1
 
 AN 
 
 ESSAY 
 
 USES AND TRUSTS, 
 
 AND ON THE 
 
 Jlatur*' antr Operation 
 
 OF 
 
 CONVEYANCES AT COMMON LAW, 
 
 AND OF THOSE, WHICH DERIVE THEIR EFFECT FROM 
 
 THE STATUTE OF USES. 
 
 FOURTH EDITION, 
 
 REVISED, CORRECTED, AND CONSIDERABLY ENLARGED. 
 
 BY FRANCIS WILLIAMS SANDERS, ESQ. 
 
 of Lincoln's inn, barrister. 
 
 IN TWO VOLUMES. 
 
 VOL. I. 
 
 OF USES AND TRUSTS. 
 
 LONDON: 
 PRINTED FOR W. WALKER, 
 
 No. 196, OPPOSITE ST. CLEMENT'S CHURCH, STRAND. 
 
 1824.
 
 r
 
 
 I 
 
 AS an acknowledgment for the in- 
 formation, which I have received, during my at- 
 tendance for many years at the Conveyancing 
 Counsel's Club, of which I am a Member, and 
 for the uniform kindness, which I have expe- 
 rienced from the individuals composing it, I 
 embrace, with peculiar satisfaction, the oppor- 
 tunity of dedicating to the other Members of 
 the Club, the Fourth Edition of this Essay. 
 From the nature of their professional studies and 
 pursuits, they are best qualified to discover the 
 merit, if any, which it may possess ; and, I am 
 satisfied, they will be indulgent, and make some 
 allowance for the errors, which, no doubt, it 
 contains. 
 
 F. W. SANDERS. 
 
 Lincoln s Inn, 
 Dec. 1823. 
 
 VOL. I. 
 
 KfOOO.. 

 
 TABLE OF CONTENTS 
 
 OF THE 
 
 FIRST VOLUME. 
 
 CHAP. I. 
 
 Of Uses and Trusts before the Statute 27 Hen. 8. c. 10, 
 
 I. Definition of a Use, 1. 
 
 II. Distinction between Uses and equitable Interests and Trusts 
 not within the Statute 1 Rich. 3. 2, 3. 
 
 III. Introduction of Trusts of a special or transitory nature, 7. 
 
 IV. Introduction of Uses or permanent beneficial Interests, 15. 
 V. History of Uses until the Reign of Richard 3., 16. 
 
 VI. Operation and Effect of the Statute 1 Rich. 3., 23. 
 
 Of the Effect of the Alienation of Cestuique Use 
 upon the legal Estate of the Feoffee, when made by 
 Cestuique Use, 
 
 in fee simple, \ 
 in fee tail, ? 23 to 30. 
 or for life, + 
 Of Trusts or beneficial Interests not within the Statute 
 1 Rich. 3. when declared upon, 
 Estates tail, -\ 
 
 for life, I 30 to 44. 
 
 for years, ' 
 Legal Estates vested in Grantees, either 
 at common law or by the Stat. 27 Hen. 
 8, c. 10., 45 to 48. 
 b2
 
 ii CONTENTS OF THE 
 
 Chap. I. Of Uses and Trusts, continued. 
 
 Of the alienation of Cestuique Use in remain- 
 der, &c. 48. 
 
 Of leases by Cestuique Use, 49. 
 
 Of devises by Cestuique Use, 49. 
 
 Of the feoffments, statutes merchant, &c. of 
 Cestuique Use, 50. 
 
 VII. The History of Uses, continued, 50 to 53. 
 
 VIII. The Statute 23 Hen. f t 8. c. 10. respecting Charitable Uses, 53. 
 Construction of it, 54. 
 
 IX. The Requisites to be observed in raising Uses, 55. 
 
 A person capable of standing seised to a Use, 56. 
 Privity of estate, 1 
 
 Confidence of Person, 5 
 
 A person capable of taking the Use, 59. 
 
 A consideration or declaration, 61. 
 
 An hereditament, 63. 
 
 X. The Properties of a Use, 64. 
 
 It was descendible, 64. 
 devisable, 65. 
 alienable, 65. 
 Cestuique Use had neither jus in re nor ad 
 
 rem, 66. 
 He might have been sworn upon an inquest, 67. 
 The feoffee was complete owner at law, 68. 
 Uses differed in many instances from cases of 
 possession, 68. 
 
 XI. Statute 27 Hen. 8. c. 10., 69.
 
 FIRST VOLUME. 
 
 CHAP. II. 
 
 Of Uses since the Statute 27 Hen. 8. c. 10. 
 
 I. The Statute did not abolish the practice of conveying to 
 Uses, 85. 
 II. Of the Circumstances necessary to the Execution of Uses, 87. 
 A person seised to a Use or Trust, 87. 
 
 Of Trusts, not strictly Uses, executed 
 by the statute, 88 to 91. 
 A Cestuique Use, 91. 
 
 Not being himself the Grantee to 
 Uses, 91 to 94. 
 
 Exceptions, 95, 96. 
 A Use in esse, 97. 
 
 Of express Uses, ibid. 
 
 By what words created, 
 98, 99. 
 Of implied or resulting Uses, 99 to 107, 
 An Hereditament, 107. 
 A Seisin in the Grantee to Uses, 108. 
 
 Of an actual seisin, co-extensive with 
 
 the Use, 109. 
 Of the possibility of seisin, or scintilla 
 juris, 110 to 114, 
 An actual conveyance, 114 to 118. 
 
 III. As to the Effect of the Union of the Use and Possession, 
 
 In respect to the Grantee, 119. 
 
 In respect to the Cestuique Use, 119. 
 
 IV. Of Limitations, which correspond with the Rules of the com- 
 
 mon Law, 
 
 In the creation of Estates for life, 122. 
 
 in fee-simple, ibid, 
 in tail, 123. 
 in common, 124. 126. 
 1)3
 
 CONTENTS OF THE 
 
 Chap. II. Of Uses since the Statute 27 Hen. 8. c. 10. continued. 
 
 As to the Cesser of the Estate of tenant in tail, 
 
 during his life, 126. 
 Fractions in the limitations of the Use, 128. 
 Uses cannot be limited to abrogate the law, 128. 
 V. Of the Limitations of Uses, and Creation of legal Estates by 
 the Statute, which differ from the Rules of the 
 common Law, 129. 
 Of Uses limited to, and legal Estates vested in, 
 
 Grantors by their own conveyances, 129. 
 Of Uses limited to the heirs of the body, or right 
 heirs, of the Grantor, so as to take by descent 
 or purchase, 131 to 134. 
 Of limiting the Use, by the habendum, to a person 
 
 not named in the premises of a deed, 134. 
 Of Uses limited to two, the one being incapable, 
 
 135. 
 Of Uses limited in futuro, and to persons not in 
 esse, where no particular estate is expressly 
 limited, 136 to 138. 
 
 In what cases these future Uses 
 arise as remainders or springing 
 Uses, 138, et seq. 
 Of springing Uses after, or upon a previous limita- 
 tion in fee-simple, 143. 
 
 In what cases these springing 
 Uses may be destroyed, 145 to 
 149. 
 Of springing Uses, upon or after, a previous limita- 
 tion in tail or for life, 149. 
 
 Of the distinction between shifting 
 Uses and conditional limitations, 
 150 to 153. 
 Tenant in tail may bar shifting 
 Uses, 153. 
 Of shifting or springing Uses, arising upon the 
 execution of a power, 154.
 
 FIRST VOLUME, xi 
 
 Chap. II. Of Uses since the Statute 27 Hen. 0. c. 10. continued. 
 
 They must arise out of a seisin, 
 not clothed with a legal estate 
 at the common law, 155 to 162. 
 As to the priority of powers, 164 
 
 to 169. 
 Different kinds of powers, 169 
 
 to 171. 
 Destruction of powers, 171 to 
 
 192. 
 Of the seisin whereout a shifting 
 or future Use must arise, 193. 
 Rules restraining springing Uses within the limits 
 prescribed against perpetuities, 194 to 205. 
 VI. Effect of the Statute of Uses upon the Laws of Remitter, 205 
 
 to 210. 
 VII. Of the Declaration of Uses, 210. 
 
 Who may declare Uses : 
 
 The King, 213. 
 
 The Queen, > 
 
 Idiots, v 214. 
 
 Infants, j 
 
 Baron and Feme, 215 to 218. 
 
 Tenant for life and remainder-man, 
 
 218. 
 Joint-tenants, 218. 
 In what case a first declaration shall be controlled 
 
 by a subsequent, 219 to 228. 
 When there are contradictory declarations of the 
 
 Use in the same conveyance, 228. 
 The construction upon, and the effect of, the de- 
 claration, 229. 
 
 No formal words are necessary, 
 
 ibid. 
 It must be certain, ibid. 
 No consideration necessary, 230. 
 Where it breaks the descent; ibid. 
 b4
 
 xii CONTENTS OF THE 
 
 Chap. II. Of Uses since the Statute 27 Hen. 8. c. 10. continued. 
 
 VIII. Of Uses and Trusts which are not executed by the Statute, 231, 
 
 Contingent Uses, 232 to 241. 
 
 Uses limited of Copyhold Estates, 241. 
 
 Devises to Uses, ibid. 
 
 Trusts to pay the Profits, convey the Estate, &c. 243. 
 Extent of the legal Estate vested 
 in Trustees, under, or in conse- 
 quence of Trusts of this Descrip- 
 tion, 245 to 263. 
 
 Terms of Years and other Chattel Interests, 263. 
 
 Use upon a use, ibid. 
 
 CHAP. III. 
 
 Of Trusts since the Statute 27 Hen. 8. c. 10. 
 
 I. The Introduction and System of Trusts since the Statute, 265, 
 
 II. Definition of the several Kinds of Trusts, 267. 
 
 Difference between a Trust and Equity of Re- 
 demption, 267. 
 
 III. In what cases Trusts are governed by, or in conformity to, 
 
 the Laws relative to legal Estates, 269. 
 
 Limitations of Trust Estates, 269. 
 
 Estates tail, ibid. 
 Descent of Trust Estates, 270. 
 Trust Estates may be aliened, 271. 
 devised, ibid. 
 Execution may issue upon the Trust Estate, 272. 
 
 But not upon the Trust of a Term 
 of Years, or equity of redemption, 
 272 to 275. 
 The Trust Estate is assets to pay Debts, 276.
 
 FIRST VOLUME 
 
 Chap. III. Of Trusts since the Statute 27 Hen. 8. c. 10. continued. 
 
