by William Wright, Esq. Third Edition. 
 And see a Treatise on the Study and Practice of the Law, by Mr. Williams. 
 
 - On this subject, I would subjoin some remarks made by I\Ir. Tompson, in a very 
 useful work, lately published, entitled "Practical Suggestions and Instructions to 
 Young Attornies and Attornies' Clerks." " There is," says he, " one subject too
 
 YOUNG attorney's COURSE OF STUDY. 183 
 
 tance with history, and particularly that of our own country, will be 
 absolutely necessary. Without a knowledge of the history of his own 
 country, no man can become intimately acquainted with his country's 
 laws. Nothing can so well illustrate our admirable constitutional 
 regulations and legal decisions, as a knowledge of the customs and 
 manners of our ancestors, of their establishments, and of the causes 
 of innovations and amendments in our constitutional code'") ; — and 
 let him be made acquainted with geography. The student should 
 also, both at this period of his career and during his Clerkship, read 
 some established author on logic, and also on ethics. Such a course 
 of study is what, with proper care and attention, a young man may 
 finish before he is eighteen ; at which period it would be desirable 
 he should enter a Solicitor's office. 
 
 2d. During the ClerJcsMp. 
 
 The point next to engage our attention is, what is the course of 
 study to be adopted by a clerk serving his articles ? The chief 
 difficulty that here presents itself, is, the reconciling of practice 
 with theory, so as to obviate objections that may be made to too 
 great attention to either. They are, however, so far from being 
 incompatible, that, it is conceived, no serious difficulty will 
 prevent a medium being pointed out. He should not, on the one 
 hand, in the words of Mr. Preston,^ " be taught by form or prece- 
 dent, rather than by principle. He should not be made to copy 
 precedents, without knowing either their application, or those rules 
 ■ on which they are grounded." But, on the other hand, he should 
 not, it is conceived, have his attention directed to the perusal of 
 
 material to the education of a young man intended for the Law, to be passed over 
 unnoticed. A want of skill in figm'es is a very common defect in the profession, and 
 is productive of much inconvenience. A smile may be excited by the conscious- 
 ness which the'Editor of the 2d edition of Mr. Archbold's Bankruptcy Practice, 
 evinces, of the existence of this deficiency in the profession, and his anxious care 
 to assist them. The bankrupt act requires, that a bankrupt's certificate shall be 
 signed by four-fifths, three-fifths, and nine-tenths of the creditors, according to 
 circumstances respectively stated, to which the Editor alluded to subjoins, by way 
 of note, — To find out what number is four-fifths — multiply the whole number of 
 creditors by four, divide the product thereof by five, and the quotient will be the 
 proper number. For three-fifths or nine-tenths, multiply in the same way by three 
 or nine, and divide by five or ten." 
 
 1 The Author cannot refrain from recommending, besides the Historical Authors 
 generally perused, " Miller's Historical View of the English Government." 
 
 2 Preface to Essay on Conveyancing.
 
 ISl LAW TRACTS. NO. 11. 
 
 books on general and civil law. The object ought to l)e, to direct 
 liini to those works which would tend most to elucidate his actual 
 occupations ; *' for, whatever may be the extent of the elementary 
 scale on which he commences, he must bring his theory to a junc- 
 ture at which it will accord with, imbibe, and explain, the actual 
 practice in which he is engaged ; otherwise, the practice will be lost 
 upon hmi, because he will not understand it ; and, if his outline is 
 too large, he will not fill it up to the point of union while his clerk- 
 ship continues."' To use the words adopted in an article in the 
 Law Magazine,' " The object ought to be, not to form a finished 
 jurist ; but a well-informed working attorney." With this view, let 
 the student, during his articleship, universally search out the law 
 appertaining to what his master has deputed him to execute : he will 
 thus combine theory with practice, and avoid a too rigid adherence 
 to either. 
 
 The systematic, and regular, course of reading, the author would 
 recommend, would be as follows : — First, read De Lolme on the 
 British Constitution ; the style is plain and intelligible, and, although 
 it has been termed " a performance deep, solid, and ingenious," ^ it 
 is entitled to credit of a higher cast, that the ideas never seem to 
 partake of abstruseness. Next peruse the 1st vol. of Blackstone's 
 Commentaries ; after which, read the od vol. of the same work, and 
 next the 2d. Then recur to the od vol., following it up with Mr. 
 Stephens' scientific work on Pleading. The author would next 
 recommend a re-perusal of the 2d vol. of the Commentaries, follow- 
 ing that up with Watkins' Principles of Conveyancing. The next 
 work to be studied seems to be Fonblanque's Treatise on Equity, 
 or Maddock's Chancery Practice. Then, if possible, read the 1st 
 Institute, as arranged by Thomas, omitting those titles, or parts of 
 titles, altered or amended by the forthcoming I'eport on our law. 
 Next study Selwyn's Law of Nisi Prius, which book may with 
 much advantage be read twice or three times, along T'ith Mr. Pe- 
 tersdorff 's Supplement to Blackstone's Commentaries, which forms 
 an admirable compendium of the law relating to actions. Then read 
 a work on Evidence, — perhaps the better course would be to read 
 PhilHpps' Treatise; afterwhich Roscoe's Digest on the same subject. 
 By this time, the pupil will be fit to read Chitty's Pleading to ad- 
 
 ' Tompson's Suggestions, p. 8. 
 
 - No. 4. This work will be found by the student a useful remembrancer of the 
 changes going on in the administration and system of our laws. 
 >* See Junius's Letters.
 
 YOUNG attorney's COURSE OF STUDY. 185 
 
 vantage : after which, he should peruse Lord Redesdale's Treatise on 
 Equity Pleadings. I^t the student now read attentively a book on 
 the practice of the courts : as relates to the King's Bench and Com- 
 mon Pleas, Tidd or Archbold ; as relates to the Exchequer of Pleas, 
 the work on that subject, written by Mr. Manning ; and as relates to 
 Chancery, Turner and Venables. Mr. Preston's Treatise on Estates, 
 and the 3d vol. of his Conveyancing, should now be taken up ; as 
 also Mr. Sugden's work on Vendors and Purchasers ; Mr. Coote on 
 Mortgages ; Mr. Watkins on Copyholds by Coote and Morley, or by 
 Mr. Coventry ; Roberts on Wills ; and Mr. Cruise's 6th volume of 
 the Digest, wherein he will find most of the learning contained in 
 Mr. Fearne's work on Executory Devises. It would be highly 
 useful and instructive to the student, however, to peruse Mr. Fearne's 
 admirable essay on the subject of Contingent Remainders and Exe- 
 cutory Devises. "It is generally considered, as a most beautiful 
 combination of logical accuracy, and profound legal learning ; and 
 these are not its only merits ; the style of it, which is peculiar, not to 
 say original, has not Mierely perspicuity and exactness, but much 
 vivacity and elegance."^ Should the above course of reading startle 
 the student, all the author can say, is, he regrets it is not in his power 
 to see how a fvdl and competent knowledge of the law can be ob- 
 tained without it. The 1st Institute is certainly a work that requires 
 no ordinary exertions to wade through ; but should its bulk deter 
 the student, let him, in the order in which it is placed, again peruse 
 the 2d volume of the Connnentaries, with the Abridgment of the 
 Institute, by Hawkins, edited by Mr. Rudall. 
 
 It would be advisable that the student should now peruse Mr. 
 Serjeant Russell's work on Crimes and Misdemeanors ;6 and let him, 
 especially if destined for country practice, carefully read Bott's 
 or Nolan's Poor Laws. 
 
 As a work of general reference, forming a complete substitute 
 for the Common Law Reports, and containing many valuable titles in 
 our law, the author cannot refrain from recommending the student 
 to have always at his elbow,— Mr. Petersdorff's Abridgment of 
 the Rei)orts, and also Mr. Paget's periodical work, the Law 
 Journal. 
 
 The method of reading, and time to be devoted to it, may call for 
 some remarks. All that it is necessary to observe, however, is, that 
 
 5 Law Magazine, vol. i. p. 120. 
 
 6 Last edition, as it incorporates the late amendments in that branch of our 
 jurisprudence. 
 
 VOL. II. ~ B
 
 18G LAW TRACTS. NO. II. 
 
 tlie niiiul should never be permitted to become fatigued ; and in 
 perusing any author, it is recommended to the student to trust to 
 ills memory, and not use common-place books. 
 
 " \\'hat is committed to paper, is seldom committed to the mind : 
 and the observations which are transcribed, are perhaps never recol- 
 lected, until accidentally re-perused. Thus common-place books de- 
 ceive, instead of assist us, and they steal from the mind what it would 
 otherwise retain. For the first two or three years of clerkship, they 
 are not to be adopted ; because, in common-place books, all decisions 
 and points of law which are important should be inserted ; and as, 
 at this period of a clerk's studies, almost every one will be so, he 
 would be induced to insert many which he will so frequently meet 
 with, that he cannot fail to remember them. 
 
 " What is attentively read will be better understood, and more 
 deeply impressed on the mind, by frequently reflecting upon it, than 
 by committing it to paper. Biographers tell us of literary men 
 reading with pens in their hands, to make extracts and remarks ; 
 but probably their extracts were merely references to the work, 
 accompanied by some doubt or useful observations of their own. 
 Why should they copy what they might immediately, when re- 
 quired, find printed ? Students should not thus consume time, 
 which they may much more advantageously employ in reading and 
 reflection. 
 
 ** Since almost every law book has an index, why should common- 
 place books be used ? If the index is a good one, it may, when 
 necessary, be consulted on any particular subject, with as much, and 
 perhaps more, advantage than a common-place book. If it is defec- 
 tive, the reader may, with very little labour, and with great advan- 
 tsi"e to himself, as he peruses the work, easily make a good index. 
 These are my sentiments on common-place books ; but the student 
 should not adopt my opinions before he is convinced of their pro- 
 priety."' 
 
 It is, however of great use to the student, to note his doubts on 
 any subject, to be reserved for further investigation ; and, on many 
 occasions, it is by no means a waste of time, to peruse a chapter or 
 section, shut the book, reflect for half an hour on what you have 
 read, then endeavour to commit your ideas to paper, and afterwards 
 compare them with your original. The author was accustomed, 
 during the progress of his studies, to find the latter method of ma- 
 terial benefit. 
 
 7 See Mr. Wright's Advice.
 
 YOUNG attorney's COURSE OF STUDY. 187 
 
 It would be advisable that the clerk should attend a course of 
 lectures on the Laws of England. A professorship was appointed 
 last year in the University of London, at which period Mr. Peters- 
 dorff commenced delivering a private course^ of Lectures in Lyon's 
 Inn Hall. The advantages to be derived from an attendance on 
 lectures are thus summed up by Mr. PetersdorfF:^ — 
 
 " The student, by subscribing to lectures, opens an entire new 
 avenue for the obtaining information in addition to his previous 
 resources. It fixes an hour in his mind at which he would naturally 
 feel it obligatory upon him, to devote himself to his profession. It 
 diminishes an inclination to exercise the privilege of postponing his 
 intention to study. It affords him an opportunity of removing any 
 difficulty he may have encountered during the progress of his read- 
 ing. It checks the influence of indolence ; relieves the tediousness 
 of private study ; affords a species of pleasure and recreation ; calls 
 into requisition faculties not usually exerted in the perusal of books ; 
 abridges his labours ; improves his memory ; accustoms him to the 
 taking of notes ; familiarizes him with a habit of giving exclusive 
 attention to the arguments of others ; creates in his mind a laudable 
 inclination to disquisitionize ; awakens attention ; removes the im- 
 pression that his advancement is slow ; engenders feelings of gene- 
 rous competition ; and augments and strengthens the reasoning 
 powers. For a lecturer ought not to rest satisfied with giving the 
 necessary information in a plain and didactic style, in short or de- 
 tached sentences. It is his primary duty to excite the zeal, and 
 attract, and stedfastly fix the attention of his hearers ; to anxiously 
 watch the effect produced by each passage ; to repeat and illustrate 
 the same doctrines, if a difficulty in comprehending them be evinced; 
 or pass them rapidly over, according as the complex or simple nature 
 of the topic, and quickness of perception or obtuseness of the minds 
 of his auditory, render copiousness or brevity necessary. If he 
 cannot make himself distinctly understood in one shape, or by one 
 illustration, he ought to have recourse to another form of expression 
 or mode of exemplification, until he is fully satisfied that his positions 
 are sufficiently comprehended, and adequately impressed upon the 
 minds of his auditors. It is this capability of varying the statements, 
 consistently with the acuteness or slowness of perception exhibited 
 by the hearers, which so essentially distinguishes private study from 
 
 8 Mr. Petersdorflf has subsequently published his Course of Lectures. 
 '•> See his Proposal for establishing a course of Lectures on the Theory and 
 Practice of the Laws of England.
 
 IgJi LAW TRACTS. NO. II. 
 
 listening to an experienced public teacher. True it is, that an in- 
 dividual may often acquire more information, if possessed of natural 
 talents, by private application and study, than he can ever attain by 
 availinir himself of any system of instruction derived through the 
 medium of public communication. But it is at the same time to 
 be remembered, that though, by attending lectures exclusively, no 
 student can ever become a complete master of the science, yet 
 the path by which he may reach the object he has in view with 
 greater facility, may be pointed out, and an indiscriminate course of 
 study avoided." 
 
 It may not be inexpedient for the author to hint to the law student 
 the necessity of confining his attention to his own profession. The 
 force of mind must have an operation proportionably powerful as it 
 is directed to one object. The most common error is an indulgence 
 in what is falsely called general knowledge. It too frequently arises 
 from a vain self-conceit ; an over-anxiety to attract attention, and 
 gain a momentary applause. Such pursuits should be always kept 
 subservient to the grand object, viz. that of establishing a superiority 
 in the science of the law. The art of directing, controlling, and 
 concentrating the powers of the mind, is one of much too difficult 
 a nature ever to be lost sight of; and any deviation from what has 
 been just recommended, is too often indulged in, to such an extent, 
 that the consequences of the error become irretrievable. 
 
 3c/. After the Expiration of the Period of Service. 
 
 Subsequent to the termination of the pupil's period of service, it 
 might be highly advantageous to him to spend a twelvemonth in the 
 chambers of a special pleader, conveyancer, or barrister, so as to 
 have the opportunity of copying the most approved precedents, and 
 deriving such farther instruction as might be acquired. This he 
 could do during his clerkship, according to the provisions of the 
 1 and 2 Geo. 4. At all events, he should not be over hasty in com- 
 mencing practice : frequent disappointments occur from a premature 
 beginning. Let him be patient, studious, and vigilant, in searching 
 for the most apposite commencement of his career. On this subject, 
 Mr. Tompson has some very judicious remarks,'** with referring to 
 
 10 See his work, p. 29. In the subsequent part of Mr. Tompson's book, he goes 
 on to point out a general method of office arrangement; how the accounts ought 
 to be kept ; and afterwards, has thrown out such practical suggestions as might 
 prove serviceable in directing what measures should be taken, for clients, in the
 
 YOUNG attorney's COURSE OF STUDY. 189 
 
 which, the author will close his observations, hoping that the hints 
 thrown out as to the course of study to be pursued, may prove the 
 means of benefiting some of those who may choose to peruse the 
 foregoing pages. 
 
 different departments of conveyancing, in actions at lav/. Chancery business, &c. 
 Mr. Tompson states, that his book is not intended for the perusal of experienced 
 professional men ; but solely for the use of the junior branches of the profession : 
 the author would recommend a perusal of this work.
 
 TABLE OF THE CASES 
 
 Deferred to 
 
 IN THE 
 
 TREATISE ON THE LAW OF ATTORNIES 
 
 AND 
 
 INDEX. 
 
 2C
 
 [193] 
 
 TABLE OF THE CASES 
 
 REFERRED TO 
 
 TREATISE ON THE LAW OF ATTORNIES. 
 
 Abbott V. Rice .. 128,139, 
 
 Ackerman ats. Board 
 
 Adams v. Claxton 
 
 Adams ats. Figes 
 
 Adams ats. Hopwood 
 
 Adams v. Luck 
 
 Adams v. Malkin 
 
 Adams v. Rughy — Addenda . - 1 
 
 Adamthwaite v. Synge 
 
 Adcock ats. Dodd 
 
 Adlington v. Appleton 
 
 Aiscough ats. Lunn 
 
 Aitcheson v. Madock 
 
 Aitkin, i7i re . . . . 97, 
 
 Alger V. HefTord . . 
 
 Allen ats. Coke 
 
 Allen ats. Doe dem. Humjihreys 
 
 Allen ats. Wadworth . . . . 99, 
 
 Allingham v. Flower 
 
 Allison, ex parte 
 
 Allison V. Rayner .. 119, 
 
 Allison ats. Stewart . . 
 
 Alston ats. Joiinson .. 
 
 Ambrose V. Rowe .. •• 122, 
 
 Amey v. Long . . • • 
 
 Anderson V. May .. 70,131, 
 
 Anderson v. Watson . . • • 93, 
 
 Anderton ats. Dyott 
 
 Andrews ats. Jupp • • • • 49 
 
 Annesly v. Earl of Anglesea . . 46 
 
 Anon. ats. Atkins 
 
 ats. Attorney General on the 
 
 relation of Bradley 
 
 V. Barton 
 
 ats. De Wolfe . . 97, 
 
 ats. Evans .. .. 97, 
 
 ex parte 
 
 , 1 Chit. Rep. 316, 346, 
 
 557 
 
 V. Halker 
 
 V. Hullet 
 
 in re, 1 D. & R. 529 . . 100, 
 
 V. Jolland 
 
 143 
 49 
 91 
 
 146 
 
 26 
 124 
 112 
 70* 
 162 
 
 80 
 102 
 
 42 
 
 91 
 103 
 138 
 
 29 
 105 
 102 
 
 78 
 141 
 135 
 
 65 
 
 33 
 127 
 
 51 
 132 
 162 
 
 85 
 , 50 
 , 49 
 
 38 
 
 32 
 
 71 
 
 103 
 
 104 
 
 75 
 
 170 
 166 
 
 77 
 105 
 
 90 
 
 Anon. ats. Price 
 
 V. Yates 
 
 1 Chit. Rep. 558, n. 
 
 1 Chit. 714 
 
 Barnes, 38 
 
 12 Mod. 440 
 
 1 Salk. 84 
 
 1 Keb. 89 
 
 1 Salk. 86 
 
 ^ Id. 50 
 
 1 Id. 88 
 
 6 Mod 
 
 E. T. 1820, Mss. 
 
 H. T. 1825, Mss. 
 
 E. T. 1814, Mss. .. 
 
 6 Mod. 114 
 
 1 Wils. 226 
 
 8 Mod. 306 
 
 12 M 440 
 
 . 7 Id. 50 
 
 ex parte, Buck. 475 
 
 6 Mod. 106 
 
 Barnes, 41 
 
 1 Chit. 558 .. 
 
 2 Chit. 155 
 
 2 Law Journ. K.B. 154 
 
 in re, 1 D. & R. 529 
 
 Lofft, 193 .. 
 