 Is subject to an extent from the 
 
 crown, 277- 
 Is forfeited by the treason of Ces- 
 tuique Trust, 278. 
 An equitable Estate is comprised under the word 
 " Hereditament," in the construction of an act 
 of parliament, 279. 
 The Trust Estate is subject to courtesy, ibid. 
 The Trust Estate is protected in equity from dor- 
 mant claims, by analogy to the Statutes of Li- 
 mitations, 280. 
 
 Writs of right and formedon, 281. 
 The Trust Estate may be barred by fine and non- 
 claim, 283 to 288. 
 IV. In what cases Trusts differ from legal Estates, 288. 
 As to dower, ibid, 
 escheat, ibid. 
 The effect of length of time as between the 
 
 Trustee and Cestuique Trust, 289. 
 Fine and non-claim between them, 291. 
 Terms attendant upon the inheritance, 292 to 297. 
 Conversion of real into personal estate, and personal 
 
 into real estate, 298 to 304. 
 Mergers of equitable interests, 304 to 310. 
 V. Of Trusts executed and executory, 310. 
 
 As arising upon marriage articles, t 
 
 ... ' } 310 to 314. 
 
 upon wills, } 
 
 VI. Of Declaration of Trusts pursuant to Stat. 29. Car. 2, c. 3. 
 
 sec. 7, 315. 
 
 In respect of the form of the declaration, 315. 
 
 to the words of the declaration, 316. 
 
 As to the operation of particular words, such as 
 
 " rents and profits," 317. 
 
 VII. Resulting and constructive Trusts, 318. 
 
 Constructive Trusts arising from notice, 319. 
 
 Where an estate is purchased in the name of one,
 
 xiv CONTENTS OF THE 
 
 Chap. III. Trusts since the Statute 27 Hen. 8. c, 10. continued, 
 
 and the consideration money paid by, or on ac- 
 count of, another, 322. 
 
 Parol evidence, 324, 325. 
 Exceptions, 326. 
 Where the express declaration extends to a part 
 
 only of the land or interest, 327 to 335. 
 Renewal of a lease by a Trustee, Guardian, or Te- 
 nant for life, 335 to 338. 
 VIII. Of Trusts, as more immediately referring to the person and acts 
 of Cestuique Trust. 338. 
 
 Who may be Cestuique Trust, 339. 
 Actions and suits by Cestuique Trust, 340. 
 Cestuique Trust may vote at an election, 341, 
 Conveyances by Cestuique Trust, ibid. 
 
 Cestuique Trust in fee simple. 342. 
 Cestuique Trust in fee tail, or being 
 a married woman, 344 to 348. 
 
 for life, 348. 
 IX. Of the Trustee, his Estate and Office, 348. 
 
 Who may be Trustees, 348. 
 
 Of incumbrances of, and forfeitures by, the Trustee; 
 
 350. 
 Trustees incapacitated; conveyances by them, as, 
 
 by Trustees, 
 being infants, 
 354. 
 7 Anne, c. 19, and the construction 
 
 upon it, 354. 
 39, 40 Geo. 3. c. 88. s. 12." 
 47 Geo. 3. sess. 2. c. 24. 
 4 Geo. 2. c. 10. 
 Conveyances by Trustees not incapacitated, 
 by will, 358 to 361. 
 by deed, 361. 
 Of purchases by the Trustee of the Trust Estate, 
 
 362. 
 Suits by him, 363.
 
 FIRST VOLUME. xv 
 
 Chap. III. Trusts since the Statute 27 Hen. 8. c. 10. continued. 
 
 Releases and compositions by him, 364. 
 
 He cannot alter the nature of the trust estate, ibid. 
 
 His laches will not, generally, prejudice cestuique 
 trust, 365. 
 
 He cannot vary securities without an express power, 
 ibid. 
 
 When guilty of breach of trust, in complying with, 
 or exceeding, the letter of the trust, 367 to 369. 
 
 When liable to accidental losses, 369. 
 
 Trustees to preserve contingent remainders, 370. 
 
 Trustee may concur in barring the entail, ibid. 
 
 But he is not to convey a fee simple to a cestuique 
 trust in tail, 371. 
 
 Allowances to Trustees for their care, 373. 
 
 for their expenses, 374. 
 
 Where a breach of trust shall fall upon the estate 
 of cestuique trust, 375. 
 
 The Trustee only chargeable for what he has actu- 
 ally received, ibid. 
 
 APPENDIX. 
 
 No. I. Proviso, shifting the Use upon Neglect or Refusal to take a 
 
 Name, and bear certain Arms, 377. 
 No. II. Proviso for shifting the Use upon the Accession of another 
 
 Estate, 382. 
 No. III. (a.) Power to lease for twenty- one years in Possession at 
 Rack-rent, 384. 
 (J>.) Power to lease for three Lives in Possession or Re- 
 version, at ancient or accustomed Rents, 385. 
 (c.) Power to lease, where the Property is subject to sub- 
 sisting Leases, 388.
 
 xvi CONTENTS OF THE FIRST VOLUME. 
 
 Appendix continued. 
 
 (d.) Power to grant repairing or building Leases, 392. 
 (e.) Power to grant building Leases on waste or unculti- 
 vated Lands, 395. 
 (/.) Power to grant mining Leases, 399. 
 No. IV. (a.) Power enabling a Tenant for Life in Possession to li- 
 mit a Rent-charge, by way of Jointure, 403. 
 (b) Power enabling Tenants for life in Remainder to li- 
 mit Rents-charge, by way of Jointure, 406. 
 (a.) Proviso enabling a Tenant for Life in Possession to 
 charge for younger Children's Portions, 410. 
 No. V. (b.) Proviso enabling successive Tenants for Life in Re- 
 mainder to charge for youngerC hildren's Portions, 413. 
 No. VI. Power of selling and exchanging, 419. 
 No. VII. Opinion in the case of Roper v. Halifax, 426. 
 No. VIII. Power to appoint new Trustees, 439.
 
 Names of CASES in the First Volume. 
 
 Abbot of Bury v. Bokenham, 58. 
 
 Abingdon and Godolphin, 133. 271. 
 
 Abney v. Miller, 335. 
 
 Abraham v. Twig, 123. 
 
 Adams v. Savage, 104. 142. 143. 
 
 Addenbrooke and Cross, 300. 
 
 Adlington v. Can, 271. 325. 
 
 Aggas v. Pickerell, 290. 
 
 Allan v. Backhouse, 318. 
 
 Allen and Bush, 244. 
 
 Allen v. Sayer, 365. 
 
 Allington and Boteler, 262. 343. 
 
 Alston and Taylor, 325. 
 
 Althain v. Anglesey, 91. 101. 156. 
 
 Ambrose v. Ambrose, 316. 
 
 Amhurst v. Skinner, 279. 
 
 Amy Townsend's case, 207. 
 
 Anderson v. Dawson, 346. 
 
 Andrews and Back, 326, 327. 
 
 Andrews v. Partington, 367. 
 
 Angel and Brewster, 313. 
 
 Anglesey and Altham, 91. 101. 156. 
 
 Annesley (in the matter of), 373. 
 
 Annesley(Lord)ararfHovendon,354. 
 
 Appowel v. Monnoux, 120. 
 
 Archer and Lamb, 137. 
 
 Argol v. Cheney, 102. 218. 
 
 Armstrong v. Wolsey, 100. 
 
 Ashburner and Fletcher, 298. 303. 
 
 Ashby v. Palmer, 303. 
 
 Ashdown and Stileman, 327. 
 
 Ashley and Harvey, 215. 
 
 Ashly and Clifford, 284. 
 
 Ashton and Tratford, 318. 
 Aston and Harvey, 300. 
 Aston and Wolstan, 284. 
 Astrey and Langton, 319. 
 Attorney-general v. Brooke, 319. 
 Attorney-general v. Buller, 360. 
 Attorney-general v. Crofts, 278. 
 
 Attorney-general v. Lord Dudley, 
 
 363. 
 Attorney-general v. Magwood, 319. 
 
 Attorney-general and Pawlett, 267. 
 352, 353. 
 
 Attorney-general and Reeve, 353. 
 
 Attorney-general v. Sands, 276.293. 
 
 Attorney-general v. Vigor, 360. 
 
 Attorney-general v. Wansey, 334. 
 
 Attorney-general v. Whorwood, 55. 
 
 Audley's Case, 103. 115. 
 
 Austin v. Taylor, 270. 
 
 Ayliffe and Peyton, 289. 
 
 Back v. Andrews, 326, 327. 
 Backhouse and Allan, 318. 
 Baden v. Pembroke, 300. 
 Bagot and Salisbury, 284. 
 Bagshaw v. Spencer, 244. 249. 254. 
 
 258, 259. 312. 
 Baillie and Fraser, 347. 
 Baines v. Dixon, 317. 
 Bainton's Case, 114. 
 Baker and Hunt, 269. 
 Baker and Parsons, 317. 
 Baldwere and Roe, 231.
 
 NAMES OF CASES 
 
 Baldwin and Garth, 269. 
 Bale v. Coleman, 270. 313. 
 Ball and Forbes, 317. 
 Ball and Watts, 279. 
 Ballet and King, 276. 
 Balsh v. Hyham, 375. 
 Banbong and Lusher, 216. 
 Banks and Mills, 318. 
 Bannister and Lc Maitre, 317. 
 Barnardiston and Carter, 252. 
 Barnes v. Crow, 341 . 
 Barnes and Harris, 142. 
 Baron and French, 373. 
 Barron v. Martin, 291. 
 Barry and Leigh, 376. 
 Bartlett and Rose, 273. 
 Barton's Case, 146. 
 Barton and Home, 314. 
 Barrick's Case, 136. 
 Baskerville's Case, 25. 
 Baskerville v. Baskervillc, 314. 
 Basket v. Pierce, 284. 
 Basset and Morgan v. Manxell, 30. 
 Bastard v. Proby, 312. 
 Bate and Kenworthy, 122. 
 Bate and Southouse, 333. 
 Bateman v. Bateman, 326. 
 Bateman (Lord) and Stephen, 310. 
 Bates v. Dandy, 271. 
 Bateson and Betnam, 98. 
 Bath's (Earl of) Case, 253. 
 Bawden and Bingford, 346. 
 Bearcroft and Geary, 351. 
 Beard v. Westcott, 197. 
 Beauclerk v. Mead, 300. 
 Beaudley v. Brook, 107. 
 Beckford v. Wade, 280. 
 Beckwith's Case, 62. 100. 216, 217. 
 Bedford's (Earl of) Case, 133. 
 Belcher and Green, 318. 
 Belchier (ex parte), 369. 
 Bellamy v. Burrow, 315. 
 
 Bcnnet and Brownlow, 276. 
 
 Bennet v. Davies, 350. 361. 
 
 Benson v. Hodson, 154. 
 
 Berkley's Case, 59. 
 
 Bernard v. Montague, 365. 368. 
 
 Bernard and Sprange, 317. 
 
 Bessett's Case, 212. 
 
 Best v. Stamford, 293. 
 
 Best and Stratton, 125. 136. 
 
 Betnam v. Bateson, 98. 
 
 Bevant v. Pope, 351. 
 
 Beverley v. Beverley, 343. 
 
 Bickerston and Rider, 369. 
 
 Biddulph v. Biddulph, 299. 
 
 Biggs and Doe, dem. Leicester, 97. 
 
 228. 
 Bindon and Sweetapplc, 300. 
 Bin ford v. Bawden, 346. 
 Bingham's Case, 133. 
 Bingham v. Hussey, 224. 
 Biscoe and Hylton, 117. 
 Biscoe v. Perkins, 370. 
 Bishop of London and Hill, 317. 
 
 331, 332, 333. 
 Bishop of Norwich and Marquis of 
 
 Townshend, 330. 
 Blackburn v. Stables, 313. 
 Blackctt and Saville, 173. 
 Blake v. Foster, 45. 
 Blakeney and Bostock, 366. 
 Bland v. Bland, 317. 
 Blifheman v. Blitheman, 117. 
 Blue v. Marshall, 364. 
 Blythe and Colgate, 216. 
 Boehm and Trafford, 367. 
 Bokenham and Abbot of Bury, 58. 
 Bonithorn v. Hockmore, 374. 
 Bonny v. Ridgard, 290. 
 Bootli and Trelawney, 300. 
 Boraston's Case, 247. 
 Boscawen and Herle v. Cooke, 76. 
 
 120.
 
 IN THE FIRST VOLUME. 
 
 Bostock v. Blakency, 366. 
 Boswcll and Glenorchy, 312. 
 Boswortli v. Farrand, 253. 
 Boteler v. Allington, 262. 343. 
 Bottomley v. Fairfax, 288. 
 Bovey v. Smith, 321. 
 Bould v. Winston, 146. 
 Bournford and Sanders, 305. 
 Bowater v. Elly, 343. 
 Bowes (ex parte), 360. 
 Bowman and Dobbins, 155. 
 Boydell v. Walthall, 98. 
 Boys and King, 59. 88. 
 Brace and Leigh, 123. 
 
 Bracebridge's Case, 153. 
 
 Bradish v. Gee, 301. 303. 
 
 Bradly and Chalmcr, 290. 
 
 Brailsford and Chambers, 329. 
 
 Bramble and Crabtree, 301. 303. 
 
 Brandon v. Robinson, 270. 345. 
 
 Braybrooke v. Inskipp, 359, 360. 
 
 Brent'sCase, 13. 15.91. 147, 148, 149. 
 
 Brereton and Pearson, 346. 
 
 Brettell (ex parte), 360. 
 
 Brewster v. Angel, 313. 
 
 Bridges and Kingdom, 326. 
 
 Bridges and Philips, 344. 
 
 Bright and Wall, 361. 
 
 Bristol (Countess of) v. Hungerford, 
 331. 
 
 Bromley v. Gooden, 300. 
 
 Brook and Beaudly, 107. 
 
 Brooke and Attorney-general, 319. 
 
 Brooke and Parker, 321. 
 
 Brookeing and Crooke, 316. 
 
 Brookes and Starkey, 331. 
 
 Brookman v. Hales, 335. 
 
 Broughton v. Langley, 97. 
 
 Brown and Goodrich, 344. 
 
 Brown and Lee, 367. 
 
 Brown and Muckleston, 325. 
 Brown and Wareham, 317. 
 
 Browne and Duke of Norfolk, 335. 
 Browne and Pells, 145. 
 Brownlow and Bennet, 276. 
 Browusword v. Edwards, 259. 
 Buckeridge and Long, 92. 157. 
 Buckle and Cannel, 215. 
 Buckler v. Symons, 118. 
 Buckley and Ren, lessee of Hall, 
 
 172. 
 Buller and Attorney-general, 360. 
 Buller and Tuckfield, 356. 
 Buller v. Waterhouse, 164. 
 Bullock v. Fladgate, 302. 
 
 Burden v. Kennedy, 272. 
 
 Burgess v. Wheate, 289. 353. 
 
 Burland and Bushell, 213. 
 
 Burkettw. Randall, 341. 
 
 Burnaby v. Griffin, 345. 
 
 Burrow and Bellamy, 315. 
 
 BurthorpandDoe, dem. Woodcock, 
 248. 
 
 Bury (Abbot of) v. Bokenham, 58. 
 
 Bury and Whetstone, 348. 
 
 Bush v. Allen, 244. 
 
 Bush and Jevon, 364. 
 
 Bushell v. Burland, 213. 
 
 Bustard's Case, 120. 
 
 Butler v. Butler, 367. 
 
 Byrn and Price, 363. 
 
 Cadogan (Lord) and Duke of Rich- 
 mond, 314. 
 Caesar and Spring, 145. 
 Callard v. Callard, 99. 
 Calthorpe's Case, 61. 
 Campbell v. Walker, 362. 
 Can and Adlington, 271. 325. 
 Cannel v. Buckle, 215. 
 Carbery (Lord) and Hartop, 197. 
 Carew and Lloyd, 145. 
 Carlisle and Lechmcre, 300. 
 Carlton and Lowthcr, 321. 

 
 NAMES OF CASES 
 
 Carpenter v. Carpenter, 343. 
 Carr v. Elliston, 302. 
 Carter v. Barnardiston, 252. 
 Carter and White, 312. 
 Carteret v. Carteret, 371. 
 Caruthers v. Caruthers, 215. 
 Carwardine v. Carwardine, 138. 
 Cary and Thynne, 284. 
 Casborne v. Inglis, 351. 
 Casborne v. Scarfe, 279. 
 Cator and Goodright, 168. 
 Cecil's Case, 75. 
 Chalmer v. Bradly, 290. 
 Chaloner and Horsley, 369. 
 Chambers v. Brailsford, 329. 
 Chambers v. Chambers, 311. 
 Chambers v. Goldwin, 373. 
 Chambers and Bichards, 347. 
 Champcrnoon and North, 343. 
 Champion (ex parte), 366. 
 Chandos (Duke of) v. Talbot, 305. 
 Chansey and George, 364. 
 Chaplin v. Chaplin, 264. 279. 
 Chapman and Bichardson, 317. 
 Cheney and Argol, 102. 218. 
 Cheney v. Hall, 224. 
 Chester v. Willis, 306. 308. 
 Chichester and Raw, 335. 
 Chirton's (Walter de) Case, 277. 
 Clutters and Hartwell, 276. 
 Cholmley v. Humble, 127. 
 Cholmondeley (Marquis of) v. Lord 
 
 Clinton, 133. 281. 283. 
 Chudleigh's Case, 111,112. 148, 149. 
 
 232. 236. 
 City of London v. Garway, 331. 
 Clarke and Dawson, 333, 334. 
 Clarke and Goodwin, 195. 
 Clarke v. Phillips, 173. 
 Clay and Smith, 280. 
 Clcmence and Lynch, 341. 
 Clifford t-. Ashly, 284. 
 
 Clifton v. Lombe, 317. 
 
 Clinton (Lord) and Marquis of 
 
 Cholmondeley, 133. 281. 283. 
 Clockmaker's Company and Sowley, 
 
 350. 
 Cloudsley v. Pelham, 317. 
 Clough v. Clough, 215. 
 Coade and Williams, 334. 
 Cock and Hill, 334. 
 Cogan v. Cogan, 150. 
 Colebrook's (Sir George) Case, 
 
 363. 
 Coleman and Bale, 270. 313. 
 Coleman v. Sarrell, 339. 
 Coles and Hunt, 275. 
 Coles v. Trecothick, 363. 
 Colgate v. Blythe, 216. 
 Collett v. Collett, 372. 
 Colt v. Colt, 288. 
 
 Compton v. Oxendon, 305. 307, 308. 
 Compton and Squire, 293. 
 Coningham v. Mellish, 333. 
 Cook v. Duckenfield, 333. 
 Cook v. Guavas, 331. 
 Cooke and Boscawen and Herle, 76. 
 
 120. 
 Cooke v. Cooke, 293. 
 Cookson and Whelpdale, 362. 
 Cooth v. Jackson, 323. 
 Coppin v. Fernyhough, 335. 
 Corbet's Case, 122. 127. 
 Cord well v. Mackaril, 322. 
 Cornbury v. Middleton, 271. 
 Cornwallis and Digby, 340. 
 Cosins and Tippins, 92. 132. 
 Cottington v. Fletcher, 316. 323. 
 
 328. 
 Cotton and Johnson, 216. 
 Countess of Bristol v. Hungerford, 
 
 331. 
 Countess of Rutland's Case, 220, 
 
 226.
 
 IN THE FIRST VOLUME. 
 
 Countess of Warwick and F.dwards, 
 
 300. 340. 
 Coventry v. Coventry, 120. 
 Cowper v. Frankline, 87. 90. 
 Cox's (Sir Charles) Case, 276. 
 Coysegame (ex parte) 341. 
 Crabtree v. Bramble, 301. 303. 
 Crawley's Case, 89. 109. 
 Crisp and Swinnock, 367. 
 Crofts and the Attorney-general, 278. 
 Croker v. Trevithin, 127. 
 Crompton and De Mannevillc, 366. 
 Cromwell's Case, 264. 
 Crooke v. Brookeing, 316. 
 Crop and Surgiss, 344. 
 Cross v. Addenbrooke,,300. 
 Crossing v. Scudamore, 118. 
 Crow and Barnes, 341. 
 Cuming and Robinson, 343. 
 Cunliffev. Cunliffe, 317. 
 Cunningham v. Moody, 300. 346. 
 Cusack v. Cusack, 311. 
 Cutler and Goodwin, 316. 
 
 Dacre's (Lord) Case, 8. 
 
 Dalton and Stamback, 263. 
 
 Danby v. Danby, 305. 
 
 Dancer and Ebrand, 326. 
 
 Dandy and Bates, 271. 
 
 Daniels v. Davison, 319. 
 
 Darey v. Hall, 364. 
 
 Dartmouth (Earl of), and Howe, 
 
 366. 
 Davidson v. Foley, 331. 
 Davies and Bennett, 350. 361. 
 Davies v. Speed, 138, 139, 140. 
 Davis' Case, 24. 
 Davis and Denton, 323. 
 Davis v. Earl of Strathmore, 320. 
 Davis v. King, 317. 
 Davison and Daniels, 319. 
 Dawson and Anderson, 346. 
 