 2 Ves. 451 
 
 3 Law Journ. K.B. 106 
 
 Amhl. 252 
 
 12 Mod. 666 
 
 in re, 4 Law Journ. Chanc 
 
 2 Chit. 36 
 
 1 Chit. 557 
 
 1 Arcli. Pr. K.B. 
 
 6 Mod. 187 
 
 (y Mod. 16 .. .. ^ 
 
 in re, 5 Law Journ. C.P. 107 
 
 2 Ves. 25 
 
 Esp. D.N.P. 10 
 
 1 Lord Raym. 738 
 
 12 Mod. 554 
 
 100, 
 
 99, 
 
 00, 
 
 207 
 
 07, 
 
 136 
 
 78 
 
 12 
 
 77 
 
 33 
 
 34 
 
 35 
 
 36 
 
 36 
 
 36 
 
 36 
 
 36 
 
 99 
 
 100 
 
 107 
 
 161 
 
 174 
 
 164 
 
 164 
 
 164 
 
 76 
 
 152 
 
 67 
 
 12 
 
 63 
 
 102 
 
 105 
 
 105 
 
 62 
 
 105 
 
 59 
 
 113 
 
 107 
 
 105 
 
 99 
 
 146 
 
 loo 
 
 100 
 98 
 142 
 132 
 137 
 137
 
 194 
 
 TABLB OF THE CASES 
 
 Appleton ats. Adlington 
 Arjjent ats. HagRCtt 
 Arrowsmilh, ex parte 
 Arrowsniith ats. Wallace 
 Ashford v. Price 
 Aston's case 
 
 Atkins V. 
 
 Atwood ats. Burr . . 
 
 Attoriioy General at the relation 
 
 Bradley v. 
 
 Attorney General v. Brown 
 Aubrey v. Popkin 
 Ayrton ats. Lee 
 
 102, 
 
 of 
 
 70 
 
 102 
 
 lOl' 
 
 108 
 
 78 
 
 i;53 
 
 100 
 
 38 
 
 30 
 
 32 
 
 70 
 
 ,71 
 
 158 
 
 Bacon's case •• 
 
 Baddeley ats. Pomeroy — Addenda 
 
 Badtitle ats. Goodtitle dem. Pye . 
 
 Baikie v. Chandlcss 
 
 Baily v. Jones . . . . . 
 
 Baiiiibridge v. Harrison 
 
 Baker v. Duncalfe . . 
 
 Baker ats. Phillipe 
 
 Balch V. Symes 
 
 Bands v. Bodinner 
 
 Banester v. Bancster 
 
 Banks ats. Goodyear . . 
 
 Barber v. Palmer . . 
 
 Barber ats. Williams 
 
 Barclay ats. Laing 
 
 Barefoot ats. Binstead . . 
 
 Barker v. Braham 
 
 Barker v. Butler 
 
 Barker v. Dacie 
 
 Barker v. the Bishop of London 
 
 Barnard v. Gostling 
 
 Barnard ats. Jackson 
 
 Barnesley v. Powill 
 
 Barnett ats. Gvvilliam 
 
 Barratt v. jMoss 
 
 Bartlett, ex parte . . 
 
 Barton v. 
 
 Barton V. Baynes .. 
 
 Basingstoke, Mayor of, v. Bonner 
 
 Bastcn v. Butter 
 
 Batch ats. Rex 
 
 Batchelor v. Ellis 
 
 Bates V. Pilling 
 
 Bateson v. Hartsink 
 
 Batley v. Faulkner 
 
 Batt V. Vaisey 
 
 Baynes ats. Barton 
 
 Beal's case 
 
 Bearcroft, ex parte 
 
 Beaumont ats. Kine 
 
 Beaumont ats. Williamson 
 
 Beck V. Lewin 
 
 Beer v. Ward 
 
 Beevor v. Simpson — Addenda 
 
 Bell, ex parte 
 
 Bell ats. Coles 
 
 Bell V. Gate .. .. 
 
 Bell ats. Horsely 
 
 Bellamy ats. Pie.K 
 
 Bellew V. Russel 
 
 Bellolt ats. Hewitt 
 
 Bonnet v. Hart 
 
 27 
 
 170* 
 
 80 
 
 91 
 
 98 
 
 145 
 
 40 
 
 133 
 
 140 
 
 41 
 
 94? 
 
 93, 162 
 
 . 42, 54 
 
 . 119 
 
 51 
 
 174 
 
 92 
 
 97 
 
 122 
 
 73 
 
 151 
 
 121 
 
 139 
 
 103 
 
 118 
 
 167, 170 
 
 71 
 
 .. 107 
 
 53 
 
 134 
 
 75 
 
 34 
 
 92 
 
 51 
 
 162 
 
 80 
 
 .. 107 
 
 . . 40, 64 
 
 174 
 
 131 
 
 102 
 
 53 
 
 50 
 
 . . 174* 
 
 139 
 
 114 
 
 77,78 
 
 95 
 
 162 
 
 81 
 
 03 
 
 70 
 
 Bennett, ex parte •• 
 Bennett v. Brindley 
 Bennett ats. Cole 
 Bennett ats. Hall 
 Bennett ats. Rex 
 Bennett ats. Silk . . 
 Benton v. Ballard — Addenda 
 Benton V. Garcia .• .. 
 
 Beresford, ex parte 
 Berkenhead v. Henshaw 
 Berkenhead ats. Rudd 
 Bernard ats. Coggs 
 Bernard v. Winnington 
 Berridge ats. Charlwood 
 Berry v. Fisher 
 Berry v.^ Jenkins 
 Berry ats. Mayor of Norwich 
 Berryman ats. Danser 
 Berryman v. Wise •• 
 
 Besby ats. Radcliffe 
 Betts ats. Morgan 
 Biers ats. Fivans .. 
 
 Bignol V. Bignol 
 Billingsley ats. Craven 
 Bindley ats. Preston . . 
 Binstead v. Barefoot . . 
 
 Birch ats. Dyson 
 Birchinshaw v. Jackson 
 Birkett ats Bulman .. 
 
 Birley ats. Johnson 
 
 Bishop ats. Goring 
 
 Bishop V. Huggins 
 
 Black ats. Russell 
 
 Blackburn ats. Windale 
 
 Blackerby ats. Branthwait 
 
 Blake v. Bunbury 
 
 Blakelock ats. Stevenson 
 
 Blathervvicke ats. Timings 
 
 Blaquiere ats. Hunt 
 
 Bloom ats. Reader . . 
 
 Blozey V. Cross 
 
 Blundell v. Blundell 
 
 IMunt's case 
 
 Board v. Ackerman 
 
 Board v. Parker . . 
 
 Bodcenor ats. Jones 
 
 Bodinner ats. Bands 
 
 Bologne v. Yautrin 
 
 Bonner, hi re . . . . 
 
 Bonner ats. Mayor of Basingtoke 
 
 Boardman v. Sills 
 
 Booth ats. Walmesley .. 
 
 Borduro ats. Vincent 
 
 Borron ats. Rex 
 
 Botham ats. Loveridge 
 
 Bourn ats. Sandom 
 
 Bourne ats. Brooks 
 
 Bourne v. Diggles 
 
 Bowen ats. Dodsworth 
 
 Bower ats. Glaister 
 
 Bovverman ats. Foxall 
 
 Bowes ats. Rex 
 
 Bowes ats. Smith 
 
 Bowles ats. Coan 
 
 Bowles v. Stewart 
 
 Bowyer v. Hoskins 
 
 53 
 
 81 
 128 
 58 
 102 
 97 
 44 
 171* 
 68 
 70 
 62 
 128 
 108 
 43, 53 
 58 
 164 
 85 
 41 
 42 
 150 
 42 
 . 161 
 67 
 72 
 97 
 77 
 174 
 40, 53 
 104 
 . 117 
 106 
 107 
 97 
 97 
 133 
 39 
 80 
 140 
 99 
 77 
 26 
 . 161 
 101 
 14 
 49 
 44 
 , 54, 159 
 41 
 77 
 19 
 53 
 147 
 70 
 28 
 55 
 133 
 66 
 71 
 156, 162 
 126, 152 
 145 
 78 
 77 
 41 
 27 
 49, 101 
 42
 
 IN THE LAW OF ATTORNIES. 
 
 195 
 
 Bowyer ats. Weymouth 
 Bozon V. Falconer . . 
 
 Braceby v. Dalton 
 Bradbury v. Hunter 
 Braham ats. Barker 
 Bramwell v. Lucas 
 Bray v. Hine 
 Bray ats. Robinson 
 Branthvvait v. Blackerby 
 Brenman v. Currint 
 Brian ats. Dovvnes 
 Brichens v. Thorp 
 Bridges v. Francis 
 Bridgewater ats. How 
 Briggs, ex parte — Addenda 
 Brindley ats. Bennett 
 Britten v. Teasedaile 
 Brockhurst, ex parte . , 
 Brooke v. Bryant 
 Brookes, ex parte 
 Brookes v. Hague 
 Brooks V. Bourne 
 Brooks V. Day 
 Brooks V. Mason 
 Broomhead v. Cooke 
 Broomhead ats. Redit 
 Brounsal's case 
 Brown ats. Attorney General 
 Brown v. Brown 
 Brown v. Howard 
 Brown v. Jacobs 
 Brown ats. Reed 
 Brown ats. Richards 
 Browne ats. Kenny 
 Brown's case 
 Bryant, ex parte 
 Bryan ats. Owston 
 Bryan ats. Wildbore 
 Bryant ats. Brooke 
 Brydges ats. Hurd 
 Buckle V. Roach 
 Buckler v. Rawlins 
 Buckley ats. Hopkinson 
 Buckmaster ats. Lambert 
 Buler V. Pincent 
 Bullen ats. Price 
 Bulman v. Birkett 
 Bunbury ats. Blake 
 Bunn V. Guy 
 BmchaU, ex pa7-te 
 Bui'gis ats. Stratton 
 Burnie ats. Pasmore 
 Burr V. Atwood 
 Burrell v. Jones 
 Burstowe ats. Herd 
 Burt ats. Van Sandau 
 Burton v. Chatterton . . 
 Burton ats. Thomson 
 
 Burton ats. 
 
 Burwood, ex parte, in re Howard i 
 
 Bush, ex parte 
 
 Busk V. Lewis 
 
 Butler ats. Barker 
 
 Butler V. Moore 
 
 Butt ats. Senior 
 
 Butter ats. Basten 
 
 141 
 
 Byles V. Wilton 
 
 41 
 
 77 
 
 Byron ats. Crosswell 
 
 138 
 
 lOG 
 
 
 
 100 
 
 Cakish v. Ross 
 
 77 
 
 92 
 
 Cale ats. Forster 
 
 160 
 
 49 
 
 Callaghan v. Harris 
 
 123 
 
 .. 175 
 
 Callard, ex parte 
 
 .. 168 
 
 44 
 
 Calliaud v. Vaughan 
 
 51 
 
 39 
 
 Camden v. Edie 
 
 .. 101 
 
 .. 141 
 
 Candler v. Candler 
 
 60 
 
 .. 126 
 
 Causfield v. Warren 
 
 159 
 
 50 
 
 Capon V. Dillamore 
 
 77 
 
 .. 174 
 
 Carmichael ats. Wilkins 
 
 . 137, 147, 176 
 
 77 
 
 Carpenter, v. Townsend— 
 
 -Addenda 173* 
 
 .. 169* 
 
 Carr ats. Ridley 
 
 40 
 
 128 
 
 Carris v. Richardson 
 
 95 
 
 40 
 
 Cartar's case 
 
 14 
 
 80 
 
 Carter ats. Marsh 
 
 68 
 
 41, 53 
 
 Cave ats. Cogan 
 
 75 
 
 97, 101 
 
 Cass V. Niblett 
 
 98 
 
 128 
 
 Castigan v. Hastier 
 
 .. 101 
 
 71 
 
 Castle ats. Wright 
 
 .. .. 102 
 
 .. 101 
 
 Casvvell ats. INIason 
 
 77 
 
 119 
 
 Caswell ats. Reynolds 
 
 118 
 
 105 
 
 Cawson v. Taylor 
 
 .. .. 172 
 
 77, 78 
 
 Chambers ats. Willett 
 
 112 
 
 99 
 
 Champernounv. Scott — Addenda .. 175* 
 
 70 
 
 Champneys v. Peck 
 
 130 
 
 71 
 
 Chandler ats. Hardwicke 
 
 . . . . 149 
 
 162, 163 
 
 Chandless ats. Baikie 
 
 91 
 
 158 
 
 Chandless ats. Compton 
 
 162 
 
 .. 172 
 
 Chapman ats. Cliapi)lc 
 
 68 
 
 30 
 
 Chappie V. Chapman 
 
 68 
 
 81 
 
 Charlwood v. Bcrridge 
 
 58 
 
 53 
 
 Chartres v. Cusaick 
 
 29 
 
 143, 144 
 
 Chase ats. Christmas 
 
 68 
 
 143 
 
 Chase v. Westmore 
 
 . . . . 140 
 
 . . 174 
 
 Chatland v. Thorney 
 
 159 
 
 41, 53 
 
 Chatterton ats. Burton 
 
 65 
 
 112 
 
 Chippendale's case 
 
 40 
 
 35 
 
 Cholmondley, Earl of, v. Lord Clinton 46, 85 
 
 165 
 
 Christian, ex parte 
 
 .. 167 
 
 SO 
 
 Christmas v. Chase 
 
 68 
 
 138 
 
 Christop V. Coulthard 
 
 .. .. 40 
 
 160 
 
 Church V. Lann 
 
 138 
 
 89 
 
 Claridge ats. M'Dougall 
 
 161 
 
 .. 117 
 
 Claridge ats. Hollis 
 
 139 
 
 80 
 
 Clark ats. Dawson 
 
 .... 75 
 
 60 
 
 Clarke, ex parte 
 
 11, 24, 168 
 
 112 
 
 Clarke v. Taylor 
 
 . . . . 69 
 
 105 
 
 Clarke v. Swaile 
 
 81 
 
 134 
 
 Clarke v. Gorman 
 
 102 
 
 34 
 
 Clarke v. Terrell 
 
 107 
 
 94 
 
 Claxton ats. Adams 
 
 91 
 
 34 
 
 ' Clent ats. Nicholls 
 
 141 
 
 138, 147 
 
 Cliff ats. Marshall 
 
 . . . . 52 
 
 65 
 
 1 Clifford ats. Drew . . 
 
 115 
 
 101 
 
 Clifton ats. Dickson 
 
 134 
 
 71 
 
 Clinton Lord, ats. Earl 
 
 of Chol- 
 
 &Gibbs 96 
 
 mondley 
 
 46, 85 
 
 137, 139 
 
 Clutton V. Purdon 
 
 68, 70 
 
 51 
 
 Coan V. Bowles 
 
 27 
 
 97 
 
 Cobdcn V. Kendrick 
 
 49 
 
 46 
 
 Cockayne ats. Saunder 
 
 42 
 
 106 
 
 1 Cocks V. Ilarman 
 
 .. 103, 108 
 
 134 
 
 ; Codd ats. Mil burn 
 
 123
 
 196 
 
 TABLE OF THE CASES 
 
 Cogaii V. Cave 
 
 Coggs V. Bernard 
 
 Cohen v. Templar 
 
 Coke V. Allen 
 
 Coker ats. Farewell 
 
 Cole V. Bennett 
 
 Coleridge ats. Rex 
 
 Coles V. Bell 
 
 Coles V. Trecothick 
 
 Colling V. Ongley 
 
 Colling V. Trewerk 
 
 Collingridge ats. Rex .. 
 
 Collins V. Griffin 
 
 Collins V. Nicholson 
 
 Collins ats. Watt 
 
 Comerford v. Price 
 
 Comnierell v. Poynton 
 
 Commins ats. Rex 
 
 Compton ats. Chandless 
 
 Conningsby, Lord, v. Steed 
 
 Connington ats. Iveson 
 
 Connor v. Hake . . 
 
 Constable v. Edwards 
 
 Conway, cjc parte 
 
 Cook V. Wilson 
 
 Cooke V. Broomhead 
 
 Cooke ats. M'Beath — Jddeiida 
 
 Cooke ats. Morse 
 
 Cooke V. Settree 
 
 Cooper ats. Edwards — Addenda 
 
 Cooper ats. Read 
 
 Cooper V. Sayer 
 
 Cope, in re 
 
 Cope ats. Minchin 
 
 Copeland v. Watts 
 
 Copland v. Stein 
 
 Copping ats. Knight 
 
 Corfe ats. Cusse 
 
 Corney ats. Cutfield 
 
 Corpus Christ! College, ex parte 
 
 Corson v. Dubois 
 
 Coulthard ats. Christop 
 
 Cowell V. Simpson 
 
 Cox ats. Langslow .. 
 
 Craddoc v. Glin 
 
 Craven v. Billingsley 
 
 Crawford ats. Weld 
 
 Cromack v. Heathcote 
 
 Crook v. Eyles 
 
 Crook V. Wright 
 
 Cross ats. Blozey 
 
 Cross V. Kaye 
 
 Cross ats. Osbaldiston 
 
 Crossley, Clarke and Brierly, case ( 
 
 Crosby v. Leng 
 
 Crossley v. Parker 
 
 Crossley ats. Re.x 
 
 Crossley v. Shaw 
 
 Crosswell v. Byron 
 
 Crowder v. Shee . . G8, 
 
 CufF V. Brown 
 
 CuUen V. the Duke of Queensbery 
 
 Cundale ats. Laing 
 
 Cunningham, ei parte 
 
 Cunningham ats. Warren 
 
 Currint ats. Brunman 
 
 
 75 
 
 Cusaick ats. Chartres 
 
 . . 
 
 29 
 
 , , 
 
 103 
 
 Cusse V. Corfe 
 
 . . 
 
 60 
 
 
 51 
 
 Cutfield V. Corney 
 
 
 35 
 
 
 29 
 
 Cuts V. Pickering 
 
 46, 49 
 
 142 
 
 17G 
 58 
 55 
 
 Cutting ats. Windmill 
 
 
 41 
 
 '.[ 
 
 Dacie ats. Barker 
 
 
 122 
 
 
 114 
 
 Dalby ats. Holme 
 
 
 159 
 
 .. 
 
 81 
 
 Dalton ats. Braceby 
 
 
 106 
 
 
 141 
 
 Daffy V. Oakes 
 
 ,. 
 
 38 
 
 .. 
 
 131 
 
 Dann, in re 
 
 ,, 
 
 67 
 
 
 64 
 
 Darley ats. Embdin 
 
 
 145 
 
 113, 
 
 173 
 
 Dartnall v. Howard & Gibbs 
 
 . . 
 
 158 
 
 .. 
 
 65 
 
 Danser v. Berryman 
 
 
 42 
 
 
 65 
 
 Dart ats. Rolf 
 
 
 162 
 
 38, 
 
 159 
 
 Davey, ex parte 
 
 
 168 
 
 .. 
 
 138 
 
 Davidson v. Napier — Addenda 
 
 
 174* 
 
 
 56 
 
 Davies ats. M'Combie . . 
 
 . , 
 
 147 
 
 
 162 
 
 Davis, ex parte . . 166 
 
 167, 
 
 168 
 
 
 54 
 
 Davis ats. Edmondson 
 
 
 151 
 
 71 
 
 , 95 
 
 Davis ats. Massey 
 
 
 137 
 
 
 174 
 
 Davis ats. Stephens — Addenda 
 
 
 171* 
 
 
 153 
 
 Davis ats. Vaughan 
 
 
 145 
 
 
 102 
 
 Dawson v. Clark 
 
 
 75 
 
 
 80 
 
 Dawson v. Lawley 
 
 
 129 
 
 
 105 
 
 Dax v. Ward 
 
 
 13i- 
 
 
 170* 
 
 Day ats. Brooks 
 
 , , 
 
 101 
 
 
 57 
 
 Dayking ats. Rigly 
 
 
 122 
 
 
 71 
 
 Dayrell ats. Rigley 
 
 .. 
 
 130 
 
 
 173* 
 
 Dayrell ats. Twort 
 
 138, 
 
 165 
 
 
 80 
 
 Delber ats. Filmer 
 
 33, 35 
 
 
 97 
 
 Denew ats. Kaye 
 
 78, 
 
 114 
 
 
 166 
 
 Denison ats. Hayward 
 
 
 124 
 
 
 153 
 
 Dennie v. Elliott 
 
 
 145 
 
 
 51 
 
 Dennis v. Dennis 
 
 
 27 
 
 
 141 
 
 Dent, ex parte 
 
 
 167 
 
 
 92 
 
 Dent v. Lambert 
 
 
 126 
 
 
 60 
 
 De Mattos ats. Kaye 
 
 , , 
 
 164 
 
 
 35 
 
 De Roufigny v. Peale 
 
 
 102 
 
 64, 
 
 103 
 
 Detiilon v. Gale 
 
 
 70 
 
 
 51 
 
 De Woolfe v. 
 
 07, 
 
 103 
 
 .. 
 
 40 
 
 Dicas ats. Phillips 
 
 
 96 
 
 
 140 
 
 Dickens v. Woolcot 
 
 
 73 
 
 .. 
 
 107 
 
 Dickenson ats. Gerard 
 
 • • 
 
 94 
 
 63, 
 
 142 
 
 Dickenson ats. Lawson 
 
 107, 
 
 141 
 
 .. 
 
 97 
 
 Dickinson v. Blaisted 
 
 
 153 
 
 .. 
 
 66 
 
 Dickson v. Clifton 
 
 
 131. 
 
 
 48 
 
 Diggell ats. Wilkinson 
 
 123, 
 
 131 
 
 
 154 
 
 Diggles ats. Bourne 
 
 156, 
 
 162 
 
 
 129 
 
 Dillamore ats. Capon 
 
 
 77 
 
 
 161 
 
 Dixon v. Edwards 
 
 
 77 
 
 
 86 
 
 Dixon ats. Hurst 
 
 73 
 
 , 74 
 
 
 71 
 
 Dixon V. Plant 
 
 
 174 
 
 of, 97, 99 
 
 Dixon ats. Rex 
 
 
 46 
 
 
 93 
 
 Dodemead ats. \'ail]ant 
 
 46, 4S 
 
 , 51 
 
 7C 
 
 , 71 
 
 Dodd V. Adcock 
 
 
 80 
 
 21, 
 
 150 
 
 Dodsworth v. Bowen 
 
 126, 
 
 152 
 
 
 54 
 
 Doe V. Roe — et Addenda 172* . 
 
 
 101 
 
 .. 
 
 138 
 
 Doe dein. Jupp v. Andrews 
 
 , , 
 
 50 
 
 119, 
 
 120 
 
 Doe dem. Humphreys v. Allen 
 
 
 105 
 
 
 17 ' 
 
 Doe dem. Tvvaites v. Roe 
 
 . , 
 
 98 
 
 
 95 ; 
 
 Doncaster, Mayor of, ats. Rex 
 
 
 109 
 
 
 77 
 
 Donne, iii re 
 
 
 13 
 
 .. 
 
 169 
 
 Donovan ats. Pitt 
 
 
 94 
 
 
 120 
 
 Dormer v. Fortescue 
 
 , , 
 
 71 
 
 
 141 
 
 Dottin's case 
 
 
 107
 
 IN THE LAW OF ATTORNIES. 
 
 197 
 
 Dowlman ats. Young 
 Downer v. Fortescue 
 Downes v. Biian 
 Downes ats. Wood 
 Drew V. Clifford 
 Drew V. Rose 
 Du Ba-jre v. Livette . . 
 Dubois ats. Corson 
 Duifin V. Smith 
 Dunbar ats. Pistor 
 Duncalfe ats. Baker 
 Duncan v. Richmond 
 Duppa ats. Townsend 
 Dupper ats. Read . . 
 Dutch East India Company v. 
 Dutoure ats. Ecollier 
 Dwyer v. O'Brien 
 Dymond ats. Lovegrove 
 Dyott V. Anderton 
 Dyson v. Birch 
 
 Eades ats. Graves 
 
 Eakin ats. Harrison . . 
 
 Earl of Anglesea ats. Annesley 
 
 Earl of Bath ats. Jones 
 
 Earl of Uxbridge, in re 
 
 Earle ats. Nicholls 
 
 Eaton ats. Robson 
 
 Ecollier v. Dutoure 
 
 Edie ats. Camden 
 
 Edmonson v. Davis 
 
 Edwards v. Cooper — Addenda 
 
 Edwards ats. Constable 
 
 Edwards ats. Dixon 
 
 Edwards ats. Hawkins 
 
 Edwards ats. Rigby 
 
 Edwards ats. Short 
 
 Elliott ats. Dennie 
 
 Elliott ats. Laidler . . 
 
 Ellis ats. Batchelor 
 
 Ellison V. Kirby 
 
 Ellison V. Newton 
 
 Ellwood V. EUwood 
 
 Elsam, i?i re — ei Addenda, 173* 
 
 Elsam ats. Robinson 
 
 Elvis V. Mercato 
 
 Embdin v. Darly 
 
 Erie ats. Pyne 
 
 Erskine v. Garthshore 
 
 Esdaile ats. Oxenham 
 
 Evans v. ■ . . 
 
 Evans v. Biers 
 Evans v. Jones 
 
 Evans v. P 
 
 Evingdon's case 
 Eyles ats. Crook 
 Eyles ats. Griffith . . 
 
 Falconer ats. Bozon 
 Farewell v. Coker 
 Farnsworth v. Garrard 
 Farrill v. Head 
 Faulkner ats. Batley . . 
 Fawkes v. Pratt 
 Fearne v. Wilson 
 Fearon, in re , . 
 
 
 26 
 
 Fells v. Read 
 
 .. 141 
 
 
 70 
 
 Fenton v. Ruggles 
 
 77, 78 
 
 
 12G 
 
 Ferrand ats. Hopkins — Addenda 
 
 .. 170* 
 
 .. " 7C 
 
 , 81 
 
 Ferneley ats. Hewitt 
 
 69 
 
 .. 115, 
 
 119 
 
 Fielding ats. Rex 
 
 101 
 
 38, 
 
 123 
 
 Fields V. Lewis 
 
 1 24 
 
 4t 
 
 , 50 
 
 Fields ats. Waghorne 
 
 .. 152 
 
 .. 
 
 51 
 
 Figes V. Adams . . 
 
 .. 146 
 
 49 
 
 , 50 
 
 Filmer v. Delber 
 
 33, 35 
 
 
 69 
 
 Finch v. Wilson 
 
 128 
 
 
 40 
 
 Finchett v. Jarratt 
 
 120 
 
 . 
 
 109 
 
 Fisher ats. Barry 
 
 164 
 
 .. 
 
 39 
 
 Fisher v. Fleming . . 
 
 51 
 
 
 143 
 
 Fleming ats. Mowbray . . 
 
 68 
 
 Henriques 30 
 
 Fletcher ats. Mann 
 
 .. 153 
 
 
 74 
 
 Fletcher ats. Pearson 
 
 51 
 
 . . 
 
 101 
 
 Flint, in re 
 
 79, 100 
 
 .. 29, 
 
 165 
 
 Flower ats. Allingham 
 
 78 
 
 
 85 
 
 Floyd V. Nangle 
 
 .. 101 
 
 40 
 
 , 53 
 
 Foot ats. Newton 
 
 59 
 
 
 
 Foote V. Hayne 
 
 50 
 
 
 59 
 
 Forde v. Maxwell 
 
 116 
 
 
 98 
 
 Forster v. Cale 
 
 160 
 
 'y "46 
 
 , 49 
 
 Forster ats. Taylor 
 
 50 
 
 , . 
 
 100 
 
 Fortescue ats. Dormer 
 
 70, 71 
 
 .. 66, 
 
 108 
 
 Fountain v. Young 
 
 50 
 
 .. ¥. 
 
 , 53 
 
 Foxall v. Bowerman 
 
 78 
 
 .. 36 
 
 , 59 
 
 Foxwist V. Tremaine 
 
 28 
 
 
 74 
 
 Francis ats. Bridges 
 
 .. 174 
 
 • 
 
 101 
 
 Francis ats. Martin 
 
 144 
 
 
 151 
 
 Frazer ats. Plenderleath 
 
 70 
 
 
 173* 
 
 Frazer's case 
 
 13 
 
 • • 
 
 153 
 
 Freckleton ats. Yates 
 
 59 
 
 
 77 
 
 Frere ats. Yea 
 
 74, 75 
 
 . 
 
 101 
 
 Frescobaldi v. Kinaston 
 
 28 
 
 
 74 
 
 Frith ats. Williams 
 
 132 
 
 • • 
 
 33 
 
 Frogatt ats. Tapscott 
 
 125 
 
 
 145 
 
 Frost, ex parte 
 
 104 
 
 • • . . 
 
 91 
 
 Frument ats. Welland . . 
 
 .. 127 
 
 , , 
 
 34 
 
 Fuller ats. Randle 
 
 145, 146 
 
 . . M . 
 
 63 
 
 Fuller ats. Taylor . . 
 
 38 
 
 ^ ^ 
 
 160 
 
 Funston, in re, ex parte Palmer 
 
 65 
 
 . • . • 
 
 172 
 
 Furlong v. Howman 
 
 139 
 
 5* .. 
 
 98 
 136 
 
 Furnival ats. Langley 
 
 66 
 
 .. 
 
 105 
 
 Gainsford v. Gi-ammar 
 
 46, 50, 52 
 
 ,. 
 
 145 
 
 Gale ats. Detillon 
 
 70 
 
 . 
 
 144 
 
 Gale V. Pakington — Addenda 
 
 .. 172* 
 
 , , 
 
 118 
 
 Gandasequi ats. Paterson 
 
 94 
 
 . 
 
 139 
 
 Garbutt, ex parte 
 
 100 
 
 ^ ^ 
 
 104 
 
 Garcia ats. Benton 
 
 68 
 
 • • • 
 
 67 
 
 Gardner v. Jessop 
 
 44 
 
 , , 
 
 127 
 
 Gardner ats. Rex 
 
 150 
 
 . 
 
 97 
 
 Garforth ats. Nelson 
 
 . . 174 
 
 
 45 
 
 Garner v. Lanson 
 
 97 
 
 
 154 
 
 Garrard ats. Farnsworth 
 
 .. 134 
 
 
 144 
 
 Garrett ats. Scawen 
 
 54 
 
 
 
 Garthshore ats. Erskine . . 
 
 118 
 
 
 77 
 
 Gascoigne ats. Hutchison 
 
 112 
 
 .. 142, 
 
 176 
 
 Gate ats. Bell 
 
 77, 78 
 
 
 134 
 
 Gate ats. Ormerod 
 
 144 
 
 .. 
 
 160 
 
 Gcllibrand, in re . . 
 
 99 
 
 . . 
 
 162 
 
 Gerard's case 
 
 45 
 
 ., 
 
 101 
 
 Gerard v. Dickenson 
 
 94 
 
 • • • 
 
 64 
 
 Gibbons ats Goodyear . . 
 
 93 
 
 
 67 
 
 Gibbs ats. Howell 
 
 .. 150
 
 1U8 
 
 TABLE OF TIIL: CASES 
 
 Gibes ats. Rhodes 
 
 131 
 
 Hall V. Ilallett 
 
 81 
 
 Gibson v. Jeycs 
 
 81 
 
 Hall V. Oddy . . 
 
 145 
 
 Gibson ats. Turwiu 
 
 139, 112 
 
 Hall ats. Paine 
 
 81 
 
 Gilbert ats. Richie 
 
 78 
 
 Hallet, ex parte 
 
 104 
 
 Gill ats. Parson 
 
 29, 31 
 
 Hallctt ats. Hall 
 
 81 
 
 Ginders v. Moore 
 
 1(J4 
 
 Hamshaw ats. Wadsworth 
 
 48 
 
 Glaisfcr v. Bower 
 
 145 
 
 Ilainson v. Harrison 
 
 112 
 
 Glass ats. Sanderson . . 
 
 70 
 
 Hankey ats. Vernon 
 
 148 
 
 Glassbrooke v. Taylor 
 
 13 i 
 
 Harcourt ats. Hooper 
 
 51, 106 
 
 Glin ats. Craddoc 
 
 C3, 142 
 
 Harcourt ats. Lacker 
 
 156 
 
 Godefrey v. Jay 
 Godson V. Home 
 
 162 
 
 Harcourt ats. Parker 
 
 133 
 
 149 
 
 Harcourt ats. Ramsbottom . . 
 
 39 
 
 Goforth ats. Taunton 
 
 ., 175 
 
 Hardcastle ats. Ridge 
 
 39 
 
 Goldie V. Shuttleworth . . 
 
 52 
 
 Harding ats. Howell 
 
 146 
 
 Goodtitle dcm. Pye v. Badtitle 
 
 80 
 
 Harding v. Purkiss 
 
 26 
 
 Goodwin v. Gibbons 
 
 93 
 
 llardwick v. Chandler 
 
 149 
 
 Goodwin ats. Williams 
 
 114, 133 
 
 Hargrave v. Le Brere 
 
 94 
 
 Goodyear v. Banks 
 
 . 93, 1G2 
 
 Harman ats. Cocks 
 
 103, 108 
 
 Gordon v. Powell 
 
 128 
 
 Harper v. Tahourdin 
 
 77 
 
 Gore, ex parte, in re Turner . . 
 
 65 
 
 Harrington v. Jennings 
 
 101 
 
 Goring v. Bishop 
 
 107 
 
 Harris ats. Callaghan 
 
 123 
 
 Gorman ats. Clarke 
 
 102 
 
 Harris v. Hill 
 
 51 
 
 Gostling ats. Barnard 
 
 151 
 
 Harris v. Ormo 
 
 131 
 
 Gower ats. Guy .. 
 
 .. 127 
 
 Harris ats. Taylor 
 
 106 
 
 Gower v. Popkin — et Addenda, 171* 71 
 
 Harris v. Tremenheerc 
 
 81 
 
 Graham ats. Maughen 
 
 73 
 
 Harrison v. Bainbridge . . 
 
 145 
 
 Grammar ats. Gainsford 
 
 46, 50, 52 
 
 Harrison v. Eakin 
 
 98 
 
 Graves v. Eades 
 
 59 
 
 Harrison ats. Ilamson 
 
 112 
 
 Gray v. Wainman — Addenda 
 
 .. 175* 
 
 Harrison ats. Lawrence 
 
 34 
 
 Gray v. Wilkes 
 
 156 
 
 Harrison ats. Oppenheim . . 
 
 26 
 
 Green v. Jackson 
 
 .. 157 
 
 Harrison ats. Tonilinson 
 
 127 
 
 Green v. Hassel . . 
 
 67 
 
 Hart ats. Bennett 
 
 70 
 
 Green v. Swinford . . 
 
 132 
 
 Hart V. White 
 
 ^3 
 
 Greenside v. Hopley 
 
 77 
 
 Hartop, ex parte 
 
 96 
 
 Greenwood ats. Rex . . 
 