 \ol.i. c 
 
 Dawson v. Clarke, 333, 334. 
 
 Dean and James, 335. 
 
 De Chirton's (Walter) Case, 277. 
 
 Degw. Deg,316. 324. 
 
 Dehcw and Saunders, 319. 
 
 Delamere's Case, 27. 48. 
 
 Delamotte and the King, 277. 
 
 De Mannevflle v. Crompton, 366. 
 
 Denne and Walker, 29S, 299. 
 
 Dennisou and King, 333. 
 
 Denton v. Davis, 323. 
 
 Derivale and Dowse, 29-1. 
 
 Digby v. Cornwallis, 340. 
 
 Digby v. Legard, 332. 
 
 Dighton and Lane, 316. 323, 324. 
 
 Dillon u Freine, 148, 149. 232. 
 
 Dix andUore, 114. 241. 
 
 Dixon and Baines, 317. 
 
 Dixon v. Ewart, 322. 
 
 Dixon v. Saville, 288. 
 
 Dixwell and Roberts, 244. 313. 
 
 Dobbins v. Bowman, 155. 
 
 DodwellaudGosselin, 368. 
 
 Doe, dem. Leicester, v. Biggs, 97. 
 
 228. 
 Doe, dem. Woodcock, v. Burthorp, 
 
 248. 
 Doe, dem. Hull, v. Greenhill, 273. 
 Doe v. Heneage, 128- 
 Doe, dem. Compere, v. Hicks, 261. 
 Doe v. Lea, 247. 
 
 Doe, dem. Otley, v. Manning, 320. 
 Doe, dem. Lord Dormer, t\ Moody, 
 
 40. 
 Doe, dem. Player, v. Nicholls, 244, 
 
 245. 
 Doe v. Pott, 66. 
 Doe, dem. White, v. Simpson, 247. 
 
 249. 
 Doe v. Staples, 341. 
 Doe, dem. Tomkyns, v. Willan, 254. 
 Dolland and Lyster, 272. 275.
 
 NAMES OF CASKS 
 
 DonistUorpe v. 1'orter, 306. 
 Doweling and Moorcroft, 316. 
 Bowman's Case, 211, 212. 
 Downes v. Grazebrook, 363. 
 Downes and Pollard, 340. 
 Downes and Trodd, 246. 
 Downes and Washbournc, 196. 
 Downes and Woods, 363. 
 Dowse v. Derivall, 294. 
 Drury and Woodliffe, 103. 148. 
 Duck and Widdowson, 366. 
 Duckenfield and Cook, 333. 
 Dudley (Lord), and Attorney-gene- 
 ral, 363. 
 Duke of Chandos v. Talbot, 305. 
 Duke of Leeds v. Munday, 360. 
 
 Duke of Newcastle v. Lincoln, 314. 
 Duke of Norfolk's Case, 198. 
 
 Duke of Norfolk v. Browne, 335. 
 
 Duke of Northumberland and Jer- 
 voise, 313. 
 
 Duke of Richmond v. Lord Cado- 
 gan, 314. 
 
 Dugard and Mansfield, 247. 
 
 Duncombe v. Wingfield, 207. 
 
 Dunn v. Green, 343. 
 
 Dumford v. Lane, 215. 
 
 Dyer v. Dyer, 325, 326. 
 
 Dvmock and Young, 93. 
 
 Eales v. England, 317. 353. 
 
 Eare v. Snow, 218. 
 
 Earl of Bath's Case, 253. 
 
 Earl of Bedford's Case, 133. 
 
 Earl of Dartmouth and Howe, 366. 
 
 Earl of Kent v. Steward, 145. 
 
 Earl of Pomfret v. Lord Windsor, 
 
 291. 
 Earl of Somerset's Case, 278. 
 Earl of Strath more and Davis, 320. 
 Earl of Sussex and Leonard, 312. 
 Hail and Senhouue, 321. 
 
 Earlom and Saunders, 302. 364. 
 Ebrand v. Dancer, 326. 
 Edge and Scattergood, 196. 
 Edwards and Brownsword, 259. 
 Edwards v. Countess of Warwick, 
 
 300. 340. 
 Edwards v. Freeman, 116. 
 Edwards v. Lewis, 335. 
 Edwards v. Moore, 323. 
 Edwards v. Slater, 173. 435. 
 Effingham (Lord) and Lord Ports- 
 mouth, 290. 
 Ekins and Green, 312. 
 Elliot v. Elliot, 327. 
 Ellison v. Ellison, 339. 
 Elliston and Carr, 302. 
 Elly and Bowater, 343. 
 Else v. Osborne, 132. 370. 
 Elwes and Forest, 374. 
 England and Eales, 317. 353. 
 Erissey and West, 314. 321. 
 Errington and Read, 100. 133. 
 Estofte v. Vaughan, 119. 
 Evans v. Harris, 323. 
 Evelyn v. Evelyn, 318. 
 Evelyn and Stonehouse, 332. 
 Eure v. Howard, 97. 
 Eustace and Kildare, 349. 
 Ewart and Dixon, 322. 
 Ex parte Belchier, 369. 
 Ex parte Bowes, 360. 
 Ex parte Brettell, 360. 
 Ex parte Champion, 366. 
 Ex parte Coysegame, 341. 
 Ex parte Houghton, 322. 
 Ex parte Hughes, 362. 
 Ex parte James, 363. 
 Ex parte Lacy, 362. 
 Ex parte Morgan, 360. 
 Ex parte Reynolds, 362. 
 Ex parte Sergison, 360. 
 Ex parte Tutin,359.
 
 IN THE FIRST VOLUME. 
 
 Ex parte Vernon, 355. 
 Ex parte Whitacre iu matter Sa- 
 muel Vallis, 359. 
 
 Fairfax and Bottomley, 288. 
 Farquhar and M'Queen, 321. 
 Farrand and Bosworth, 253. 
 Fausset and Whitfleld, 119. 
 Fawcet v. Lowther, 270. 
 Featherstonbaugh v. Fenwick, 335. 
 Fenhouillet and Scott, 294, 295, 296. 
 Fenton and Wells, 136. . 
 Feu wick and Featherstonbaugh, 335. 
 Fenwick v. Mitford, 133. 
 Fenwick v. Reed, 291. 
 Fermor and Ferrers, 75. 
 Fcrnyhough and Coppin, 335. 
 Ferrers v. Fermor, 75. 
 Ferrers and Nightingale, 102. 215. 
 
 218. 
 Finch v. Finch, 326. 
 Fisher v. Wigg, 125, 126. 
 Fladgate and Bullock, 302. 
 
 Fleetwood's (Sir Gerard) Case, 274. 
 
 Fletcher v. Ashburner, 298. 303. - 
 
 Fletcher and Cottington, 316. 323. 
 383. 
 
 Fletcher and Makepeace, 123, 124. 
 
 Fletcher and Tregane, 227. 
 
 Flexney and Killick, 335. 
 
 Foley and Davidson, 331. 
 
 Foley and Lingen, 318. 
 
 Forbes v. Ball, 317. 
 
 Forbes v. Moffatt, 306. 
 
 Fordyce v. Willis, 315. 
 
 Forest v. Elwes, 374. 
 
 Forrell v. Frampton, 126. 
 
 Foster and Blake, 45. 
 
 Foster and Jerdon, 356. 
 
 I : uster v. Romney, 122. 
 
 Foy v. Hynde, 152. 
 
 Frampton and Forrell, 126. 
 
 c2 
 
 Francis Throckmorton's Case, 149. 
 Franklin v. Green, 367. 
 Franklin cnrfMurless, 326. 
 Franklineand Cowper, 87. 90. 
 Eraser v. Baillie, 347. 
 Freeman and Edwards, 116. 
 Freine and Dillon, 148, 149.232. 
 French v. Baron, 373. 
 Fry and Hungry, 274. 
 Fulham v. Jones, 300. 
 Fursacre v. Robinson, 339. 
 
 Garnett and Pierson, 317. 
 Garth v. Baldwin, 269. 
 Gaskell v. Harmer, 368. 
 Geary v. Bcarcroft, 351. 
 Gee and Bradisb, 301 . 303. 
 George v. Chatosey,364. 
 George and Pye, 319. 370. 
 George and Taylor, 317. 
 Gibbons and Sheppard, 126. 
 Gibbs v. Rumsay, 333. 
 Gibson v. Rogers, 250. 318. 
 Gifford's Case, 284. 
 Gilbert and Ivy, 318. 
 Girland v. Sharp, 92. 
 Glenorchy v. Boswell, 312. 
 Glubb and Slocombe, 215. 
 Glyn and Harding, 317. 
 Godolphin v. Abingdon, 133. 271. 
 Godwin v. Wiusmore, 288. 
 Goldwin and Chambers, 373. 
 Goodcn and Bromley, 300. 
 Goodrich v. Brown, 344. 
 Goodrich and Sheddon, 334. 
 Goodright v. Cator, 168. 
 Goodright v. Mead, 224, 225. 
 Goodright v. Sales, 294. 
 Good title v. Jones, 40,297. 
 Goodtitle v. Stokes, 125. 
 Goodtitle v. Whitby, 246. 
 Goodwin v. Clark, 195.
 
 NAMES OF CASES 
 
 Goodwin v. Cutter, 316. 
 Goodwin and Hooper, 334. 3G3. 
 Goodwyn v. Lister, 355. 
 Gore v. Gore, 142, 143. 
 Gosselin v. Dodwc-U, 368. 
 Gower v. Grosveuor, 314. 
 Graut v. Mills, 320. 
 Graves and Ratcliff, 277. 
 Gray v. Gray, 326. 
 Gray and Robinson, 248. 
 Grazebrook and Downes, 363. 
 Green v. Belcher, 318. 
 Green and Dunn, 343. 
 Green v. Ekins, 312. 
 Green and Franklin, 367. 
 Green v. Smith, 300. 
 
 Green v. Stephens, 314. 
 
 Greenbank and Hearle, 280. 
 
 Greenhill and Doe, dem. Hull, 273. 
 
 Greenhill v. Greenhill, 271. 
 
 Greenwood and Nouaille, 344. 
 
 Gregory v. Gregory, 363. 
 
 Gregory v. Henderson, 244. 
 
 Greswold's Case, 131. 
 
 Griffin and Burnaby, 345. 
 
 Grosveuor and Gower, 314. 
 
 Guavas a/id Cook, 331. 
 
 Guidota. Guidot, 300. 
 
 Gwam v. Roe, 92. 156. 
 
 Gyles and Moyse, 130. 
 