 104 
 
 Hartop V. Juckes . . 94, 
 
 96, 152, 154 
 
 Gregg's case 
 
 67, 68, 71 
 
 Hartsink ats. Bateson 
 
 51 
 
 Gregory ats. Hellings . . 
 
 128 
 
 Harvey ats. Revett — Addenda 
 
 .. 172* 
 
 Gregson, in re 
 
 65 
 
 Hassel ats. Green 
 
 67 
 
 Grell V. Richards 
 
 27 
 
 Hastier ats. Castigan 
 
 101 
 
 Gretton v. Leyburne 
 
 68 
 
 Hatherway, ex parte 
 
 74 
 
 Griffin ats. Collins 
 
 . 113, 173 
 
 Havelock ats. Tashburn 
 
 .. 172 
 
 Griffith V. Eyles . . 
 
 144 
 
 Hawkey ats. Mayne 
 
 109 
 
 Griffith V. Squire 
 
 68,118 
 
 Hawkins v. Edwards 
 
 101 
 
 Griffith V. Williams 
 
 .. 173 
 
 Hawkins v. Howard 
 
 51 
 
 Griffiths V. Tattersall 
 
 .. 129 
 
 Hawkshaw ats. Parkins . . 
 
 . .. 50 
 
 Groomc ats. Vincent 
 
 101 
 
 Hayes v. Perkins . . 
 
 172 
 
 Groomev. Symonds 
 
 ... 174 
 
 Hayne ats. Foote 
 
 50 
 
 Grubb, ex parte .. 
 
 .. 107 
 
 Hayward v. Denison . - 
 
 .. 124 
 
 Gruggen v. White 
 
 102 
 
 Haywood, ex parte 
 
 102 
 
 Gutch ats. Pickford . . 
 
 150 
 
 Hazard v. Lane 
 
 70 
 
 Gutteridge ats. Wilson 
 
 66 
 
 Head ats. Farrill 
 
 160 
 
 Guy ats. Bunn 
 
 60 
 
 Heathcote ats. Cromack 
 
 48 
 
 Guy V. Gower 
 
 .. 127 
 
 Heaton, ex parte 
 
 45 
 
 Gwilliam v. Barnett . . 
 
 . .. 103 
 
 Hefford ats. Alger 
 
 138 
 
 Gwynne v. Toldervy 
 
 53 
 
 Hellings V. Gregory 
 
 .. 128 
 
 Gyles V. Hill 
 
 162 
 
 Henriques ats. Dutch East In 
 
 lia Com- 
 
 Gynn v. Kirby 
 
 . . 102, 107 
 
 pany 
 
 30 
 
 
 
 Henshaw ats. Berkenhead . . 
 
 62 
 
 Haggett V. Argent 
 
 .. 104 
 
 Henson ats. Pearson 
 
 42,53 
 
 Hague, in re, 
 
 104 
 
 Herd v. Burstowe 
 
 34 
 
 Hague ats. Brookes 
 
 .. 128 
 
 Heme ats. Slowman 
 
 46 
 
 Hake ats. Conner . . 
 
 .. 174 
 
 Hewitt V. Bcllott 
 
 63 
 
 Hale ats. Prior 
 
 28 
 
 Hewitt V. Ferneley 
 
 69 
 
 Hall, ex parte, in re Knight . 
 
 103 
 
 Hewitt ats. Nixon 
 
 85 
 
 Hall ats. Knight . . 
 
 99 
 
 Heyden, ex parte 
 
 71 
 
 Hall V. Bennett . . 
 
 102 
 
 Heyshm ats. Sand 
 
 40
 
 IN THE LAW OF ATTORNIES. 
 
 199 
 
 Hickman v. Waller 
 
 .. 
 
 105 
 
 Higgins ats. Taylor 
 
 
 89 
 
 Higgins V. Woolcott 
 
 • • • 
 
 73 
 
 Hill, pa- parte 
 
 .. IG, 97 
 
 , 99 
 
 Hills ats. Gyles .. 
 
 • • 
 
 162 
 
 Hills ats. Harris 
 
 
 51 
 
 Hill V. Humphreys 
 
 68, 115, 122, 
 
 130 
 
 Hill ats. London 
 
 • • • • 
 
 36 
 
 Hill ats. Middleton . . 
 
 145, 
 
 146 
 
 Hillas ats. Jackson .. 
 
 . . 
 
 78 
 
 Hillier v. James 
 
 .. 
 
 67 
 
 Hill V. Roe 
 
 
 164 
 
 Hillyard's case 
 
 • • . • 
 
 122 
 
 Hilton ats. Ramsden 
 
 
 73 
 
 Hindle v. Shackleton 
 
 .. 73, 74 
 
 Hine ats. Bray 
 
 
 175 
 
 Hinton v. Warren 
 
 
 136 
 
 Hippie V. Ward 
 
 • . • • 
 
 175 
 
 Hodding v. Warrand . . 
 
 . . 44, 
 
 100 
 
 Hodgson ats. Kindray 
 
 
 94 
 
 Hodson ats. Rex 
 
 . . 
 
 101 
 
 Hodgson, ex parte, in re 
 
 Temple . . 
 
 51 
 
 Hodgson V. Walker 
 
 
 80 
 
 Hogan's case .. 
 
 
 80 
 
 Holderstaffe v. Saunders . . 
 
 100 
 
 Hole ats. Welsh 
 
 142, 
 
 143 
 
 Hollis V. Claridge 
 
 . • • • 
 
 139 
 
 Hollister ats. Lorymer 
 
 31, 
 
 105 
 
 Holme V. Dalby 
 
 
 159 
 
 Holme ats. Webster 
 
 
 125 
 
 Holt ats. Vincent 
 
 
 21 
 
 Home ats. Godson 
 
 , , 
 
 149 
 
 Hooper V. Harcourt 
 
 51, 
 
 106 
 
 Hooper v. Till 
 
 . . 
 
 69 
 
 Hopkins v. Ferrand — Addenda . . ] 
 
 170* 
 
 Hopkins V. Smith 
 
 . . 
 
 143 
 
 Hopkinson v. Buckley 
 
 
 80 
 
 Hopley ats. Greenside 
 
 . . 
 
 77 
 
 Hopwood V. Adams . . 
 
 
 26 
 
 Home ats. Tabram 
 
 118 
 
 133 
 
 Horseley v. Bell 
 
 
 95 
 
 Horsfall, in re 
 
 • • 
 
 108 
 
 Hoskins ats. Bowyer . . 
 
 
 42 
 
 Houlditch, ex parte 
 
 . . 
 
 63 
 
 Hovil V. Lethwaite 
 
 
 141 
 
 How V. Bridgewater 
 
 . . 
 
 77 
 
 Howard ats. Brown 
 
 162 
 
 163 
 
 Howard ats. Hawkins 
 
 • • • • 
 
 51 
 
 Howard and Gibbs, in 
 
 re, ex parte 
 
 
 Burwood 
 
 
 9(i 
 
 Howard & Gibbs ats. Dartnall 
 
 158 
 
 Howe ats. Stroi.g 
 
 • 
 
 107 
 
 Howell V. Gibbs . . 
 
 . . 
 
 158 
 
 Howell V. Harding . . 
 
 . . 
 
 146 
 
 Howell V. Young 
 
 
 162 
 
 Howman ats. Furlong 
 
 .. 
 
 139 
 
 Howse V. Parker . . 
 
 . . 
 
 139 
 
 Huggins ats. Bishop 
 
 .. 
 
 97 
 
 Hughes, ex parte 
 
 81 
 
 , 106 
 
 Hughes V. Mayre 
 
 103,107 
 
 , 108 
 
 HuUett ats. 
 
 
 77 
 
 Humphreys ats. Hill . . 
 
 68, 115, i22 
 
 ,130 
 
 Humphreys ats. Snee 
 
 
 53 
 
 Hunt V. Blaquiere 
 
 .. 
 
 77 
 
 Hunter ats. Bradbury 
 
 
 100 
 
 Hurd V. Brydges 
 
 .. 
 
 112 
 
 Hurd V. Leach .. .. .. 119 
 
 Hurd V. Moring — Addenda .. 170* 
 
 Hurst's case . . . . . . 45 
 
 Hurst V. Dixon 73,74 
 
 liussey V. Jordan .. .. 44 
 
 Hutchinson V. Gascoigne .. 112 
 
 Hymondsold ats. Myriel . . . . 95 
 
 Ipswich, Gaoler of, ats. Rex . . 80 
 
 Ireson v. Pearman . . . . 90 
 
 Irving V. Viana . . . . 1 24 
 
 Isaacson, in re . . . . . . 1 24 
 
 Iveson V. Connington . . ..71, 94 
 
 Jackson, in re .. . . . . 25 
 
 Jackson v. Barnard . . . . 124 
 
 Jackson ats. Birchinshaw . . . . 104 
 
 Jackson ats. Green .. .. 157 
 
 Jackson V. Hillas .. .. 78 
 
 Jackson ats. Rex . . . . 118 
 
 Jackson, in re, v. Wood . . . . 1 00 
 
 Jacobs ats. Brown .. .. 158 
 
 James, ex parte .. ■• 81 
 
 James ats. Hillier . . . . 67 
 
 James ats. Miller — et Addenda\7i* 96, 105 
 
 Jansen ats. Phillips ,. .. 149 
 
 James ats. Whitfield . . . . 75 
 
 Jaques, in re . . . . . . 25 
 
 Jarrat ats. Finchett .. .. 120 
 
 Jay V. Coaks — Addenda . ■ 171* 
 
 Jay ats. Godefrey . . • . 1 62 
 
 Jefferies ats. Montriou .. .. 134 
 
 Jeffs ats. Rex .. .. .. 163 
 
 Jenkes V. Lyn .. .« ,. 159 
 
 Jenkins ats. Berry . . . . 85 
 
 Jenkins v. Mason .a • • 80 
 
 Jennings ats. Harrison . . . • 101 
 
 Jerome's case . . 82, 1 00 
 
 Jervis ats. Younge . . . . . . 42 
 
 Jessop ats. Gardner . . • . 44 
 
 Jeyes ats. Gibson .. .. 81 
 
 Johnson, ex parte .. •• 76 
 
 Johnson v. Alston . . . . '33 
 
 Johnson V. Birley .. .. 106 
 
 Johnson ats Mills . . . . . . 1 56 
 
 Johnson ats. Penson .. .. 68 
 
 Johnson ats Tipping . . • • 34 
 Johnson ats. Worral . . 1 38, 1 39, 1 43, 
 
 Jolland ats. . . ■' ^ ^P 
 
 Jones, in re • ■ 23, 97, 1 68 
 
 Jones ats. Baily • . • • 96 
 
 Jones V. Bath, Earl of .. .. 1 00 
 
 Jones V. Bodeenor . . 53, 54, 1 59 
 
 Jones ats. Burrell . . . . 94 
 
 Jones ats. Evans . . .. .. 127 
 
 Jones ats. Lee • . • • '30 
 
 Jones V. Leighton .. •■ '05 
 
 Jones V. Pearle . . • • ■ - 1 47 
 Jones V. Price •• 116, 171, 174 
 
 Jones ats. Read • • • • 54 
 
 Jones V. Stevens . . • • 150 
 
 Jones ats. WiWiams— Addenda . . 170* 
 
 Jones ats. Wyllio . • • • 77 
 
 Jordan ats. Hussey . . • • 44 
 Juckesats. Hartop .. 94,96,152,154 
 
 Juw) V. Andrews .. .. •• 49, 5W 
 
 2D
 
 JiOO 
 
 TAbLE OF THE CASES 
 
 Kaye ats. Cross 
 Kayc V. Dc Mattos 
 Kaye v. Dencw 
 Kemps ats. Ilobson 
 Kendray v. Hodgson 
 Kendrick ats. Cobden 
 Kenny v. Browne 
 Kensington at.s. Sandford 
 Kettle V. Wood — Addenda 
 Kilbey v. Weyberg 
 Kinaston ats. Frescobaldi 
 Kine v. Beaumont 
 Kingston, Duchess of, ats. Ilex 
 Kirby ats. Ellison 
 Kirby ats. Gwynn 
 Kirkham v. VVhaley . . 
 Knight, in re .. 
 Knight, in re, ex parte Hall 
 Knight V. Copping 
 Knight, in re v. Hall 
 Knight V. Lord Plymouth 
 Kruger v. Wilcox 
 
 Lacker v. Harcourt . . 
 Laidler v. Elliott 
 Laing v. Barclay 
 Laing v. Cundale 
 Lamb v. Williams 
 Lambert v. Buckmaster . 
 Lambert ats. Dent 
 Lane ats. Hazard 
 Lane v. Wheat 
 Langford v. Nott 
 Langley v. Furnival 
 Langley v. Stapleton 
 Langstaffe v. Taylor 
 Langslow v. Cox 
 Lann v. Church 
 Lashiey ats. Morland 
 Latuch V. Pasherante 
 Laughton ats. Ross 
 Lavendar ats. Spittle 
 L;cwley ats. Dawson 
 Lawrence, in re 
 Lawrence v. Harrison 
 Lawrence v. Martin 
 Lawrence ats. Treviban 
 Laws ats. Wilson 
 Lawson v. Dickinson 
 Lawson ats. Garner 
 Leach ats. Hurd 
 Leacroft, ex parte . . 
 Learmouth, e.r parte 
 Le Brere ats. Hargrave 
 Lee, ex parte 
 Lee V. Ayrton . . 
 Lee V. Jones 
 Lee V. Wilson 
 Leigh ats. Pie 
 Leighton ats. Jones 
 Leman ats. Oxenham 
 Leng ats. Crosby 
 Lethbridge ats. Luxmore- 
 
 rfa 171« 
 Lethwaite ats. Hovill 
 Lewes v. Morgan 
 
 
 da 
 
 Lewin ats. Beck 
 
 . 
 
 53 
 
 
 .. 1C4 
 
 Lewis, in re . • . « 
 
 
 112 
 
 
 78,114 
 
 Lewis ats. Busk .. ... 
 
 . 
 
 51 
 
 
 49 
 
 Lewis ats. Fields . . . . 
 
 . 
 
 124 
 
 
 94 
 
 Lewis V. W^ alter . . . . . 
 
 . 
 
 150 
 
 
 . , . 49 
 
 Leyburne ats. Gretton 
 
 . 
 
 68 
 
 
 81 
 
 Lightfoot ats. Uppendalc 
 
 . 
 
 27 
 
 
 50 
 
 Lister v. Priestly 
 
 . 
 
 150 
 
 
 .. 172* 
 
 Little ats. Powel 
 
 . 59, 
 
 164 
 
 
 31,105 
 
 Livctte ats. Du Barre 
 
 . 4( 
 
 , 50 
 
 . 
 
 28 
 
 Llewellyn ats. Williams 
 
 . 
 
 81 
 
 
 .. 131 
 
 Lloyd V. Maund 
 
 
 65 
 
 le 
 
 X .. 46 
 
 Lloyd V. Mead 
 
 . 
 
 68 
 
 
 63 
 
 Lloyd V. Wilian 
 
 
 33 
 
 
 102,157 
 
 Lloyd ats. Wiltshire 
 
 ,. 
 
 44 
 
 
 40 
 
 Lomas v. Mellor 
 
 
 145 
 
 
 97 
 
 London, Bishop of, ats. Barker 
 
 
 73 
 
 
 .. 103 
 
 London v. Hill 
 
 . 
 
 86 
 
 
 92 
 
 London, the Sheriffs of, ats. Rex, 
 
 in 
 
 
 ^ ^ 
 
 99 
 
 Plonier v. Houghton 
 
 
 164 
 
 
 91 
 
 Long's case 
 
 
 54 
 
 
 .. 147 
 
 Long ats. Amey 
 Longman v. Rogers 
 
 
 51 
 79 
 
 
 .. 156 
 
 Lorymer v Hollister 
 
 '.'31 
 
 105 
 
 
 91 
 
 Lovegrove v. Dymond 
 
 29 
 
 ,165 
 
 
 . .. 51 
 
 Loveridge v. Botham 
 
 .. 
 
 133 
 
 
 77 
 
 Lowe, in re . . 
 
 
 108 
 
 
 33 
 
 Lowten ats. Packhurst 
 
 
 46 
 
 
 138 
 
 Lucas ats. Bramwell 
 
 
 49 
 
 _, 
 
 .. 126 
 
 Luck ats. Adams 
 
 ,, 
 
 124 
 
 
 70 
 
 Luckett and Thompson, in re 
 
 
 25 
 
 , , 
 
 .. 152 
 
 Lunn V. Aiscough 
 
 
 42 
 
 
 63 
 
 Luxinore v. Lethbridge — et Addenda 
 
 
 
 ()6 
 
 171* 
 
 . . 64, 97 
 
 
 .. 164 
 
 Lyddall v. Weston . . 
 
 
 71 
 
 , , 
 
 70 
 
 Lyn ats. Jenkes 
 
 
 159 
 
 
 .. 107 
 
 
 
 
 
 . . 1 38 
 
 
 
 
 
 .. 145 
 
 M'Beath v. Cooke — Addenda 
 
 , , 
 
 170* 
 
 . , 
 
 .. 33 
 
 M'Carthy ats. Short 
 
 162 
 
 163 
 
 
 107,100,138 
 
 M'Combiev. Davies 
 
 .. 
 
 147 
 
 
 94 
 
 M'Dougall V. Claridge 
 
 .. 
 
 161 
 
 
 139 
 
 M'Pherson v. Rorison 
 
 
 164 
 
 
 . .. 97 
 
 Mackoul ats. Roberts . . 
 
 
 145 
 
 ^ J 
 
 34 
 
 M'Lachlan ats. Templcr 
 
 . , 
 
 184 
 
 
 38 
 
 Mackreth v. Symons 
 
 
 141 
 
 
 34 
 
 Madock ats. Aitcheson 
 
 
 91 
 
 
 27 
 
 Maddox ats. Staines 
 
 
 142 
 
 , 
 
 107, 141 
 
 Makilwaine ats. Margerem 
 
 
 165 
 
 
 97 
 
 Malkin, ex parte 
 
 
 112 
 
 
 .. 119 
 
 Malkin ats. Adams 
 
 .. 
 
 112 
 
 
 .. 168 
 
 Mann v. Fletcher 
 
 
 153 
 
 
 138 
 
 Mann v. Nottage . . 
 
 
 77 
 
 
 94 
 
 Margerem v. Makilwaine 
 
 
 165 
 
 
 141 
 
 Margerum v. Sandiford 
 
 
 61 
 
 
 168 
 
 Margison ats. Reid 
 
 
 162 
 
 
 130 
 
 Marr v. Smith 
 
 
 144 
 
 
 69, 132 
 
 Marr ats. Nuttall . . 
 
 . , 
 
 69 
 
 
 126 
 
 Marsh v. Carter 
 
 
 68 
 
 
 105 
 
 Marshall's case 
 
 ,, 
 
 107 
 
 . 
 
 120 
 
 Marshall v. Cliff 
 
 . . 
 
 52 
 
 
 93 
 
 Marshall ats. Parker 
 
 10: 
 
 t, 107 
 
 et Adden- 
 
 Martin v. Francis . . 
 
 
 144 
 
 
 .. 64,97 
 
 Martin ats. Lawrence . . 
 
 . . 
 
 38 
 
 
 141 
 
 Martin v. Winder 
 
 
 117 
 
 
 70 
 
 Mason ats. Brooks . . 
 
 
 119
 
 IN THE LAW OF ATTORNIES. 
 
 201 
 
 Mason v. Caswell 
 
 .. 
 
 77 
 
 Mason ats. Jenkins 
 
 ., 
 
 80 
 
 Mason ats. Robarts 
 
 
 39 
 
 Mason ats. Stokes .. 
 
 , ^ 
 
 160 
 
 Mason ats. Wright .. 
 
 
 100 
 
 Massey v. Davis . . . . 
 
 
 137 
 
 Matham ats. Smith . . 
 
 
 100 
 
 Mathews v. Royle . . 
 
 .26 
 
 101 
 
 Matson, ex parte .. 
 
 
 168 
 
 Maund ats. Lloyd 
 
 
 65 
 
 Maughen v. Graham 
 
 , , 
 
 73 
 
 Maxwell ats. Ford 
 
 
 116 
 
 May ats. Anderson . . 70, 
 
 131 
 
 132 
 
 Mayer, ex parte 
 
 
 170 
 
 Maynard's case . . 
 
 
 40 
 
 Maynard ats. Wright 
 
 .. 
 
 107 
 
 Majnie v. Hawkey 
 
 .. 
 
 109 
 
 Mayre ats. Hughes . . 103, 
 
 107 
 
 108 
 
 Mead ats. Lloyd 
 
 
 68 
 
 Mellish ats. Merryweather 
 
 138 
 
 165 
 
 Mercato ats. Elvis . . 
 
 . 
 
 105 
 
 Merle v. Moore — Addenda . . 
 
 
 170* 
 
 Merryweather v. Mellish 
 
 138 
 
 165 
 
 Meyer v. Sharpe 
 
 . 
 
 141 
 
 Meyer ats. Wright 
 
 
 107 
 
 Mellor ats. Lonias . . 
 
 
 145 
 
 Middleton v. Hill 
 
 ,, 
 
 145 
 
 Millburn v. Codd 
 
 
 123 
 
 Miller v. James — ct Addenda 174* 
 
 "96, 
 
 105 
 
 Miller v. Towers 
 
 68, 
 
 117 
 
 Mills v. Johnson 
 
 
 156 
 
 Mills ats. Symonds 
 
 
 145 
 
 Milner ats. White 
 
 
 73 
 
 Milward v. Temple 
 
 
 52 
 
 Minchin v. Cope 
 
 
 153 
 
 Mitchell V. Oldfield . . 137, 
 
 142 
 
 ,146 
 
 Modgiliani ats. Nunez . . 
 
 
 145 
 
 Moises V. Thornton 
 
 
 150 
 
 Monmouth, Sheriff of, ats. Pitcher 
 
 
 126 
 
 Montesquieu v. Sandys . . 
 
 
 81 
 
 Montriou v. Jefferies 
 
 
 134 
 
 Moody's case 
 
 
 170 
 
 Moody v. Spencer 
 
 
 175 
 
 Moore ats. Butler .. 
 
 
 46 
 
 Moore ats. Ginders 
 
 
 164 
 
 Moore ats. Merle — Addenda 
 
 
 170* 
 
 Moore ats. Prior . . . . 40, 78 
 
 114 
 
 Mordecai v. Solomon . . 
 
 
 32 
 
 Morgan v. Belts . . 
 
 
 161 
 
 Morgan ats. Lewes 
 
 
 70 
 
 Moring ats Hurd — Addenda 
 
 
 170* 
 
 Morland v. Lashley . . 
 
 
 145 
 
 Morse v. Cooke 
 
 
 57 
 
 Morsland v. Pasley 
 
 
 146 
 
 Moss ats. Barratt . . 
 
 
 118 
 
 Mould v. Roberts 
 
 
 105 
 
 Mowbray v. Fleming 
 
 
 68 
 
 Mounsey v. Watson 
 
 
 127 
 
 Moule, ea- parte 
 
 137 
 
 , 138 
 
 Mudie ats. Williams — Addenda 
 
 
 170* 
 
 Mullet ats. Robinson 
 
 
 85 
 
 Murray, in re 
 
 
 107 
 
 Murray ats. Richardson 
 
 
 78 
 
 Murrell ats. Watson . . 
 
 
 95 
 
 Mudie ats. Williams 
 
 *. . 48, 49 
 
 Myriel v. Hymondsold 
 
 
 95 
 
 Nabb V. Smith 123 
 
 Nangle ats. Floyd . . . . 101 
 
 Napier ats. Davidson — Addenda .. 174* 
 
 Neale, ex parte, t« re Norris .... 65 
 
 Neale, ex parte, in re Norton .. 70, 71 
 
 Needham ats. Wheetham . . . . 78 
 
 Nelson V. Garforth .. .. .. 174 
 
 'Heshitt, ex parte .. .. 137,139 
 
 Newman v. Payne . . . . 70 
 
 Newton, ex parte . . . . . . 1 38 
 
 Newton ats. Ellison 160 
 
 Newton v. Foot , . . . . . 59 
 
 Newton V. Rowland .. 38,161 
 
 Niblett ats. Cass .. .. .. 41 
 
 Nicholas ats. Webber .. .. 198 
 
 Nicholas, ex par^t' .. .. 166 
 
 Nicholls v. Clent 141 
 
 Nichols v. Earle . . . . 42, 53 
 
 Nicholson ats. Collins . . . . 65 
 
 Nicholson ats. Paget .. .. 174 
 
 Nixon V. Hewitt .. .. ,. 85 
 
 Noakes ats. Ryland 36 
 
 Noble ats. Schoole 145 
 
 Noel ats. Thompson .. .. 150 
 
 Norcliffe ats. Ode .. .... 160 
 
 Norris, in re, ex parte Neale ..' 65 
 
 Norton, in re, ex j)arte Neale . . . . 70, 71 
 
 Norwich, Mayor of, v. Berry . . 54 
 
 Nott ats. Langford . . .... 6.3 
 
 Nottage ats. Mann . . . . . . 77 
 
 Nottingham, in re Town Clerk of 31 
 
 Nabb v. Smith 123 
 
 Nunez v. Modgiliani .. .. 145 
 
 Nuttall V. Marr 69 
 
 Oades V. Woodward .. .. .. 31 
 
 Oakes ats. Daffy . . . . ... 38 
 
 O'Brien ats. Dwyer . . . . . . 101 
 
 Ode v. Norcliffe .. .. .. 160 
 
 O'Deav. O'Dea 138 
 
 Odell ats. Williams 67 
 
 Oddy ats. Hall 145 
 
 O'Hara v. Innes — Addenda 
 
 Oldfield ats. Mitchell , 
 O' Neale v. Price 
 Oneby's case 
 Ongley ats. Colling .. 
 Oppenheim v. Harrison 
 Orme ats. Harris 
 Ormerod v. Gate . . 
 Osbaldiston v. Cross 
 Oulds V. Sansom 
 Owston v. Bryan 
 Oxenham v. Esdaille 
 Oxenham v. Leman 
 
 137, 
 
 142, 146 
 
 29 
 
 49 
 
 141 
 
 26 
 
 131 
 
 144 
 
 71 
 
 27 
 
 143 
 
 139 
 
 120 
 
 Packhurst v. Lowten . . . . 46 
 
 Packhurst v. Shorter . . . . 42 
 
 Page, in re . . . . . . 97 
 
 Paget V. Nicholson .. .. 174 
 
 Paine V.Hall 81 
 
 Pakington ats Gale— //rWcnrf« .. 172* 
 
 Palmer, ex parte, in re, Frcuston . . 65 
 
 Palmer ats. Barber . . 42, 54 
 
 Palmer ats. Russel . . 88, 88 
 
 Parker's case .- .. 104
 
 202 
 
 TABLE OF THE CASES 
 
 137, 
 
 Parker ats. Board 
 Parker ats. Crosslcy 
 Parker v. llarcourt 
 Parker ats. Howse 
 Parker v. Marshall 
 Parker v. Vauphaii 
 Parkins v. Hawksliaw 
 Parry ats. Kawlings 
 Parson v. Gill 
 Parsons ats. Reuse 
 Partridge, in re 
 Partridge, ex parte 
 Partridge ats. Rex 
 Pashcrante ats. Latuch 
 Pasley ats. Morsland 
 Pasmore v. Bierun 
 Paterson v. Gandasequi 
 Payne ats. Newman 
 Payne ats. Winter 
 Peale ats. Dc Roufigny 
 Pearce v. Whale 
 Pearle ats. Jones 
 Pearman ats. Ireson 
 Pearson v. Fletcher 
 Pearson v. Henson 
 Pearson v. Sutton 
 Peck ats. Champneys 
 Pemberton, ei parte 
 Penson v. Johnson 
 Pepper ats. Rex 
 Perkins ats. Hayes . . 
 Perkins v. Taylor . . 
 Peterborough v. Williams 
 Petrie's case 
 Phelps, ex parte 
 Philips V. Smith .. 
 
 Philipson v. Chase 
 Phillipe V. Baker 
 Phfllips V. Dicas 
 Phillips V. Jansen 
 Phillips V. Phillips 
 Phillips V. Roach 
 Phillips ats. Snell 
 
 Pickering ats. Cuts 46, 49 
 
 Pickering v. Sedwick . . 77, 78 
 
 Pickford V. Gutch .. .. 150 
 
 Pickering ats. Shaw . . . . 70 
 
 Pilgrim, /n re .. .. .. 11 
 
 Pilling ats. Bates . . . . 92 
 
 Pincent ats. Bulcr 160 
 
 Pink ats. Stoneham . . . . 77 
 
 Pistor V. Dunbar . . . . . . 69 
 
 Pitcher V. the Sheriff of Monmouth 126 
 Pitt V. Donovan . . . . . . 94 
 
 Pitt V. Yalden 83, 88, 97 
 
 Plaint ats. Wood .. .. 164 
 
 Plaisted ats. Dickinson .. .. 153 
 
 Plant ats. Dixon .. .. .. 174 
 
 Platts, ei /)ar/e .. .. .. 167 
 
 Plenderleath v. Frazer . . . . 70 
 
 Plymouth, Lord, ats. Knight .. 91 
 
 Pomeroy V. Baddely — Addenda .. 170* 
 Pool ats. Weston .. .. 68,75 
 
 Pope V. Redfearne .. 126,156 
 
 Popham ats. Taylor .. 142, 145 
 
 Popkin ats. Aubrey .. .. 70, 71 
 
 44 
 
 70, 71 
 
 133 
 
 139 
 
 103, 107 
 
 44 
 
 50 
 
 54 
 
 29, 34 
 
 160 
 
 66 
 
 05 
 
 65 
 
 33 
 
 146 
 
 134 
 
 94 
 
 70 
 
 64 
 
 120 
 
 135, 150 
 
 147 
 
 90 
 
 51 
 
 42, 53 
 
 109 
 
 130 
 
 176 
 
 68 
 
 101 
 
 172 
 
 176 
 
 137 
 
 50 
 
 172 
 
 30 
 
 131 
 
 133 
 
 96 
 
 149 
 
 75 
 
 132 
 
 163 
 
 Popkin ats. Cower — el Addenda 171* 71 
 Potch V. Rivett . . . . . . 74 
 
 Potter's case 100 
 
 Powel V. Little .. .. 59, 164 
 
 Powell ats. Gordon .. .. 128 
 
 Powell ats. Toms 58 
 
 Powell ats. Waller .. .. 129 
 
 Power ats. Stevenson •• .. 104 
 
 Powill ats. Barnesly 139 
 
 Powle's case . . . . . . 39 
 
 Poynton ats. Commerell .. .. 138 
 
 Prankerd, ex ^ar/e 17 
 
 Pratt ats. Fawkes 101 
 
 Pratt V. Salt . . . . . . 39 
 
 Pratt ats. Short 97, 99 
 
 Preston v. Bindley . . . . • • 77 
 
 Price, ex parte . . . . . • 143 
 
 Price V. .. .. 100, 136 
 
 Price ats. Ashford 133 
 
 Price V. Bullcn . . . . . . 89 
 
 Price ats. Comerford .. .. 38, 154 
 
 Price ats. Jones •• 116,171,174 
 
 Price ats. O'Neale 29 
 
 Price ats. Rex 99 
 
 Prickett, e.r ]}arte .. . . 64, 67 
 
 Priddle's case 101 
 
 Priestly ats. Lister .. .. 150 
 
 Prior V. Hale 28 
 
 Prior V. Moore .. .. 40,78, 114 
 
 Prior ats. Turton 159 
 
 Pritchett ats. Webb .. .. 131 
 
 Protheroe V. Thomas .. 72, 117 
 
 Prouse's case 45 
 
 Purdon ats. Clutton .. .. 68,70 
 
 Purkiss ats. Harding .. .. 26 
 
 Pye V. Leigh 126 
 
 Pym ats. Sweet . . . . . . 147 
 
 Pyne V. Erie 144 
 
 Queensberry, Duke of, ats. Cullen.. 
 
 95 
 
 Rackett ats. Ware 
 Radcliffe v. Besby 
 Railton ats. Turner 
 Ramsbottom v. Harcourt 
 Ramsden v. Hilton 
 Randlr v. Fuller 
 Rastall ats. Wilson 
 Rawlings v. Parry . . 
 
 Rawlins ats. Buckler 
 Rayner ats. Allison 
 Read v. Cooper 
 Read v. Dupper 
 Read ats. Fells 
 Read v. Jones 
 Read ats. Williams 
 Reader v. Bloom . . 
 Redfearne ats. Pope 
 Redfearn v. Lowerby 
 Redit v. Broomhead 
 Redman's case 
 Reece v. Righy 
 Reed v. Brown 
 Reid ats. Margison 
 Reuse v. Parsons 
 
 124 
 
 42 
 
 50 
 
 39 
 
 73 
 
 145, 146 
 
 46, 49, 50 
 
 54 
 
 165 
 
 119, 135 
 
 80 
 
 143 
 
 141 
 
 54 
 
 80 
 
 26 
 
 126, 156 
 
 107 
 
 77, 78 
 
 53 
 
 8.3, 89 
 
 172 
 
 162 
 
 160
 
 IN THE LAW OF ATTORNIES. 
 
 203 
 
 Revettv. Harvey — Addenda .. 172* 
 
 Rex V. Bach (j4 
 
 V. Batch .. .. .. 75 
 
 V. Bellamy . . . . 1C2 
 
 V.Bennett 97 
 
 • V. Borron 55 
 
 V. Bowes, in Hawkins v. Magnall 77 
 
 v. Coleridge .. .. .. 55 
 
 v. Collingridge 64 
 
 v. Commins . . . . . . 56 
 
 v. Crossley 21, 150 
 
 V. Dixon . . . . . . 46 
 
 V. Doncaster, Mayor of . . 109 
 
 V. Duchess of Kingston . . 46 
 
 V. Fielding 101 
 
 V. Gardner . . . . . . 150 
 
 V.Greenwood 104 
 
 V.Hodgson .. .. .. 101 
 
 V. Ipswich, Gaoler of . . . . 80 
 
 V.Jackson .. .. .. 118 
 
 V.Jeffs .. .. ..163 
 
 V. London, the Sheriffs of, in Plo- 
 
 mer V. Houghton.. .. .. 164 
 
 V. Partridge 65 
 
 V. Pepper 101 
 
 V. Price 99 
 
 V. Smith 46 
 
 ■ V. Sparkes 46 
 
 V. Southerton .. .. 99,100 
 
 V. Staffordshire, Justices of . . 55 
 
 V. Surrey, Sheriff of .. .. 77 
 
 V. Tew 97, 101 
 
 V. Wallace . . . • . • 80 
 
 V. W^atkinson .. :. 49 
 
 V. Withers . . . . . . 46, 50 
 
 Reynolds V. Casw«ll .. .. 118 
 
 Reynolds ats. Watson . . . . 94 
 
 Rhodes, ei par^e .• •• •• 145 
 
 Rhodes V. Gibes .. •• •• 131 
 Rice ats. Abbott .. .. 128,139,143 
 
 Richards, ei parte - ■ • • 168 
 
 Richards v. Brown 30 
 
 Richards ats. Grell . . . . 27 
 
 Richardson ats. Cariss . . . . 95 
 
 Richardson V. Murray .. .. 78 
 
 Richie v. Gilbert . . . . . . 78 
 
 Richmond, ex parte . . • • 45 
 
 Richmond ats. Duncan .. .. 109 
 
 Ridge V. Hardcastle 39 
 
 Ridley v. Carr 40 
 
 Rigby V. Edwards . . . • • • 74 
 
 Righy ats. Reece 83 
 
 Rigley V. Dayking .. .• 122 
 
 Rigley V. Dayrell .. •• •• 130 
 
 Rivett ats. Potch 74 
 
 Roach ats. Buckle . . • . 35 
 
 Roach ats. Phillips 132 
 
 Robarts v. Mason 39 
 
 Roberts v. Mackoul 1 45 
 
 Roberts ats. Mould 105 
 
 Roberts ats. Shindler .. .. 106 
 
 Roberts ats. Tench 60 
 
 Robinson v. Bray . . • • • • 44 
 
 Robinson v. Elsam 136 
 
 Robinson v. Mullett 85 
 
 Robinson atB. Unwyn .. .. 53, 54 
 
 Robinson v. Ward . . . . 90 
 
 Robson v. Kemp . . . . . . 49 
 
 Robson V. Eaton 36, 59 
 
 Roe V. Doe 101 
 
 Roe ats. Doe dcm. Thwaites . . . . 98 
 
 Roe ats. Hill .. .. ..164 
 
 Roe ats. Yeardly .. .. 126, 156 
 
 Roger ats. Mathews 101 
 
 Rogers ats. Longman . . . . 79 
 
 Rogers ats. Rolfe 102 
 
 Rohnson v. Bray . . . . ■ . 44 
 
 Rolf V. Dart .. ..162 
 
 Rolfe V. Rogers .. .. •• 102 
 
 Rook ats. Wigg .. .. .. 105 
 
 Rorison ats M'Pherson •. .. 164 
 
 Rose ats. Drew .. .. 38, 123 
 
 Ross ats. Cakish . . . . . . 77 
 
 Ross V. Laugh ton .. 107,109,138 
 
 Roubell ats. Thompson . . . . 77 
 
 Jio\i\e, e.r parte .. .. .. 13 
 
 Routh V. Widdell .. .. 160 
 
 Rowe ats. Ambrose .. 122, 127 
 
 Rowe V. Wood .. ... .. 118 
 
 Rowland ats. Newton .. 38, 160 
 
 Rowth V. Stowell • 91 
 
 Royal Exchange Assurance Com- 
 pany ats. White .. .. 143, 176 
 Royle ats. Matthews . . 26, 101 
 