 Gyles and Oliver, 229. 
 
 Haggie and Ryle, 322. 
 Halcot v. Markant, 324. 
 Hales and Brookman, 335. 
 Hales and Hithersell, 375. 
 Halfpenny's Case, 59. 
 Halifax and Roper, 178. 
 Hall and Cheney, 224. 
 Hall and Darey, 364. 
 Hall and Wheate, 175. 313. 
 Hampton v, Spencer, 316. 
 
 Hampton and Stockman, 1 19. 
 Harborough (Lord) and Sherrard, 
 
 329. 
 Harcourt and Liebman, 324. 
 Harding v. Glyn, 317. 
 Hardman v. Johnson, 336. 
 Hardy v. Reeves, 322. 
 Hare and Havergill, 227. 
 Harewood and Milner, 215. 335. 365. 
 Harland v. Trigg, 317. 
 Harman and Gaskell, 368. 
 Harris v. Barnes, 142. 
 Harris and Evans, 323. 
 Harrison v. Harrison, 366. 
 Hartleys. Hurle,348. 
 Harton v. Harton, 263. 
 Hartopp v. Lord Carbery, 197. 
 Hartwell v. Clutters, 276. 
 Harvey v. Ashley, 215. 
 Harvey v. Aston, 300. 
 Harwell v. Lucas, 145. 153. 
 Havergill v. Hare, 227. 
 Haveriugton's Case, 218. 
 Hawker v. Hawker, 258. 
 Hawkins and Wynne, 317. 
 Hawley and Thorntou, 299. 
 Hayter v. Rod, 294. 
 Hayward and Page, 154. 176. 428. 
 
 436. 
 HealyandHodle,291. 
 Hearle v. Greenbank, 280. 
 Heathe v. Heathe, 126. 
 Heatley v. Thomas, 344. 346. 
 Henderson and Gregory, 244. 
 Heneage and Doe, 128. 
 Henry v. Purcell, 244. 
 Heron i\ Heron, 324. 
 Hertford (Marquis of) and Lord 
 
 Southampton, 196. 
 Hewit v. Wright, 300. 
 Hibbart and Smith, 356. 
 Hicks antfDoe. dem. Compere, 361.
 
 IN THE FIRST VOLUME. 
 
 Mill v. Bishop of Loudon, 317.331, 
 
 332, 333. 
 Hill v. Cock, 334. 
 Hinchinbrook (Lord) and Lord 
 
 Shipbrook, 376. 
 Hinton v. Hinton, 351. 
 Hitcbins v. Hitchins, 252. 
 Hithersell v. Hales, 375. 
 Hobart and Stamford, 314. 
 Hobhouse and Jackson, 345. 
 Hockmore and Bonitborn, 374. 
 Hodges and Legard, 316. 
 Hodges and O'Herlihy, 338. 
 Hodle v. Healy, 291. 
 Hodsden v. Lloyd, 316. 
 Hodson and Benson, 154. t 
 Hoe and Piers, 104. r %^f * 
 Holland v. Hughes, 366. fr^tjU jyr 
 Holland and King, 289. w* 
 
 Holland and Rawley, 104. 142. 143. 
 Holloway and Marshall, 196. 
 Holloway v. Pollard, 118. 
 Holt v. Holt, 335. 
 Honor v. Honor, 312. 
 Hooper v. Goodwin, 334. 363. 
 Hope v. Tyrrell, 347. 
 Hopkins v. Hopkins, 329. 
 Horev. Dix, 114.241. 
 Home v. Barton, 314. 
 Horsley v. Chaloner, 369. 
 Hoskins and Woodhouse, 370. 
 Hovendon v. Lord Annesley, 354. 
 Houghton (ex parte) 322. 
 Howard and Eure, 97. 
 Howe v. Earl of Dartmouth, 366. 
 Hudson and Otway, 343. 
 Hughes (ex parte), 362. 
 Hughes and Holland, 366. 
 Hughes and Oldham, 302. 346. 
 Huish and Mores, 345. 
 Humble <mdCholmley, 127. 
 Hummerston's Case, 98. 
 
 c3 
 
 Hungerford and Countess of Brislol, 
 
 331. 
 Hungry v. Fry, 274. 
 Hunt v. Baker, 269, 
 Hunt v. Coles, 275. 
 Huntingdon v. Mildmay, 119. 
 Hurle and Hartley, 348. 
 Hussey's (Sir John) Case, 64. 
 Hussey and Bingham, 224. 
 Hyham and Balsh, 375. 
 Hylton v. Biscoe, 117. 
 Hynde andFoy, 152. 
 
 Jackson and Cooth, 323. 
 Jackson v. Hobhouse, 345. 
 Jackson v.Jackson, 366. 
 James (ex parte), 363. 
 James v. Dean, 335. 
 Jasper and the King, 148. 
 Jekyll and Williams, 89. 
 Jenkins v. Young, 93. 
 Jerdou v. Foster, 356. 
 Jermin cwrfWhitwick, 300. 
 Jervoise v. Duke of Northumber- 
 land, 313. 
 Jevon v. Bush, 364. 
 Jevon and Noel, 351. 
 Inglis andCasborne, 351. 
 Inskipp and Braybrooke, 359, 360. 
 Inwood v. Twine, 365. 
 Johnson v. Cotton, 216. 
 Johnson and Hardman, 336. 
 Johnson and Newman, 317. 
 
 Jones v. 348. 
 
 Jones and Fulham, 300. 
 Jones and Goodtitle, 40. 297. 
 Jones v. Langton, 311. 
 Jones v. Lewis, 369. 
 Jones v. Morgan, 270. 
 Jones v. Morley, 225, 226. 
 Jones v. Nabbs, 317. 
 Jones v. Rensbie, 270.
 
 NAMES OF CASES 
 
 Jones v. Say and Sele, 248, 249. 
 Ischaruu. Morris, 291. 
 Iscd's Case, 75. 
 Ivy V.Gilbert, 318. 
 
 Keble v. Thompson, 376. 
 Kcech v. Sandford, 336. 
 Kemp and Whateley, 312. 
 Kennedy and Burden, 272. 
 Kent (Earl of) v. Steward, 145. 
 Kenwortliy v. Bate, 122. 
 Keymiss and Thomas, 306. 308. 
 Kildarc v. Eustace, 349. 
 Killick v. Elexney, 335. 
 Kinder v. Miller, 324. 
 King v. Ballet, 276. 
 King v. Boys, 59. 88. 
 King and Davis, 317. 
 King v. Dennison, 333. 
 King and Holland, 289. 
 King (The) v. Jasper, 148. 
 King v. Marissal, 272. 
 King v. Marquis of Stafford, 123. 
 King (The) v. Smith, 297. 
 Kingdom v. Bridges, 326. 
 Kirk v. Paulin, 348. 
 Kirk v. Webb, 316. 323, 324. 
 Kirkham v. Smith, 343. 
 Kirkman, v. Miles, 299. 
 Knight v. Plimouth, 369. 
 Knowles and Wilmot, 228. 
 
 Lacy (ex parte) 362. 
 
 Lake v. Thomas, 291. 
 
 Lambu. Archer, 137. 
 
 Lamplugh v. Lamplugh, 107. 319. 
 
 325. 327. 
 Lamplugh and Shortridge, 100, 101. 
 Lane v. Dighton, 316. 323, 324. 
 Lane and Durnford, 215. 
 Lane and Pearson, 302. 
 Langley and Bioughton, 97. 
 Langtonv. Astrey, 319. 
 
 Langton and Jones, 311. 
 
 Langston v. Ollivant, 367. 
 
 Lawrence and Whichcote, 362. 
 
 Lea and Doe, 247. 
 
 Lea and Vincent, 195. 
 
 Leak and Randall, 242. 
 
 Leaper v. Wroth, 162. 
 
 Lechmere v. Carlisle, 300. 
 
 Lee v. Brown, 367. 
 
 Lee and Marsh, 297. 
 
 Lee v. Muggeridgc, 347. 
 
 Lee v. Prideaux, 348. 
 
 Leeds (Duke of) v. Munday, 360. 
 
 Legard and Digby, 332. 
 
 Legardv. Hodges, 316. 
 
 Legate v. Sewell, 313. 343. 
 
 Leigh v. Barry, 376. 
 
 Leigh v. Brace, 123. 
 
 Leigh and Young, 371. 
 
 Le Maitre v. Bannister, 317. 
 
 Leneh v. Lench, 325. 
 
 Le Neve v. Le Neve, 320. 
 
 Le Neve v. Morris, 336. 
 
 Leonardo. Earl of Sussex, 312. 
 
 Lesley's Case, 338. 
 
 Lcthieulierv. Tracy, 348. 
 
 Lenson and Wilkes, 104. 
 
 Lewing's Case, 214. 
 
 Lewis and Edwards, 335. 
 
 Lewis and Jones, 369. 
 
 Liebman v. Harcourt, 324. 
 
 Lincoln College Case, 120. 
 
 Lincoln and Duke of Newcastle, 314. 
 
 Lingen v. Foley, 318. 
 
 Liugen v. Sowray, 300, 301. 
 
 Lister and Goodwin, 355. 
 
 Lister v. Lister, 3G3. 
 
 Littleton and Wingfield, 99. 115. 
 
 Llewcllinv. Mackworth, 280. 282. 
 
 Lloyd v. Carew, 145. 
 
 Lloyd and Hodsden, 316. 
 
 Lloyd i<. Read, 327.
 
 IN THE FIUST VOLUME. 
 
 Lloyd v. Spillet, 322.334. 
 
 Lock and Tvristien, 314. 
 
 Lorn be and Clifton, 317. 
 
 London (City of) v. Garway, 331. 
 
 London (Bishop of) and Hill, 317. 
 331, 332, 333. 
 
 Long v. Buckeridge, 92. 157. 
 
 Long and Reynell, 119. 
 
 Lord Annesley and Hovendon. 354. 
 
 Lord Bateman and Stephen, 310. 
 
 Lord Cadogan a?id Duke of Rich- 
 mond, 314. 
 
 Lord Carbery and Hartopp, 1 97. 
 
 Lord Clinton and Marquis ofChol- 
 niondeley, 133. 281. 283. 
 
 Lord Dacre's Case, 8. 
 
 Lord Dudley and Attorney-general, 
 363. 
 
 Lord Effingham and Lord Ports- 
 mouth, 290. 
 
 Lord Harborough a?irfSherrard,329. 
 
 Lord Hinehinbrook and Lord Ship- 
 brook, 376. 
 
 Lord Portsmouth v. Lord Effingham, 
 290. 
 
 Lord Shipbrook v. Lord Hinehin- 
 brook, 376. 
 
 Lord Southampton v. Marquis of 
 Hertford, 196. 314. 
 
 Lord Windsor and Earl of Pomfret, 
 291. 
 
 Lower andWcale, 138. 
 
 Lowtherv. Carlton, 321. 
 
 Lowther and Fawcet, 270. 
 
 Lucas and Harwell, 145. 153. 
 
 Lucas v. Lucas, 130. 
 
 Lusher v. Banbong, 216. 
 
 Lynch v. Clemence, 341. 
 
 Lyster v. Dolland, 272. 275. 
 
 Mackaril and Cordwell , 322. 
 Mackreth v. Symons, 320. 
 
 c4 
 
 Mackworth and L!ewellin,280. 282. 
 
 M'Queen v. Farquhar, 321. 
 
 Maddin and Pclly, 105. 
 
 Magwood and Attorney-general, 
 319. 
 
 Makepeace v. Fletcher, 123, 124. 
 
 Mandeville's Case, 141. 
 
 Marissal and King, 272. 
 
 Manning and Doe, dem. Otley, 320. 
 
 Manory and Southcoat, 228, 229. 
 
 Mansell v. Mansell, 370. 
 
 Mansfield's Case, 214. 
 
 Mansfield and Dugard, 247. 
 
 Manxell and Bassctt and Morgan, 
 30. 
 
 Markant and Halcot, 324. 
 
 Marlow v. Smith, 3 19. 360. 
 
 Marquis of Cholmondcley v. Lord 
 Clinton, 133. 281. 283. 
 
 Marquis of Hertford and Lord South- 
 ampton, 196. 314. 
 
 Marquis of Stafford and King, 123. 
 
 Marquis of Townsend v. Bishop of 
 
 Norwich, 330. 
 Marquis of Winchester's Case. 279. 
 Marriott and Taster, 335. 
 
 Marryatt v. Townley, 314. 
 Marsh v. Lee, 297. 
 Marshall and Blue, 364. 
 Marshall v. Holloway, 196. 
 Martin and Barron, 291. 
 Martin u.Strachan, 102. 231. 
 Martin and Willis, 42. 
 Mary Portington's Case, 127. 151. 
 Mason awe? Maugham, 334. 
 Massey v. Sherman, 317. 
 Masters and Rashlcy, 300, 
 Maugham v. Mason, 334. 
 Maundrellv. Maundrell, 113. 297. 
 Maynwaiing v. Maynwaring, 368. 
 Mead and Beauclcrk, 300. 
 Mead and Goodright, 224, 225.
 
 NAMES OF CASES 
 
 Melligan andNowlan, 317. 
 Mellish and Coningham, 333. 
 McllishflHfZSturt, 340. 
 Michel and Pale, 271. 
 Mickleston v. Brown, 325. 
 Middleton and Cornbury, 271. 
 Middleton v. Spicer, 339. 
 Mildway's Case, 127. 
 Mildway and Huntingdon, 119. 
 Mildway v. Standisli, 193. 
 Miles and Kirkman, 299. 
 Miller and Abney, 335. 
 Miller and Kinder, 324. 
 Miller aad Sidney, 331. 
 Mills v. Banks, 318. 
 Mills and Grant, 320. 
 Milnerw. Hare wood, 215. 335. 365. 
 Mitford and Fcnwick, 133. 
 Mitford and Pybus, 138. 
 Moffat and Forbes, 306. 
 Moggridge v. Thackwell, 349. 
 Mondcy v. Mondey, 300. 
 Monk and Peacock, 344. 
 Monnoux and Appowel, 120. 
 Monlague and Bernard, 365. 368. 
 
 Montesquieu v. Sandys, 363. 
 
 Moody and Cunningham, 300. 346. 
 
 Moody and Doe, dem. Lord Dormer, 
 40. 
 
 Moody v. Moody, 224, 225. 
 
 Moody v. Walters, 370. 
 
 Moorcroft v. Dowding, 316. 
 
 Moore's (Sir William) Case, 243. 
 
 Moore and Edwards, 323. 
 
 Mores v. Huish, 345. 
 
 Morgan (ex parte), 360. 
 
 Morgan and Jones, 270. 
 
 Morgan and Powel, 306. 308. 
 
 Morley and Jones, 225, 226. 
 
 Morley v. Morley, 369. 
 
 Morrctt v. Paske, 364. 
 
 Morris and Jschani, 291. 
 
 Morris v. Le Neve, 336. 
 
 Morris and Venables, 261. 
 
 Moselcy v. Moseley, 368. 
 
 Moyse v. Gyles, 130. 
 
 Muggeridge and Lee, 347. 
 
 Munday and the Duke of Leeds, 360. 
 
 Murless v. Franklin, 326. 
 
 Mutton's Case, 136. *. -r 
 
 .' fa 4, iuucCae.Sj. >"• • 
 
 Nab v. Nab, 315. 
 
 Nabbs and Jones, 317. 
 
 Nandick v. Wilks, 311. 
 
 Nash v. Smith 334. 
 
 Nevel v. Nevel, 123, 124. 
 
 Nevill v. Saunders, 244. 
 
 Newcastle (Duke of) v. Lincoln, 314. 
 
 Newdigate and Stead, 301. 
 
 Newman v. Johnson, 317. 
 
 Newton v. Preston, 323. 
 
 Nicholls and Doe, dem. Player, 244, 
 
 245. 
 Nicollsv. Sheffield, 128. 
 Nightingale v. Ferrers, 101. 215. 218. 
 Noel v. Jevon, 351. 
 Norfolk's (Duke of) Case, 198. 
 Norfolk (Duke of) v. Browne, 335. 
 North v. Champernoon, 343. 
 Northumberland (Duke of) a««Jer- 
 
 voise, 313. 
 Norwich (Bishop of) and Marquis 
 
 of Townshend, 330. 
 Nouaille v. Greenwood, 344. 
 Nowlab v. Melligan, 317. 
 
 O'Harav. 0'Neil,323. 
 O'Herlihy v. Hodges, 338. 
 Oldham v. Hughes 302. 346. 
 Olivers. Gyles, 229. 
 Ollivant and Langston, 367. 
 Oneby and Price, 355. 
 O'Neil and O' Hara, 323. 
 Osborne and Else, 132. 370 
 Osborne and Roll, 121. 
 Osmant\ Sheafe, 137.
 
 IN THE FIRST VOLUME. 
 
 Otwayr. Hudson, 343. 
 Owen v. Williams, 335. 
 Oxendcn and Compton, 305. 307. 
 308. 
 
 Packer and Wyndham, 341. 
 Page v. Hay ward, 154. 176.428.436. 
 Page and TuSaeW, 271. 
 Paget's Case, 125. 
 Pale v. Michell, 271. 
 Palmer's Case, 274. 
 Palmer and Ashby, 303. 
 Palmer and Wills, 132. 
 Palmer v. Young, 336. 
 Papillon v. Voice, 312. 
 Parker v. Brooke, 321. 
 Parsons v. Baker, 317. 
 Partington and Andrews, 367. 
 Partridge and Wheldale, 299. 
 Paske and Morrett, 364. 
 Paulin and Kirk, 348. 
 Pawlett v. Attorney-general, 267. 
 352, 353. 
 
 Peachy v. Somerset, 353. 
 
 Peacock v. Monk, 344. 
 
 Peacock and Penne, 173. 
 
 Peake v. Penlington, 313. 
 
 Pearce and Petfield, 114. 
 
 Pearson v. Brereton, 346. 
 
 Pearson v. Lane, 302. 
 
 Pearson and Wright, 251. 270. 
 
 Pelham and Cloudsley, 317. 
 
 Pells v. Browne, 145. 
 
 Pelly v. Maddin, 105. 
 
 Pembroke and Baden, 300. 
 
 Penlington and Peake, 313. 
 
 Penne v. Peacock, 173. 
 
 Penson and Plunkett, 275, 276. 
 
 Perkins and Biscoe, 370. 
 
 Perrat and Wilkin's, 104. 
 
 Perrott's Case, 148. 
 
 Petfield v. Pearce, 114. 
 
 Pett and Robinson, 373. 
 Peyton v. Ayliffe, 289. 
 Philips v. Bridges, 344. 
 Phillips and Clarke, 173. 
 Pickerell and Aggas, 290. 
 Pickering v. Vowles, 335. 
 Pierce and Basket, 284. 
 Piers v. Hoe, 104. 
 Pierson v. Garnett, 317. 
 Pierson v. Shore, 335. 
 Plimouth and Knight, 369. 
 Plunket v. Penson, 275, 276. 
 
 Pocock v. Reddington, 366. 
 
 Polhill and Ware, 194. 
 
 Pollard v. Downes, 340. 
 
 Pollard and Holloway, 118. 
 
 Pomfret (Earl of) v. Lord Windsor, 
 291. 
 
 Poole v. Poole, 270. 
 
 Pope «?jdfBevant, 351. 
 
 Popham and Roe, 101. 107. 218. 
 
 PophamanrfSpry, 134. 
 
 Porter's Case, 62. 
 
 Porter and Donisthorpe, 306. 
 
 Portington's (Mary) case, 127. 151. 
 
 Portsmouth (Lord) v. Lord Effing- 
 ham, 290. 
 
 Postlethwaite and Reeks, 291. 
 
 Pott and Doe, 66. 
 
 Powel v. Price, 321. 
 
 Powel v. Morgan, 306. 308. 
 
 Preston and Newton, 323. 
 
 Price v. Byrn, 363. 
 
 Price v. Oneby, 355. 
 
 Price and Powel, 321. 
 
 Prideaux and Lee, 348. 
 
 Proby and Bastard, 312. 
 
 Pung and Ray, 155. 
 
 Purcell and Henry, 244. 
 
 Pybusv. Mitford, 138. 
 
 Pybus v. Smith, 244. 345. 
 
 Pyet>. George, 319. 370.
 
 NAMES OF CASES 
 
 Randall and Burkctt, 341. 
 
 Randall v. Leak, 242. 
 
 Randall v. Randall, 339. 
 
 Randall v. Russell, 336. 
 
 Rashley v. Masters, 300. 
 
 Ratcliffw. Graves, 277. 
 
 Raven and Swanton, 216. 
 
 Raw v. Chichester, 335. 
 
 Rawley v. Holland, 104. 142, 143. 
 
 Rawlins and Rex, 274. 
 
 Ray v. Pung, 155. 
 
 Read v. Errington, 100. 133. 
 
 Read and Lloyd, 327. 
 
 Read v. Snell, 312. 
 
 Reddington and Pocock, 3G6. 
 
 Reed and Fenwick, 291. 
 