 Rudd V. Berkenhead .. ..^128 
 
 Ruggles ats. Fenton . . 77, 78 
 
 Rughy ats. Adams — Addenda .. 170* 
 
 Rush ats. Thompson . . . . 54 
 
 Rushbury ats. Walker ... . . 42 
 
 Russel's case .. .. .. 107 
 
 Russel ats. Bellew 81 
 
 Russel V. Black 97 
 
 Russel V. Palmer 83, 88 
 
 Russel ats. Sibbet 35 
 
 Ryland v. Noakes 36 
 
 Salt ats. Pratt . . . . . . 39 
 
 Sambridge. ex parte .. • • 170 
 
 Sand v. Heyshm 40 
 
 Sanders ats. Studdy . . . . 49 
 
 Sandford v. Kensington . . . . 50 
 
 Sandiford ats. Margerum . . . • 67 
 
 Sandom v. Bourn . . . . . • GQ 
 
 Sandys ats. Montesquieu .. •• 81 
 
 Sansom ats. Oulds . . . . . • 27 
 
 Saunder v. Cockayne 42 
 
 Saunders, ex ;jar/e .. •• 170 
 
 Saunders ats. Holderstaffe .. .. 100 
 
 Saunderson v. Glass . . . . • • 70 
 Say, Lord, and Sele's case .. ..46, 100 
 
 Sayer ats. Cooper .. .. .• 97 
 
 Sayers v. Walond . . . • • • 63 
 
 Scawen v. Garrett . . • • 5+ 
 
 Schoolev. Noble 145 
 
 Scott ats. Champernoun — Addenda 175* 
 
 Scrace V. Whittington .. .. 173 
 
 Scrope, ei parte .. . . • • 169 
 
 Seanh, ex parte .. .. •• 138 
 
 Sedgwiek ats. Pickering . . . . 77, 78 
 
 Scdgworth V. Spicer .. .- 101 
 
 Senate ats. Swain . . • . • . 58 
 
 Senior V. Butt 106
 
 tlO-i 
 
 TABLE OF THE CASES 
 
 Settrcc ats. Cooke .. .. .. 71 
 
 Shackleton ats. Hindlc . . 
 
 Sliank, c.r parte 
 
 Sharpe ats. Meyer . . 
 
 Sluiw, ei parte . . 
 
 Shaw ats. Crossley .. 
 
 Shaw V. Pickering 
 
 Shee ats. Crowder 
 
 Shiiuller v. Roberts 
 
 Sliort V. I'^dwards . . 
 
 Short V. M'Carthy 
 
 Sliortcr V. Packhurst . . 
 
 Short V. Pratt .. 
 
 Shuttleworth ats. Goldie 
 
 Sibbet V. Russel . . 
 
 Silk V. Bennett 
 
 Sills ats. Boardman 
 
 Simpson, ex parte 
 
 Simpson ats. Beevor — Addenda 
 
 Simpson ats. Cowell 
 
 Skinner v. Sweet . . 
 
 Skirrow v. Tagg 
 
 Slater ats Trim .. 
 
 Slaymaker ats. Vincent 
 
 Slowman v. Heme 
 
 Smith, ei parte .. 
 
 Smith, in re , . . . 
 
 Smith V. Bowes 
 
 Smith ats. Duffin 
 
 Smith ats. Hopkins 
 
 Smith V. Matham 
 
 Smith ats. Marr 
 
 Smith ats. Nabb 
 
 Smith ats. Philips 
 
 Smith ats. Rex 
 
 Smith V. Spooner 
 
 Smith V. Starkie 
 
 Smith ats. Steer 
 
 Smith V. Taylor 
 
 Smith ats. Wainewright 
 
 Smith V. Wattleworth 
 
 Smith V. Woodroffe .. 
 
 Smith ats. Worton 
 
 Snee v. Humphreys 
 
 Snell V. Phillips 
 
 Solomon ats. Mordecai 
 
 Sowerby ats. Redfearn 
 
 Southerton ats. Pi.ex 
 
 Southwood ats. Wright — et Addenda 172* 75 
 
 Sparkes ats. Rex . . . . . . 46 
 
 Spelman v. Woodbine . . . . 67 
 
 Spencer ats. Moody .. .. 175 
 
 Spiccr ats. Sedgworth .. .. 101 
 
 Spittle V. Lavender .. .. 94 
 
 Spooner ats. Smith . . . . . . 94 
 
 Springate v. Springate . . . . 61 
 
 Squire ats. Griffith .. ..68,118 
 
 Staffordshire, Justices of, ats. Rex . . 55 
 
 Staines V. Maddox .. .. 142 
 
 Stapleton ats. Langley .. .. 164 
 
 Starkie ats. Smith . . . . . . 85 
 
 Steed ats. Conningsby, Lord . . . . 54 
 
 Steele's case . . . . . . 175 
 
 Steer v. Smith .. .... 101 
 
 Stein ats. Copland ... .. 1.31 
 
 Stephens V. Davis — Addenda .. 171* 
 
 73, 74 
 
 147 
 
 141 
 
 138 
 
 54 
 
 70 
 
 68, 119,120 
 
 106 
 
 33 
 
 162, 163 
 
 42 
 
 .. 97,99 
 
 52 
 
 35 
 
 44 
 
 147 
 
 101 
 
 174* 
 
 140 
 
 . .. 142 
 
 40 
 
 68 
 
 120 
 
 46 
 
 108, 168,170 
 
 12, 65, 104 
 
 41 
 
 . . 49, 50 
 
 134 
 
 100 
 
 144 
 
 123 
 
 . .. 30 
 
 46 
 
 94 
 
 85 
 
 101 
 
 150 
 
 43 
 
 65 
 
 . .. 80 
 
 107 
 
 53 
 
 163 
 
 32 
 
 107 
 
 ..99, 100 
 
 Stephens v. Weston . . . . 145, 146 
 
 Sterling, rj 7}rt»7c .. .• 137 
 
 Stevens ats. Jones .. .. .. 150 
 
 Stevenson v. Blakelock . . • • 140 
 
 Stevenson V. Power .. .. 104 
 
 Stewart V. Allison 65 
 
 Stewart ats. Bowles .. 49,101 
 
 Stokes, ex parte .. .. .. 19 
 
 Stokes V. Mason .. .. .. 160 
 
 Stone's case . . . . .... 45 
 
 Stone V. Stone .. .. .. 102 
 
 Stoneham v. Pink . . . . 77 
 
 Stowell ats. Rowth 91 
 
 Stratton v. Burgis .. .. .. 105 
 
 Strong v. Howe .. .. .- 107 
 
 Studdy v. Sanders .. .. .. 49 
 
 Surrey, Sheriff of, ats. Rex .. .. 77 
 
 Sutton ats. Pearson .. .. .. 109 
 
 Swaile ats. Clarke .. .. .. 81 
 
 Swain v. Senate .. .. 58 
 
 Sweet v. Pym .. .. .. 147 
 
 Sweet ats. Skinner . . . . . . 142 
 
 Symes ats. Balch . . . . . . 140 
 
 Symonds v. Mills . . . . 145 
 
 Symonds ats. Groome .. .. .. 174 
 
 Symons ats. Mackreth .. .. 141 
 
 Synge ats. Adamthwaite . . . . 162 
 
 Tabram v. Home .. .. 118, 133 
 
 Tagg ats. Skirrow .. .. 40 
 
 Tahourdin ats. Harper . . . . 77 
 
 Tapscott ats. Frogatt 125 
 
 Tashburn V. Havelock .. .. 172 
 
 Tattersall ats. Griffith .. .. 129 
 
 Taunton V. Goforth .. .. .. 175 
 
 Taylor, in re • . . • . . 14 
 
 Taylor, z« re — Addenda .. .. 169* 
 
 Taylor V. Cawson .. .. 172 
 
 Taylor ats. Clarke 69 
 
 Taylor ■^. Forster . . 50 
 
 Taylor v. Fuller . . . . . . 38 
 
 Taylor v. Glassbrook . . , . 1 34 
 
 Taylor v. Harris . . . . . . 106 
 
 Taylor V. Higgins .. .. .» 89 
 
 Taylor ats. Langstaffe . . . . . . 70 
 
 Taylor ats. Perkins .. .. 176 
 
 Taylor v. Popham . . . . 142, 145 
 
 Taylor ats. Smith . . . . . . 150 
 
 Tench v. Roberts . . .... 60 
 
 Teasedaile ats. Britten . . . . 40 
 
 Terrell ats. Clarke 107 
 
 Terrel v. Terrel . . . . . . 30 
 
 Tew ats. Rex . . . . . . 97, 101 
 
 Templar ats. Cohen . . . . 51 
 
 Templer v. M'Lachlan .. .. 134 
 
 Temple, in re, ex parte Hodgson . . 51 
 
 Temple ats. Mil ward . . . . . . 62 
 
 Therrsby Warren .. .. .. 122 
 
 Thomas ats. Protheroe .. .. 72, 117 
 
 Thompson, ex parte . . . . 79 
 
 Thompson V. Noel .. .. .. 150 
 
 Thompson v. Roubell . . . . . . 77 
 
 Thompson v. Rush . . . . 54 
 
 Thomson V. Burton . . .. •• 101 
 
 Thorncy, ex parte .. .. .. 16 
 
 Thornley ats. Chatland .. .. 159
 
 IN THE LAW OF ATTORNIES. 
 
 205 
 
 Thornton ats. Moises . . . . 105 
 
 Thorp ats. Brichens . • . . 50 
 
 Thorpe, ex parte .. .. 101, 102 
 
 Thorp's Bail . . . . 77 
 
 Thwaites, Doe dem., v. Roe . . 98 
 
 Till ats. Hooper . . . . 69 
 
 Timings v. Blatherwicke . . 99 
 
 Tipping V. Johnson .. .. 34 
 
 Toldvery ats. Gwynne . . . . 5S 
 
 Tomlinson v. Harrison . . 127 
 
 Toms V. Powell . . . . 58 
 
 Towers ats. Miller .. 68,117 
 Townsend v. Carpenter — Addenda 173* 
 
 Townsend v. Duppa . . . . 39 
 
 Trecothick ats. Coles .. .. 81 
 
 Tremaine ats. Foxwist . . 28 
 
 Tremenheere ats. Harris .. 81 
 
 Treviban v. Lawrence . . . . 34 
 
 Trewerk ats. Colling .. ..131 
 
 Trim v. Slater . . . . 68 
 
 Troy, ex parte .. . . 99 
 
 Turner, in re, ex parte Gorr . . 65 
 
 Tucker ats. Wilson . . . . 89 
 
 Turner v. Railton . . . . 50 
 
 Turton v. Prior . . .... 159 
 
 Turwin v. Gibson . . 139, 142 
 
 Twort V. Dayrell .. .. 138, 165 
 
 Tyack's case . . . . . . 107 
 
 Unwyn v. Robinson . . 53, 54 
 
 Uppendale v. Lightfoot . . . . 27 
 
 Uxbridge, Earl of, ear parte . . 108 
 
 Uxbridge, Earl of, in re . . . . 66 
 
 Vaillant v. Dodermead . . 46, 49, 51 
 
 Vaisey ats. Batt . . . . . . 80 
 
 Van Sandau v. Burt .. ..138, 147 
 
 Vaaghan, ex parte .. .. .. 167 
 
 Vaguhan ats. Calliaud .. .. 51 
 
 Vaughan v. Davis . . . . . . 145 
 
 Vaughan ats. Parker . . . . 44 
 
 Vaughan ats. Whitehead .. 142,198 
 
 Vautrin ats. Bologne . . . . 77 
 
 Vernon v. Hankey . . . . 148 
 
 Viana ats. Irving .. .. 137 
 
 Vincent v. Borduro . . . . . . 28 
 
 Vincent v. Groome . . . . 101 
 
 Vincent v. Holt 21 
 
 Vincent v. Slaymaker . . . . 120 
 
 Wadworth v. Allen . . . . 99, 102 
 
 Wadsworth v. Hamshaw . . . . 48 
 
 Waghorne V. Fields .. .. 152 
 
 Wainewright v. Smith . . . . 43 
 
 Wainman ats. Gray — Addenda .. 175* 
 
 Waldron's case .. .. .. 176 
 
 Walker ats. Hodgson . . . . 80 
 
 Walker V. Wildman — Addenda .. 170* 
 
 Walker v. Rushbury . . . . . . 42 
 
 Wallace v. Arrowsmith . . . . 78 
 
 Wallace ats. Rex . . • . 80 
 Wallace V. WiUingham .. 113,172 
 
 Waller ats. Hickman . . . . • . 105 
 
 Waller V. Powell .. •• 129 
 
 Walmesley v. Booth . . . • 70 
 
 Walond ats. Sayers . . . . . . 63 
 
 Walter ats. Lewis 
 
 , , 
 
 150 
 
 Ward ats. Beer 
 
 , , 
 
 50 
 
 Ward ats. Dax 
 
 . * • 
 
 1.-54 
 
 Ward V. Hippie 
 
 , , 
 
 175 
 
 Ward ats. Robinson 
 
 , , 
 
 90 
 
 Ware v. Rackett 
 
 
 124 
 
 Warrand ats.Hodding . . 
 
 .. 
 
 44 
 
 Warren, ex parte 
 
 .. 65, 
 
 112 
 
 Warren ats. Causfield 
 
 , , 
 
 159 
 
 Warren v. Cunningham 
 
 
 120 
 
 Warren ats. Hinton 
 
 
 136 
 
 Warren ats. Therrsby 
 
 
 122 
 
 Watkinson ats. Rex 
 
 
 49 
 
 Watson, ex parte . . 
 
 
 167 
 
 Watson ats. Anderson 
 
 . . 93, 
 
 162 
 
 Watson ats. Mounsey 
 
 ., 
 
 127 
 
 Watson T. Murrell 
 
 
 95 
 
 Watson V. Reynolds . . 
 
 • • 
 
 94 
 
 Watts ats. Copeland . . 
 
 
 51 
 
 Webb V. Pritchett 
 
 
 131 
 
 Webber v. Nicholas 
 
 ., 
 
 145 
 
 Webster v. Holme 
 
 
 125 
 
 Weld V. Crawford . . 
 
 
 65 
 
 Welland v. Frument . . 
 
 
 127 
 
 Welsh V. Hole .. 
 
 .. 142 
 
 143 
 
 Westall, ex parte .. 
 
 .. 73,54 
 
 Westall, in re 
 
 
 65 
 
 Westmore ats. Chace 
 
 ,, 
 
 140 
 
 Weston ats. Lyddall 
 
 
 71 
 
 Weston V. Pool 
 
 68, 75 
 
 Weston ats. Stephens 
 
 
 146 
 
 Weyberg ats. Kilby . . 
 
 ..31 
 
 105 
 
 Weymouth v. Bowyer 
 
 .. 
 
 141 
 
 Whale ats. Pearce 
 
 .. 135, 
 
 150 
 
 Whaley ats. Kirkham 
 
 
 40 
 
 Whatton, in re 
 
 
 25 
 
 Wheat ats. Lane 
 
 
 152 
 
 Wheeler's case . . 
 
 
 53 
 
 Wheeler, in re 
 
 
 67 
 
 Whetham v. Needham . . 
 
 
 114 
 
 White ats. Gruggen . . 
 
 
 102 
 
 White ats. Hart 
 
 
 95 
 
 White V. Milner . . 
 
 .. 
 
 73 
 
 White V. the Royal Exchange 
 
 As- 
 
 
 surance Company . . 
 
 143, 
 
 176 
 
 Whitehead v. Vaughan 
 
 .. 142 
 
 148 
 
 Whitfield v. James 
 
 .. 
 
 75 
 
 Widdell ats. Routh 
 
 
 160 
 
 Wigg V. Rook 
 
 
 105 
 
 Wilcox ats. Kruger 
 
 
 147 
 
 Wildbore v. Bryan 
 
 
 174 
 
 Wilkes ats. Gray 
 
 
 156 
 
 Wilkins v. Carmichael 137, 
 
 143," 147 
 
 176 
 
 Wilkinson v. Diggell 
 
 123, 
 
 131 
 
 Wilkinson demandant ; Foster 
 
 vouchee 
 
 
 — Addenda 
 
 
 171* 
 
 Willan ats. Lloyd . . 
 
 
 33 
 
 Willett V. Chambers 
 
 
 112 
 
 Williams, ex parte 
 
 
 64 
 
 Williams, in re 
 
 
 67 
 
 Williams v. Barber 
 
 .. 
 
 119 
 
 Williams v. Frith 
 
 
 132 
 
 Williams v. Goodwin 
 
 114 
 
 135 
 
 Williams ats. Griffith 
 
 .. 
 
 173 
 
 Williams v. Jones — Addenda 
 
 
 171* 
 
 Williams ats. Lamb 
 
 • • 
 
 .33
 
 206 
 
 TABLE OF THE CASES. 
 
 Williams v. Llewellyn . . . • 81 
 
 ■Williams V. Mudie .. . . 48, 49 
 
 Williams V. Odell .. •• 67 
 Williams ats. Peterborough . . • • 187 
 
 Williams v. Read . . • • 80 
 
 Williamson V. Beaumont .. •• 102 
 
 Willingham ats. Wallace .. 131,172 
 
 Wilson, ex parte .. .. •• 112 
 
 Wilson ats. Cook . . • • 80 
 
 Wilson ats. Fearne . . . . • • 64 
 
 Wilson ats. Finch .. .. .. 128 
 
 Wilson V. Laws . . . . . . 27 
 
 Wilson ats. Lee .. .. 69, 132 
 
 Wilson V. Rastall . . 46, 49, 50 
 
 Wilson V. Tucker . . .... 89 
 
 Wilton ats. Byles . . . . . . 41 
 
 Wiltshire v. Lloyd . . . . 44 
 
 Windale V. Blackburn .. .. 133 
 
 Winder ats. Martin .• .. 117 
 Windmill v. Cutting . . . . 41 
 
 Winnington ats. Bernard .. 43,53 
 Winter, /« re .. .. .. 1G7, 169 
 
 Winter V. Payne .. .. .. 64 
 
 W'ise ats. Berryman.. .. .. 150 
 
 Withers ats. Rex . . . . 46, 50 
 
 Wood, ex parte . . . . . . 74 
 
 Wood V. Downes . . . . 70, 81 
 
 Wood ats. Kettle— /frfrfe«d« .. 172* 
 
 Wood ats. Rowe .. .. 118 
 
 Wood V. Plaint 164 
 
 Woodbine ats. Spelman . . 67 
 
 Woodroffe ats. Smith . . . . 80 
 
 Woodvvard ats. Oades .. .. 31 
 
 Woolcot ats. Dickens . . . . . . 73 
 
 Woolcott ats. Higgins .. .. 73 
 
 Worral V. Johnson .. .. 138, 143 
 
 Worton V. Smith 107 
 
 Wright V. Castle . . .. .. 102 
 
 Wright ats. Crook 129 
 
 Wright V. Mason .. .. 100 
 
 Wright V. Maynard .. .. 107 
 
 Weight V. Meyer 107 
 
 Wright V. Southwood — et Addenda 172* 75 
 
 Wright ats. Young • . . . 52 
 
 Wyllie V. Jones . • . . 77 
 
 Yalden ats. Pitt . . 
 
 Yates ats. 
 
 Yates V. Freckleton 
 Yea V. Frere 
 Yeardley v. Roe . . 
 Young ats. Fountain 
 Young ats. Howell 
 Young V. Wright 
 
 83, 88, 97 
 
 78 
 
 59 
 
 74, 75 
 
 126, 156 
 
 50 
 
 162 
 
 52
 
 INDEX. 
 
 Actions by Attornies. 
 
 For the recovery of costs. 
 In what court to sue, 122. 
 Prehminary steps. See tit. "Bill of Costs." 
 Parties to action, 122, 3. 
 
 Process. See tits. " Attachment of Privilege," and "Venire Facias," 
 Arresting defendant, 125. 
 Pleadings. See tit. "Pleadings." 
 Evidence. 
 
 On plaintiff's part. 
 
 Of retainer, 128, 129, 129, n. 
 Of delivery of bill. 
 
 Fact of such delivery, 130. 
 To whom, or where delivered, 130. 
 Period of delivery, 131. 
 Of the bill and business, 131, 2. 
 Of reasonableness of charges, 132- 
 On defendant's part, 133, 4, 5. 
 Costs, 135, 6. 
 To recover compensation for the commission of torts, 149, 150, I. 
 Actions against Attornies. 
 When to be brought, 151. 
 Parties to, 151. 
 Process. See tit. " Bill." 
 Form of action, 155, 6, 
 Venue, 156. 
 Commencement, 156. 
 Statement of retainer, 156, 7. 
 
 Statement of subject-matter of action, 157, 158, 9. 
 Subsequent pleadings, 159, 160. 
 Admission. 
 
 Notice to apply for. 
 How given, 18. 
 Contents of it. 
 In general, 18. 
 
 When' an assignment of articles has taken place, 19. 
 When part of the time has been served with a barrister, &c. 19. 
 When to be given, 19. 
 Affidavit of execution of articles must be produced, 20. 
 Affidavit of service should be made, 20. 
 Previous examination, 20. 
 Oaths to be taken. 
 In general, 20. 
 
 In the case of a Roman Catholic, 21. 
 Enrolment of. 
 
 Where enrolled, 21. 
 Stamp on, 21, n. 
 
 VOL. ir. 2 E
 
 INDEX. 
 
 yfdwission continued. 
 
 Practical instructions as to, 20, n. 
 
 Into diflercnt courts, 21, 22. 
 
 Penalties for practising without, 85, 85, n., 86, n. 
 
 When parties may practise without admission into particular courts, 
 
 22, n.,24-. 
 Attorney improperly admitted liable to be struck off the roll, 99. 
 
 Admissions. 
 
 Made by attorney on record with a view to trial of action — admissible 
 
 against client, 51. 
 In conversation — not so, 51. 
 Affidavit. See tits. " Admission," " Articles of Clerkship," " Attornies" — 
 
 Subdiv. " Disabilities of." 
 Affidavit of Debt. 
 
 Drawing such, is a taxable item, 64. 
 Affirmation. 
 
 By Quaker — suffices in order to call on attorney to answer matters of an 
 affidavit, 99. 
 Agents. 
 
 Origin and general nature of agency, 171. 
 
 Whether notices, &c. should be served on agent or principal, 171, 2. 
 
 Duties and liabilities of, 172, 3. 
 
 Bill of. 
 
 W^ho liable for, 173. 
 Taxation of, 174. 
 Lien for, 175, 6. 
 
 Need not be delivered before action, 117. 
 Agreement to dispense with taxation, Addenda top. 171. 
 
 Answers. 
 
 Putting in separate, for two defendants, subjects solicitor to costs, Ad- 
 denda to p. 102. 
 Appearance. 
 
 In person, 6. 
 
 By attorney, 6. 
 
 Attorney undertaking to appear cannot retract, 31. 
 
 Appointment of Attornies. 
 When it can be made. 
 
 By corporations aggregate, 27. 
 femes covert, 27, 8. 
 idiots, 27, 28, n. 
 infants, 27, 28, n. 
 In cases of appeals of murder, 27. 
 mayhem, 27. 
 Mode of appointment. 
 Ancient mode, 28. 
 
 ]Modcrn method, 28; and see tit. "Warrant of Attorney." 
 When the Court will appoint, 31, n. 
 Effect of appointment. 
 
 On the attorney himself, 32. 
 On the client. 
 
 Renders him bound by act of attorney. 
 In case of compromises, $S.
 
 INDEX. 
 
 Appointment of Attornies continued. 
 In case of references, 33. 
 
 remitting damages, SS. 
 Apprenticeship. See *' Articles of Clerkship." 
 Arbitration. See "Reference." 
 Arrest. See "Actions against Attornies." 
 
 In general, p. 40, 41, &c. et vide Addenda to p. 43. 
 Attorney may be detained on mesne process, 41. 
 And may be arrested by sworn clerk in Petty Bag Office, 43. 
 Attorney, when arrested, should move to be discharged on filing common 
 bail, or entering a common appearance, 53. 
 
 Articled Clerks. 
 
 As to their being bail, 77, n. 
 Affidavits of client may be sworn before, qu. 80. 
 Attorney can only take two, 81. 
 Articles of Clerkship. See " Admission." 
 Contents of, 9. 
 By whom subscribed, 9. 
 Stamps on. 
 
 With a view to practise at Westminster, &c. 9. 
 in Wales, &c. 10. 
 Affidavit of execution of. 
 When made, 10. 
 Its contents, 10. 
 Filing it. 
 
 When filed, 10. 
 
 Where, and with whom filed, 10. 
 Omission to file — indemnity acts, 10, n. 
 Enrolment of. 
 When made, 11. 
 Consequences of omission, 11. 
 Indemnity acts, 11, n. 
 Assignment of See Addenda to p. 12. 
 Incase of attorney's death, 12. 
 
 ceasing to practise, 12. 
 In case of a cancellation of contract, 12. 
 Within what time allowed, 12. 
 Stamp on, 12, 13. 
 Affidavit of execution 13. 
 In case of death of six-clerk, 11, n. 
 Counterpart of, 10. 
 Attachments — against Attornies. 
 Nature of, 97, n. 
 Proceedings under, 98, n. 
 Attachment of Privilege. 
 Nature of, 123, 124. 
 Practice as to suing it out, 124, 125. 
 Attornies. See tit. "Appearance." 
 Definition of term, 5, 6, n. 
 Increase of numbers, 5, n. 
 Qualifications of. 
 
 At an early period, 4 — 7.
 
 INDEX. 
 
 Attornics continued. 
 
 Clerkship. See " Articles of Clerkship." 
 Admission. See " Admission." 
 
 Cortilicatc. See " Certificate." ^^ 
 
 Appointment of. See tits. " Appointment of Attorney," «' Retainer, 
 
 "Warrant of Attorney." 
 Authority of. See tit. " Authority." 
 Privileges of. 
 
 As to suing and being sued. See tits. " Attachment of Privilege," 
 "Venire Facias," and "Bill." 
 Foundation of such immunity, 37. 
 Allowed for benefit of client, 37. 
 Confined to attornies acting as sxicli, 38 — 40. 
 Does not therefore extend to cases of executorship, 38. 
 Confined to executors when sued alone. 
 In general, 38. , 
 
 Whether action be necessarily joint or not, 39. 
 Attorney, when sued with a member of parliament, is however 
 privileged, 39. 
 Subservient to interests of community, 39, 39, n. 
 As in real actions, 39. 
 
 the case of foreign attachments, 39. 
 Subservient to higher privileges. 
 As that of the king, 40. 
 But it must not be a y?/i tarn, 40. 
 Confined to practising attornies, 40, 41, 41, n. 
 Rule where interests of attornies clash. 
 In general, 42. 
 
 Exception to this rule, 42, 43. 
 Waiver of. 
 
 By suing as a common person, 43. 
 By not asserting the privilege in due time, 43, 44. 
 By entering into a bail-bond, 43, 44. 
 As to exemption from jurisdiction of inferior courts^ 
 When plaintiff, 44. 
 When defendant, 44. 
 As to exemption from serving offices. 
 In general, 44. 
 When elected constables, 45. 
 tithing men, 45. 
 
 officers under commissioners of sewers, 45. 
 When elected to do watch and ward, 45, 
 
 When elected to serve in the trained bands of the City of London, 45. 
 When elected overseers, 45. 
 
 churchwardens, 45. 
 to a corporate office, 45, 45, n. 
 sheriff, under-sheriff, commissioner, &c. 45, n. 
 The office, however, must require personal discharge of duty, 45, 6. 
 As a witness. See tit. " Admissions." 
 Reason of the exemption, 46. 
 Allowed for benefit of client, 46. 
 
 Courts will not, therefore, permit attorney to betray his trust, 50, 51. 
 Unless client consent, 51. 
 Or first examine him in chief, 51.
 
 INDEX. 
 
 Attornies continued. 
 
 Exists, although relation of attorney and client has ceased, 46. 
 Extent of the rule exemplified by the case of Rex v. Smith, 'l-fi*, 7 g. 
 Question, as to whether exemption extends to all professional' com- 
 munications, or only to such as relate to bringing or defendin<r an 
 action, 48, 49, and Addenda to p. 48 & 49. ° 
 
 Observations must not, however, be casual. 
 
 They must be made to the attorney as such, 49. 
 And not as a mere agent, 49, 
 Nor when he is a party, 49. 
 Nor when made after termination of suit, 49. 
 Nor where dehors his professional duty, 49, 49, n. 
 Thus, he must identify his client, 49. 
 
 Or prove he signed a paper, for forging which he is indicted, 50, 
 Or prove he executed a deed, 50. 
 Or prove that consideration of bond is usurious, 50. 
 Or prove an erasure, 50. 
 Or prove contents of written notice, 50. 
 A person acting as interpreter or agent between attorney and client 
 
 cannot be called, 50. 
 Still less can an attorney's clerk, 50. 
 But a person, not an attorney, consulted under idea he was, may be 
 
 examined, 50. 
 So may a person overhearing communications, 50. 
 When served with a subpoena duces tecum he should however attend 51 . 
 And see tits. " Commission of Bankrupts," " Composition Deed.'^ 
 As to serving on juries. 
 
 Must be in actual practice, 5£. 
 Must have taken out certificate, 52. 
 How enforced. 
 
 When improperly sued, 52. 
 When arrested. 
 
 Generally discharged on motion, 53, 
 
 Affidavit must be produced, that defendant is attorney of the 
 
 Court, &c. 53. 
 Costs not allowed, 54. 
 SheriflPnot bound to notice writ of privilege, 54. 
 
 Unless process from inferior jurisdiction, 54. 
 Mode of obtaining writ of privilege, 54, n. 
 When elected to offices, 54. 
 When served with a subpoena, 51, 55. 
 When elected as jurymen, 55. 
 Rights of. 
 
 To conduct proceedings before magistrates, 55, (5, 7. 
 To continue original action after collusive payment of debt, 57, 8, 9. 
 To appoint his clerk a commissioner to examine witnesses abroad, 59. 
 To receive payments and give discharges, 59. 
 
 To enter into contracts for the sale or disposal of his professional 
 emoluments. 
 How far countenanced, 60. 
 Reason of its limitation, 60. 
 Disabilities of. 
 
 Cannot be bail in civil ca«es, 77 ; and see tit. "Bail." 
 Cannot be lessees in ejectment, 78,
 
 INDEX. 
 
 Attorn'ics continucil. 
 
 To conduct proceedings whilst in prison. 
 Ju general, 78, 9. 
 In the county court, 79. 
 May, however, defend a suit, 79. 
 Or attest a petition in bankruptcy, 79. 
 To take affidavits. 
 
 General rules, 80, et vide Addenda to p. 80. 
 Punishment for so doing, 80, n. 
 To make purchases from client. 
 General rules, 81. 
 
 Cannot buy such property even as agent, 81. 
 Reason of the rule, 81. 
 To take more than two clerks, 81. 
 Duties of. 
 
 To the Court, 82. 
 To the client. 
 
 Degree of knowledge absolutely requisite, 83. 
 
 How far want of, is palliated by the sanction of a counsel's 
 opinion, 83. 
 Secrecy essential, 84. 
 Liabilities of. 
 Direct liabilities. 
 To penalties. 
 
 For practising without admission, 85. 
 certificate, 85. 
 For giving false address when taking out certificate, 86, n. 
 For champerty or maintenance, 86, 7. 
 To clients. 
 
 In general, 88, 89, 90, 91. 
 For not securing cash belonging to, 90, 90, n. 
 To third parties. 
 
 For malpractice, 92, 3. 
 On express or implied contracts, 94, 95. 
 To the messenger under a commission of bankruptcy. 
 In general, 95. 
 
 Under a special contract, 96, 96, n. 
 To the summary jurisdiction of the Court. 
 In general, 96, 7. 
 By striking off the roll, 97. 
 By granting an attachment, 97. 
 
 Nature of, 97, n. 
 By fining, 98, 99—101. 
 By compelling him to answer an oath, 98. 
 Costs of such proceedings, 98, n. 
 
 Quaker may, by affirmation, call on attorney to answer, 99, n. 
 By compelling performance of contracts. 
 As to pay money, 104. 
 
 Personal service of attachment in such case necessary, 105, n. 
 Or fulfil other engagements, 105. 
 By compelling attornies to discover client's place of residence,! 06, 7. 
 By compelling delivery of deeds, papers, &c. 107; and see tit. 
 "Deeds."
 
 INDEX. 
 
 Attornies continued. 
 
 To the bankrupt laws, 110, 111, 112. 
 Collateral liabilities. 
 
 Authority. 
 Extent of. 
 
 Where authority conferred to obtain a definite object, S3, 4, 5. 
 Where authority conferred for general plirposes, 33, 4, 5. 
 Is, in actions, only co-extensive with entering the judgment, 34. 
 Does not extend to writs of error, 34. 
 Does not extend to scire facias against bail, 34. 
 or to revive the judgment, 34. 
 Determination of. 
 By lapse of time, S5. 
 By death. 
 
 Of a sole plaintiff, S5, n. 
 defendant, S5, n. 
 By order of a court or a judge, SQ. 
 Effect of attorney's acting without due appointment, 36. 
 
 Awards. 
 
 Lien on, 144. 
 
 Bail. See tit. " Scire Facias." 
 
 Attornies cannot be — in civil cases, 77. 
 
 Nor can bail justify if indemnified by attorney, 77, n. 
 
 But the attorney must be practising to disqualify him, 77. 
 
 Whether, when attorney put in as bail, he is considered a nullity, 77, 78. 
 Bail-bond. 
 
 Attorney's entering into, divests him of his privilege, 43, 4. 
 Bankrupt — Commission of. 
 
 Costs of solicitor under — are taxable, Q5. 
 
 Solicitor is bound to produce proceedings under, unless prejudicial to 
 assignees, 51. 
 
 Bankrupt, 
 
 Effect of attorney's becoming — on the original payment of clerk's pre- 
 mium, 17. 
 Barrister. See "Service under Articles." 
 
 Opinion of, in some cases, protects attorney, 83, 4. 
 Fine for not feeing. Addenda to p. 101. 
 Bill. See tit. " Actions against Attornies." 
 Nature of. 
 