 Reed v. Tucker, 336. 
 
 Reeks v. Postlethvvaite, 291. 
 
 Reeve v. Attorney-general, 353. 
 
 Reeve and Tregmiel, 135. 
 
 Reeves and Hardy, 322, 
 
 Reignold and Wood, 145. 
 
 Ren (lessee of Hall) v. Buckley, 172. 
 
 Rensbie and Jones, 270. 
 
 Rex v. Rawlins, 274. 
 
 Reynell v. Long, 119. 
 
 Reynolds (Ex parte), 362. 
 
 Richards v. Chambers, 347. 
 
 Richardson v. Chapman, 317. 
 
 Richmond (Duke of) v. Lord Cado- 
 
 gan, 314. 
 Rider v. Bickerston, 369. 
 Ridgard and Bonny, 290. 
 Ridley's Case, 37. 
 Rigden v. Vallier, 125. 
 Right v. Smith, 97. 
 Roberts v. Dixwcll, 244. 313. 
 Roberts v. Spiccr, 348. 
 Robinson and Brandon, 270. 345. 
 Robinson v. Cuming, 343. 
 Robinson and Fursacre, 339. 
 Robinson v. Gray, 248. 
 
 Robinson v. Pett, 373. 
 
 Robinson v. Tong, 276. 
 
 RodanrZHaytcr, 294. 
 
 Roe v. Baldwere, 231 . 
 
 Roc aju/Gwam, 92. 156. 
 
 Roe v. Popham, 101. 107. 218. 
 
 Roe v. Tranmer, 136, 137. 
 
 Rogers and Gibson, 250. 318. 
 
 Roll v. Osborne, 121 . 
 
 Romney and Foster, 122. 
 
 Rook v. Warth, 365. 
 
 Rooke v. Staples, 38. 
 
 Roper v. Halifax, 178. 
 
 Rose v. Bartlett, 273. 
 
 Rowe v. Teed, 323. 
 
 Rumsay and Gibbs, 333. 
 
 Russell «?u/Randall, 336. 
 
 Rutland's (Countess of) case, 220. 
 
 226. 
 Ryall v. Ryall, 316, 323, 324. 
 Ryle v. Haggie, 322. 
 
 Sales and Goodright, 294. 
 
 Salisbury v. Bagot, 284. 
 
 Salvin v. Thornton, 343. 
 
 Sambach v. Dalton, 263. 
 
 Same's case, 61. 
 
 Samme's case, 91. 135, 136. 
 
 Samyne and Tudor, 271. 
 
 Sanders v. Bournford, 305. 
 
 Sanderson v. Walker, 363. 
 
 Sandford «>irfKeech, 336. 
 
 Sands and Attorney-general, 276. 
 
 293. 
 Sandys' case, 289. 
 Sandys' and Montesquieu, 363. 
 Sarrell and Coleman, 339. 
 Sarsfield ane? Shelly, 124. 
 Savage and Adams, 104. 142, 143. 
 Savillev. Blackett, 173. 
 Saville and Dixon, 288: 
 Saunders v. Dehew, 319.
 
 IN THE FIRST VOLUME. 
 
 Saunders and Earlom, 302. 3G4. 
 
 Sauuders and Neville, 244. 
 
 Say and Sele and Jones, 248, 249. 
 
 Sayer and Allen, 365. 
 
 Sayers and Wells, 348. 
 
 Scarfe and Casborne, 279. 
 
 Scattergood v. Edge, 196. 
 
 Scho\cy and Scott, 272. 
 
 Scot's case, 120. 
 
 Scott v. Fenhouillet, 294, 295, 296. 
 
 Scott v. Scholey, 272. 
 
 Scroope v. Scroope, 327. 
 
 Scudamore and Crossing, 118. 
 
 Senbouse v. Earle, 321. 
 
 Sergison (Ex parte), 360. 
 
 Sewell and Legate, 313. 343. 
 
 Seymor's Case, 144. 
 
 Sbapland v. Smith, 244. 249. 343. 
 
 Sbard v. Sbard, 299. 
 
 Sharp and Girland, 92. 
 
 Shaw v. Weigh, 270. 
 
 Sheafe and Osinan, 137. 
 
 Sheddonv. Goodrich, 334. 
 
 Sheffield and Nicholls, 128. 
 
 Shelly v. Sarsfield, 124. 
 
 Sheppard v. Gibbons, 126. 
 
 Sherman and Massey, 317. 
 
 Sherrard v. Lord Harborough, 329. 
 
 Sherrard and Stapleton, 284. 
 
 Shipbrook (Lord) v. Lord Hinchin- 
 
 brook, 376. 
 Shore and Pierson, 335. 
 Shorrall and Willis, 175. 284. 
 Short v. Wood, 372. 
 Shortridge v. Lamplugh, 100, 101. 
 Shrapnel v. Vernon, 279. 
 Sidney v. Miller, 331. 
 Silvester v. Wilson, 244. 249. 
 Simpson and Doe, dem. White, 247. 
 
 249. 
 Sir George Colebrook's case, 363. 
 Sir Charles Cox's case, 276. 
 
 Sir Gerard Fleetwood's case, 274. 
 
 Sir John Hussey's case, 64. 
 
 Sir William Moore's case, 243. 
 
 Sir Butler Weutworth's case, 214. 
 
 Skett v. Whitrnore, 323. 
 
 Skinner and Amhurst, 279. 
 
 Slater and Edwards, 173. 435. 
 
 Slocombe v. Glubb, 215. 
 
 Smith and Bovey, 321. 
 
 Smith v. Clay, 280. 
 
 Smith and Green, 300. 
 
 Smith v. Hibbart, 356. 
 
 Smith and the King, 297. 
 
 Smith fliuZKirkham, 343. 
 
 Smith and Marlow, 319. 360. 
 
 Smith and Nash, 334. 
 
 Smith and Pybus, 244. 345. 
 
 Smith and Right, 97. 
 
 Smith and Sbapland, 244. 249. 343. 
 
 Smith v. Tyndal, 121. 
 
 Smith and Wagstaff, 344. 
 
 Snagg's case, 350. 
 
 Snape v. Turton, 173. 
 
 Snell and Read, 312. 
 
 Sneyd v. Sneyd, 119. 
 
 Snow and Eare, 218. 
 
 Snow and Waker, 102. 
 
 Sockett v. Wray, 346. 
 
 Somerset's (Earl of) case, 278. 
 
 Somerset and Peachy, 353. 
 
 Souch and Witchcot, 368. 
 
 Souley v. Clockmaker's Company, 
 
 350. 
 Southampton (Lord) v. Marquis of 
 
 Hertford, 196. 314. 
 Southcoat v. Manory, 228, 229. 
 Southouse v. Bate, 333. 
 Sowray and Lingeu, 300, 301. 
 Speed ami Davies, 138, 139, 140. 
 Spencer anrfBagshaw, 244.249. 254. 
 
 258, 259. 312. 
 Spencer and Hampton, 316.
 
 NAMES OF CASKS 
 
 Spicer and Middleton, 339. 
 Spicer and Roberts, 348. 
 Spillett and Lloyd, 322. 334. 
 Sprangc v. Bernard, 317. 
 Spring v. Cfesar, 145. 
 Spry v. Popbam, 134. 
 Squire v. Compton, 293. 
 Stables and Blackburn, 313. 
 Stafford (Marquis of) and King, 
 
 123. 
 Stamford and Best, 293. 
 Stamford v. Hobart, 314. 
 Standisb and Mildmay, 193. 
 Stanleys. Stanley, 128.313. 329. 
 Stapilton v. Stapilton, 221. 
 Staples and Doe, 341. 
 Staples and Rooke, 38. 
 Stapleton v. Sberrard, 284. 
 Starkey v, Brookes, 331. 
 Stead v. Newdigate, 301. 
 Steele and Wray, 322. 
 Steere and Toulmin, 306. 
 Stephen v. Lord Bateman, 310. 
 Stephens anrfGreeu, 314. 
 Steward and Earl of Kent, 145. 
 Steward and Wilkes, 367. 
 Stileman v. Ashdown, 327. 
 Stockman v. Hampton, 119. 
 Stokes and Goodtitle, 125. 
 Stonehouse v. Evelyn, 332. 
 Stracban and Martin, 102. 231. 
 Stratbmore (Earl of) and Davis, 320. 
 Stratton v. Best, 125. 136. 
 Streatfield v. Streatfield, 311. 
 Sturt v. Mellisb, 340. 
 Surgiss v. Crop, 344. 
 Sussex (Earl of) and Leonard, 312. 
 Swantonv. Raven, 216. 
 Sweetapplc v. Bindon, 300. 
 Swinnock v. Crisp, 367. 
 Symance v. Tatton, 370. 
 Symmons and Mackretb, 320. 
 
 Symons and Buckler, IIS. 
 Synison v. Turner, 244. 
 
 Talbot and the Duke of Chandos, 
 305. 
 
 Taufield and Warmstrey, 271. 
 
 Tarrant's case, 127. 
 
 Taster v. Marriott, 335. 
 
 Tatton and Symance, 370. 
 
 Taylor v. Alston, 325. 
 
 Taylor and Austin, 270. 
 
 Taylor v. George, 317. 
 
 Taylor v. Taylor, 326. 
 
 Teed and R owe, 323. 
 
 Terry v. Terry, 365. 
 
 Thackwell and Moggridge, 349. 
 
 The Abbot of Bury v. Bokenham, 
 58. 
 
 The Attorney-general v. Brooke, 
 319. 
 
 The Attorney-general v. Buller, 
 360. 
 
 The Attorney-general v. Crofts, 278- 
 
 The Attorney-general v. Lord Dud- 
 ley, 363. 
 
 The Attorney-general v. Magwood, 
 319. 
 
 The Attorney-general and Pawlett, 
 267. 352, 353. 
 
 The Attorney-general and Reeve, 
 353. 
 
 The Attorney-general v. Sands, 276. 
 
 The Attorney-general v. Vigor, 360- 
 
 The Attorney-general v. Wansey, 
 334. 
 
 The Attorney-general v. Whorwood, 
 55. 
 
 The Bishop of London and Hill, 
 317. 331, 332, 333. 
 
 The Bishop of Norwich and Mar- 
 quis of Townshend, 330. 
 
 The City of London v. Garway, 331.
 
 IN THE FISRT VOLUME. 
 