 In the King's Bench, 152. 
 Manner of filing it, 153. 
 In the Common Pleas, 154. 
 Manner of filing it, 154, 5. 
 Effect of attorney not appearing, 155. 
 In the Exchequer, 155. 
 
 Bill of Costs. See tit. " Taxation." 
 
 Must be delivered before action — in what cases, 115, 116, 117, 118. 
 And cannot be avoided. 
 
 By waiving part of demand, 117. 
 
 Or by agreeing to charge at a certain rate, 117. 
 
 Or on the principle of " No cure, no pay," 118.
 
 INDEX. 
 
 Bill of Costs continued.— Duties payable. 
 How prepared, 118, II!). 
 When delivered, 119. 
 
 To whom, and how delivered, 119, 120, 121. 
 Set-oft; of, 58, 59 ; 1 II, 5, 6,7, 
 
 Action cannot be maintained, as to, afterpayment of bdl, for difference 
 between sum paid, and amount of taxation, Addenda to p. 03. 
 
 Bill of Exchange. 
 
 Attorney sued on, may claim his privilege, 38, n. 
 
 Capias. See " Exchequer." 
 Certificate. 
 
 When taken out, 22. 
 Duration of, 22. 
 In London, 23. 
 Elsewhere, 23. 
 Registry. 
 
 When registered, 23. 
 Omission to register. 
 Effect of, 23. 
 Indemnity acts, 22, n. 
 Neo-lect to obtain for a twelvemonth, incapacitates to practise, 40. 
 But not where neglect arises from sickness or infirmity, 11. 
 Taking out certificate after ceasing to take out, and recommencing practice 
 does not recapacitate an attorney, 41. 
 Champerty and Maintenance. 
 In general, 86, 7. 
 What amounts to, 87, 8. 
 Change of Attornies, 163, 4, 5. 
 Ch urch jva rdcns. 
 
 Attornies ineligible as, 45. 
 
 Clerics. 
 
 Disputes between, and their masters. See tit. " Premium." 
 
 Number of, 81. 
 
 Not allowed to be bail except to render, 77. 
 
 Clerkship. See tits. " Articles of Clerkship," " Service." 
 
 Client. 
 
 Liabilities of. 
 In general, 114. 
 
 To the agent of the attorney, 173. 
 Right to have his attorney's bill taxed. See " Taxation of Bill." 
 Commission of Bankrupts. See tit. " Bankrupt — Commission of." 
 Composition-deed. 
 
 Attorney not bound to produce, in which his client is interested, 51. 
 
 Compromise. 
 
 Client is bound by attorney entering into, S3. 
 
 Conusance. 
 
 Beinc claimed by inferior court does not divest attorney in superior court 
 of his authority to act in the former, 34. 
 
 Conveyancing. 
 
 Bill for— not taxable, 67, 67, n. 4.
 
 INDEX. 
 
 Constables. 
 
 Attornies — ineligible as, 45. 
 Contracts. 
 
 Attorney — how far personally bound by, 94, 5. 
 Coroner. See " Service under Articles." 
 Corporations. 
 
 Aggregate, must appoint attorney under common seal, 27. 
 Costs. See " Actions by Attornies, " Lien," " Negligence," " Taxation of Bill." 
 Counsel. See tit. " Barrister." 
 Counterpart. See tit. " Articles of Clerkship." 
 Court of Requests. See tit. " Requests— Court of." 
 Damages. 
 
 Attorney may remit — so as to bind employer, 33. 
 Death. See tit. "Authority." 
 
 Of attorney — does not affect taxation of bill, 61. 
 Decrees. 
 
 Lien on, 142. 
 Dedimus Potestatem. 
 
 Is a taxable item, 64. 
 Deeds. See tit. " Lien." 
 
 When compelled to deliver up. 
 In general, 107. 
 
 Where third party interested in, 107. 
 Must also deliver up drafts, 108. 
 They must, however, have come to hand in a professional capacity, 
 
 108, 9. 
 But solicitor must, in all cases, produce papers in a cause, 109. 
 Detainer. 
 
 Attorney may be detained on mesne process, 41. 
 Disabilities. See tit. " Attornies." 
 Duties. See tit. " Attornies." 
 
 Election of Members of Parliamen-t. 
 
 Attorney employed on an, cannot refuse to state in evidence his having 
 been at candidate's bankers for tickets to be distributed to voters, 49, n. 
 Enrolment. See tit. " Articles of Clerkship." 
 Error — writ of. 
 
 Attorney's authority does not extend to, 34. 
 Estate. See tit. " Purchase." 
 
 Attorney purchasing, Addenda to p. 106. 
 Examination. See " Admission." 
 Exchequer. 
 
 Attorney may be arrested on capias out of court of, 42. 
 Executor and Administrator. 
 
 Attorney acting as such loses his privilege, 38. 
 
 Bill delivered by — taxable, 68. 
 
 Need not deliver their testator's (an attorney) bill of costs before action, 
 118. 
 
 Not liable to costs of taxation on solicitor's bill, 75. 
 VOL. II. 2 F
 
 INDEX. 
 
 Extent. 
 
 Charges for prosecuting crown extent are taxable, 64. 
 
 Felon//. 
 
 Attorney convicted of — liable to be struck off the roll, 99. 
 Although indictment be afterwards untenable, 99, n. 
 
 Feme Covert. See tit. "Appointment of Attornies." 
 
 Fortreri/. 
 
 Attorney convicted of — subject to transportation, 100, n. 
 
 Game Laws. 
 
 Party charged with offence against, before justices, quaere, if entitled to 
 have his attorney present, 55, 6, 7. 
 
 Gift. 
 
 Whether, of land in suit, after termination of — is champerty, 87, n. 
 
 Graduates. See tit. " Service under Articles." 
 
 House of Lords. 
 
 Business done in — not taxable, 67. Sed vide Addenda. 
 
 Idiots. See tit. " Appointment of Attornies." 
 
 Indemnity Acts. See tits. " Appointment of Attornies." " Articles of 
 Clerkship." " Certificate." 
 
 Infant. See Addenda to p. 81. 
 Inn-keeper. 
 
 Attorney liable to — for expenses of witnesses, 95. 
 
 Inns of Court. 
 
 Residence of attornies in, 8. 
 Introduction, 5. 
 Judgments. 
 
 Lien on, 142. 
 Jury. 
 
 Attorney exempted from serving on, 52. 
 
 What he should do when chosen, 55. 
 
 Justices of the Peace. 
 
 Attorney's right to attend on proceedings pending before, 55, 6, 7. 
 
 King. 
 
 Attorney sued by — cannot claim privileges, 40. 
 
 Kino's Coroner. See tit. " Service under Articles." 
 
 o 
 
 Liabilities. See tit. " Attornies," subdiv. " Liabilities of." 
 
 Lien. 
 
 Different species of, 136. 
 On deeds and papers. 
 
 In general, 137. 
 
 When solicitor changed, 137. 
 
 Where client has no power over them, 138, 9. 
 
 Where rights of third parties are infringed, 138, 9. 
 
 Where securities are accepted, 139, 140. 
 
 Where affected by the bankrupt laws, 141, et vide Addenda. 
 On judgments and decrees, &c. 142. 
 On awards, 144.
 
 INDEX. 
 
 Lien continued. 
 
 How far subordinate to the equitable claims of the parties, 114, 5, 6, 7. 
 
 How waived, 147. 
 
 How regained, 148. 
 
 Attorney not liable for interest on sum detained for costs. Addenda. 
 Limitation, Statute of. 
 
 When a bar, 163. 
 
 Londo)i Court of Requests. 
 
 Attorney may be sued in, 44. 
 
 Magistrates. See tit. "Justices of the Peace." 
 
 Maintenance. See tit. " Champerty and Maintenance." 
 Messenger. 
 
 Attorney not liable to, under bankrupt commission, 95 . 
 
 Middlesex — Court of Requests of. 
 
 Attorney is exempt from jurisdiction of, 44. 
 Monies. 
 
 Lien on, 142, 3. 
 
 Negligence. See tit. '* Attornies," subdiv. " Liabilities of." 
 What amounts to, p. 88, &c. and Addenda. 
 How far a defence to an action by attorney for his bill, 134. 
 Costs awarded for, Addenda to p. 102. 
 
 Notice. See tit. " Admission." 
 
 Oaths. See tit. " Admission." 
 
 Offices. See tit. " Attornies." 
 
 Opinion. See tit. " Barrister. " 
 
 Orders in Chancery. See tit. " Negligence," and Addenda to p. 102. 
 
 Overseers. 
 
 Attornies ineligible as, 45. 
 
 Penalties. See tits. " Admission," "Certificate," "Attornies." 
 
 Payments. 
 
 Made to an attorney are good, 59. 
 
 But not so to his clerk or agent, 59. • 
 
 Perjury. 
 
 Attorney convicted of, subject to transportation, 100, n. 
 
 Petty Bag Office. 
 
 Attorney may be arrested by sworn clerk of, 43. 
 
 Pleadings. See tit. " Actions against Attornies." 
 In actions by attornies. 
 Declaration. 
 
 Time for, 126. 
 
 Statement of term, 12G. 
 
 Venue. See tit. " Venue." 
 
 Commencement of, 127. 
 
 Subject-matter of, 127. 
 
 Conclusion of, 128. 
 Subsequent pleadings, 158.
 
 INDEX. 
 
 I'rciHiHni. See tit. " Bankrupt." 
 
 Where courts will order part ot it to be repaid, 16. 
 
 Prisoner. Attorney by his retainer cannot sign a note for prisoner's allow- 
 ance under the Lord-s' Act, Addenda to p. 34. 
 
 Privilege. 
 
 Different kinds of, enjoyed by attornies. See tits. "Actions against 
 
 Attornies," " Attachment of Privilege," "Attornies." 
 Plea of. 
 
 Nature of, 159. 
 When to be pleaded, 159. 
 Mode of constructing it, 159. 
 Affidavit in support of, 159. 
 Writ of See tit. " Writ of Privilege." 
 
 Process. See tits. " Actions by Attornies," ** Actions against Attornies," 
 " Exchequer." 
 
 Purchase. 
 
 Inability of attorney to purchase from client, 81. 
 
 Quaker. 
 
 May, by affirmation, call on attorney to answer matters charged against 
 him, 99, n. 
 
 QualiJicatJons. See tit. "Attorney." 
 
 Quarter Sessions. 
 
 Charges for business done at, are taxable, 64. 
 
 Qui Tain Action. 
 
 Attorney sued in, entitled to privilege, 40. 
 
 Re-admission. 
 In general, 166. 
 Terms, notice of, 167. 
 Arrears, payment of, 167, 8, 9. 
 Rule and affidavit for, 169, 170. 
 On what day attorney may be readmitted, 170. 
 
 Reference. 
 
 Client is bound by his attorney agreeing to a, 33. 
 
 Registry. See tits. " Articles of Clerkship," "Certificate." 
 
 Requests — Court of. 
 
 Attorney not subject to jurisdiction of, 44, 
 
 Responsibility. See tit. " Attornies." 
 
 Retainer. See tit. " Prisoner." 
 Attorney not bound to accept, 31. 
 But bound to go on after acceptance of, 31. 
 
 Unless money not supplied, 32. 
 Need not shew specific party marrying woman originally liable, Addenda 
 to p. 129. 
 
 Scire Facias. 
 
 Attorney's authority does not extend to a, against the bail, 34.
 
 INDEX. 
 
 Service under Articles. See " Articles of Clerkship," and Addenda to p. 14. 
 Must be free from collusion, 13. 
 
 continued and uninterrupted, 13. 
 With whom it ought to be. 
 
 In general, 15, et vide Addenda. 
 With an agent, 15. 
 
 With clerk to king's coroner, &c. 15, n. 
 With clerk in office of six-clerk, 15, n. 
 Period of. 
 
 In general, 16. 
 
 In the case of graduates, 16, 
 
 students of barristers or special pleaders, 16. 
 Two services under articles, both constituting a good service, but invalid 
 when taken separately, will not suffice, Addenda to p. 14. 
 
 Set-off. See tit. " Bill of Costs." 
 
 Sewers. 
 
 Attornies not eligible as commissioners of, 45. 
 Sheriff. 
 
 Attorney ineligible as, 45. 
 
 Six-Clerk. See tit. " Service under Articles." 
 
 Solicitor. 
 
 Definition of the term, 4. 
 
 When first mentioned in statute-book, 7. 
 
 Cannot become legal adviser to his client's opponent, 85. 
 
 Special Pleader. See tit. " Service under Articles." 
 
 Stamps. See tits. " Admission," " Articles of Clerkship," " Certificate." 
 
 Striking off the Roll. 
 
 In general, 97, 99, 100, 101. Sed vide Addenda to p. 14. 
 How far one court will follow example of another, 104. 
 Not a perpetual disability, 104. 
 
 Suhpcena duces tecum. See tits. " Commission of Bankruptcy," " Cem- 
 position Deed." 
 Attorney served with, should always attend, 51. 
 
 Summary Jurisdiction. 
 
 Liability of attorney to, of court, 98, 9, 100, 101, 2. 
 
 When unqualified persons practise, or those that are qualified permit it, 
 23, 4, 5,Q. 
 Surveyor of Taxes. 
 
 Cannot effectually serve as clerk to an attorney, 13. 
 
 Taxation of Bill of Costs. 
 
 Introductory remarks as to, 61. 
 When ordered. 
 
 At common law, 61, 61, n. 63. 
 By statute. 
 
 By whom ordered, 62, 3. 
 At whose instance, 6^, Q>^, n. 
 Terms on which order made, QS. 
 What bills have been ordered for taxatioji. 
 In general.
 
 INDEX. 
 
 Taxation of Bill of Costs continued. 
 
 Instructions to commence suit— drawing affidavit of debt, &c. are 
 
 taxable, 61. 
 So are charges for holding a courtleet, in a bill with other taxable 
 
 items, 64. 
 So a dcdinws j)otcstalem, 64. 
 
 So charges for prosecuting crown extent, are, 64. 
 So attending defendant to lock-up house, filling up bail-bond, &c. 64. 
 So are charges for business at Quarter Sessions, 64. 
 So charges at Welsh Sessions, 6.5. 
 So charges, for obtaining bankrupt's certificate, and applying for 
 
 Chancellor's signature, {!>5. 
 So costs of a solicitor under bankrupt commission, 0)5. 
 But a charge for drawing an affidavit of debt, &c. to the Chancel- 
 lor to obtain a commission, is not taxable under the statutory 
 jurisdiction of the courts, 65. 
 
 it has however been referred under the general jurisdiction, 65. 
 So charges of a solicitor for proceedings before the Chancellor, in 
 
 exercise of a visitorial power, are not, (!>7. 
 Nor for soliciting an act of parliament, 67. 
 
 Nor for business in Dam. Pre. 67. Sed vide Addenda to p. 67. 
 Nor for conveyancing, 67, 67, n. 4. 
 Where bill contains a variety of items, 68 ; ct vide Addenda. 
 Where attorney dies, 68. 
 Period of taxation. 
 In general. 
 
 May be always taxed before payment, 68. 
 But not at the trial, 69. 
 
 StiH less after credit, Q>5. Sed vide p. 65 & G6. 
 
 Where, however, the charges are fraudulent, it will even then be 
 referred, 70, 71. 
 Effect of security being given for costs, 70. 
 Effect of particular arrangements, 71. 
 By whom bill to be taxed, 71. 
 Mode of enforcing taxation, 71, n. 72, n. 
 Costs of taxation. 
 By whom paid, 73, 4, 5. 
 Executor not liable to, 75. 
 How recovered, 75, n. 
 
 Taxes. See tit. "Surveyor of Taxes." 
 
 Tower Hamlets — Court of Request of. 
 Attorney may be sued in, 44. 
 
 Tithing-men. 
 
 Attornies ineligible as, 45. 
 
 Under-sheriff. 
 
 Attorney ineligible as, 45. 
 
 Undertakings. See tit. " Attornies." 
 
 To pay costs, not discharged by client's death, Addenda to p. 95. 
 University. 
 
 Member of either, cannot assert privilege against attorney suing as 
 such, 123, n.
 
 INDEX. 
 
 Unqualijied j}erso7)s. 
 
 Effect of their practising, 23, 4, 5, 6. 
 
 Effect of attornies sanctioning such practice, 23, 4, 5, G. 
 
 Effect of such practising, on the proceedings in the cause, 26. 
 
 Unskilfulness. See tit. " Attornies." 
 
 Venire facias. 
 
 Attornies suing in Exchequer must adopt this process, 125. 
 
 Venue. 
 
 Attorney may always, as plaintiff, retain his venue in Middlesex, 126, 7. 
 Unless he sue as a common person, 127. 
 Or in atiter droit, 12?. 
 
 Waiver of undertakings. Addenda to p. 104. 
 
 Wales. 
 
 Charges for business done at Great Sessions in, are taxable, Q>5. 
 
 Warrant of Attorney. See tit. "Retainer." 
 Contents of, 30. 
 Stamp, 31. 
 Amendment of, 30. 
 When to be filed, 29. 
 Omission to file. 
 
 Not ground of error, 29; et vide Addenda. 
 Subjects attorney to penalty, 29. 
 When aided after verdict, 30. 
 Where entered — 
 
 In the Court of King's Bench, 29. 
 Common Pleas, 30. 
 Period of its remaining in force, 34. 
 Watch and Ward. 
 
 Attornies ineligible to do, 45. 
 Westminster — Courts of Request of. 
 
 Attorney may be sued in, 44. 
 Witness. 
 
 Attorney privileged as. See tit. " Attornies." 
 
 Writ of Privilege. 
 When necessary — practice relating to, 54, n. 
 
 THE END.
 
 LONDON: 
 
 JAMES HOLMES, ATHEN^UM OFFICK 
 4, TOOK'S COl'RT, CHANCERY LANE. 
 
 ^9
 
 LAW LIBRARY 
 
 UNIVERSITY OF CALIFORNIA 
 LOS ANGELES
 
 UC SOUTHERN REGIONAL LIBRARY EACILITY 
 
 AA 000 719 476
 
 
 1