 The Clockmakcr's Company and 
 
 Souley, 350. 
 The Countess of Bristol v. Hunger- 
 ford, 331. 
 The Countess of Rutland's case, 
 
 220. 226. 
 The Countess of Warwick and Ed- 
 wards, 300. 340. 
 The Duke of Chandos v. Talbot, 305. 
 The Duke of Leeds v. Munday, 306. 
 The Duke of Newcastle v. Lincoln, 
 
 314. 
 The Duke of Norfolk's case, 198. 
 The Duke of Norfolk v. Browne, 
 
 335. 
 The Duke of Northumberland and 
 
 Jervoise, 313. 
 The Duke of Richmond v. Lord Ca- 
 
 dogan, 314. 
 The Earl of Bath's case, 253. 
 The Earl of Bedford's case, 133. 
 The Earl of Dartmouth and Howe, 
 
 366. 
 The Earl of Kent v. Steward, 145. 
 The Earl of Pomfret v. Lord Wind- 
 sor, 291. 
 The Earl of Strathmore and Davis, 
 
 320. 
 The Earl of Sussex and Leonard, 
 
 312. 
 The King v. De la Motte, 277. 
 The King v. Jasper, 148. 
 The King v. Smith, 297. 
 The Marquis of Cholmondeley v. 
 
 Lord Clinton, 133. 281. 283. 
 The Marquis of Hertford and Lord 
 
 Southampton, 196. 314. 
 The Marquis of Townshend ?\ Bishop 
 
 of Norwich, 330. 
 The Marquis of Winchester's case, 
 
 279. 
 Thomas and Heatley, 344. 346. 
 
 Thomas v. Keymiss, 306. 30S. 
 Thomas and Lake, 291. 
 Thompson and Keble, 376. 
 Thornton v. Hawley, 299. 
 Thornton and Salvin, 343. 
 Throckmorton's (Francis) case, 149. 
 Throckmorton and Tilsey, 367. 
 Throgmorton's case, 88. 
 Thurston and Tucker, 267. 279. 
 Thynnev. Carey, 284. 
 Tiffin v. Tiffin, 294. 
 Tilsey v. Throckmorton, 367. 
 Tippius v. Cosins, 92. 132. 
 Tong and Robinson, 276. 
 Toulmin v. Steere, 306. 
 Townley and Marryatt, 314. 
 
 Townsend's (Amy) case, 207. 
 
 Townshend (Marquis of) v. Bishop 
 of Norwich, 330. 
 
 Townshend v. Townshend, 290. 
 
 Tracy and Lethieulier, 348. 
 
 Trafford v. Ashton, 318. 
 
 Trafford v. Boehm, 367. 
 
 Tranmer and Roe, 136, 137. 
 
 Trecothick and Coles, 363. 
 
 Tregame v. Fletcher, 227. 
 
 Tregraiel v. Reeve, 135. 
 
 Trelawney v. Booth, 300. 
 
 Trevithin and Croker, 127. 
 
 Trevor v. Trevor, 116. 311. 
 
 Trigg and Harland, 317. 
 
 Trodd v. Downes, 246. 
 
 Tucker and Reed, 336. 
 
 Tucker v. Thurstan, 267. 279. 
 
 Tuckfield v. Buller, 356. 
 
 Tudor v. Samyne, 271. 
 
 Tuffnell v.Page, 271. 
 
 Tullitw.Tullit,365. 
 
 Turner and Symson, 244. 
 
 Turton and Snape, 173. 
 
 Tutin (Ex parte) 359. 
 
 Twig and Abraham, 123.
 
 NAMES OF CASES 
 
 Twine and Inwood, 365. 
 Twisden v. Lock, 314. 
 Tyndal and Smith, 121. 
 Tyrrel's case, 263. 
 Tyrrel v. Hope, 347. 
 
 Vallier and Rigden, 125. 
 Vallis (Ex parte Whitacre, in mat- 
 ter of), 359. 
 Vaughan and Estofte, 119. 
 Vavisor's case, 227. 
 Venablesv. Morris, 261. 
 Vernon's case, 242. 
 Vernon (Ex parte), 355. 
 Vernon and Shrapnel, 279. 
 Vernon v. Vernon, 317. 365. 
 Vigor and Attorney-general, 360. 
 Villiers and Wegg. 232. 234. 236. 
 Vincents. Lea, 195. 
 Voice and Papillon, 312. 
 Vovvles and Pickering, 335. 
 
 Wade and Beckford, 280. 
 Wagstaffc. Smith, 344. 
 Wagstaffv. Wagstaff,271. 
 Waker v. Snow, 102. 
 Walker and Campbell, 362. 
 Walker v. Denne, 298, 299. 
 Walker and Sanderson, 363- 
 Wall v. Bright, 361. 
 Walter de Chirton's case, 277. 
 Walters and Moody, 370. 
 Walthall and Boydell, 98. 
 Wansey and Attorney-general, 334. 
 Ware v. Polhill, 194. 
 Warebam v. Brown, 317. 
 Warmstrcy v. Tanfield, 271. 
 Warr v. Warr, 367. 
 Warter v. Warter, 255. 
 Warth and Rook, 365. 
 Warwick (Countess of) and Ed- 
 wards, 300. 340. 
 
 Warwick v. Warwick, 321. 
 Waskbournc, v. Downcs, 196. 
 Walerhouse and Bnller, 164. 
 Walts v. Ball, 279. 
 Weale and Lower, 138. 
 Webb and Kirk, 316. 323, 324. 
 Wegg v. Villers, 232. 234, 236. 
 Weigh and Shaw, 270. 
 Wellington v. Wellington, 259. 
 Wells v. Fenton, 136. 
 Wells v. Sayers, 348. 
 Wentworth's (Sir Butler) case, 214. 
 West v. Erissey, 314. 321. 
 Westcott and Beard, 197. 
 Whateley v. Kemp, 312. 
 Wheate and Burgess, 289. 353. 
 Wheate v. Hall, 175, 313. 
 Wheldale v. Partridge, 299. 
 Whelpdale v. Cookson, 362. 
 Whetstone v. Bury, 348. 
 Whitacre (Ex parte, in matter 
 
 Samuel Vallis), 359. 
 Whitaker v. Whitaker, 300. 
 Whitby and Goodtitle, 246. 
 Whitchcote v. Lawrence, 362. 
 Whitchurch v. Whitchurch, 293. 
 White v. Carter, 312. 
 White and Whiting, 291. 
 Whitfield v. Fausset, 119. 
 Whiting v. White, 291. 
 Whitmore and Skett, 323. 
 Whitwick v. Jermin, 300. 
 Whorwood and Attorney-general, 55. 
 Widdowson v. Duck, 366. 
 Wigg and Fisher, 125. 
 Wiggv. Wigg, 319. 
 Wilkes v. Leuson, 104. 
 Wilkes v. Steward, 367. 
 Wilkins v. Perrat, 104. 
 WilksandNandick. 311. 
 Willan and Doe, dem. Tomkyns, 
 
 254.
 
 IN THE FIRST VOLUME. 
 
 Williams v. Coade, 34. 
 
 Williams v. Jekyll, 89. 
 
 Williams and Owen, 335. 
 
 Williams and Wray, 293. 
 
 Williams and Wynn, 297. 
 
 Willis and Chester, 306. 308. 
 
 Willis and Fordyce, 315. 
 
 Willis v. Martin, 42. 
 
 Willis v. Shorrall, 175. 284. 
 
 Willis v. Willis, 323. 
 
 Willoughby v. Willoughby, 297. 
 
 Wills v. Palmer, 132. 
 
 Wilmot v. Knowles, 228. 
 
 Wilson and Silvester, 244. 249. 
 
 Winchester's (Marquis of) case, 
 279. 
 
 Windsor (Lord) and Earl of Pom- 
 fret, 291. 
 
 Wingfield and Duncorabe, 207. 
 
 Wingfield v. Littleton, 99. 115. 
 
 Winsmore and Godwin, 288. 
 
 Witchcot v. Souch, 368. 
 
 Witter v. Witter, 365. 
 
 Wolsey and Armstrong, 100. 
 
 Wolstan v. Aston, 284. 
 
 Wood v. Reignold, 145. 
 Wood and Short, 372. 
 Woodhouse v. Hoskins, 370. 
 Woodliff v. Drury, 103. 148. 
 Woods v. Downes, 363. 
 Wray v. Sockett, 346. 
 Wray v. Steele, 322. 
 Wray v. Williams, 293. 
 Wright and Hewit, 300. 
 Wright v. Pearson, 251. 270. 
 Wright v. Wright, 300. 334. 
 Wroth and Leaper, 162. 
 Wyndham and Packer, 341. 
 Wynn v. Williams, 297. 
 Wynne v. Hawkins, 317. 
 Wynston and Bould, 146. 
 
 Yelvertonv. Yelverton, 107. 
 Young v. Dymock, 93. 
 Young and Jenkins, 93. 
 Young v. Leigh, 371. 
 Young and Palmer, 36. 
 
 Zouche's case, 25.
 
 ESSAY 
 
 ON 
 
 USES AND TRUSTS 
 
 CHAP. I. 
 
 Of Uses and Trusts before the Statute of 
 27 Hen. 8. c. 10. 
 
 1. Previously to the statute 27th Hen. 8. c. Sect. i. 
 10. (usually called the statute of uses), the Definition of 
 
 . the use. 
 
 use was an equitable, or beneficial, interest, 
 distinct from the legal property in the land. 
 Upon principles, established in the courts of 
 equity, the use itself was alienable by the 
 cestuique use, and the statute of I Rich. 3. 
 enabled him to convey the possession, with- 
 out the concurrence of his trustee : and ulti- 
 mately, the statute 27 Hen. 8. c. 10. con- 
 verted the equitable, or beneficial, interest of 
 the cestuique use, into a legal estate. I shall 
 endeavour in this chapter to trace the origin, 
 progress, and learning of the use in its fidu- 
 ciary state. 
 
 VOL. I. B
 
 2 Uses and Trusts before [chap. i. 
 
 Sect i. The statute 1 Rich. 3. having described 
 
 Definition of the fiduciary interest, which it was meant to 
 
 the use. ^ 
 
 affect, by the single word, use, it became 
 necessary to ascertain, with precision, the 
 meaning of the word. An equitable interest, 
 not a use within the statute, may with pro- 
 priety be called a trust. 
 
 It will be therefore proper to define the 
 use ; and with reference to the statute of 
 1 Rich. 3. it is important to ascertain the dis- 
 tinction between uses and trusts. 
 
 The use was said to be, " a trust or cou- 
 " fidence, which is not issuing out of land, 
 " but as a thing collateral, annexed in privity 
 "to the estate, and to the person, touching 
 " the land ; scil. that cestuique use shall take 
 " the profits, and that the terretenant shall 
 " make estates according to his directions 3 ." 
 
 The use consisted b of three parts ; that 
 the feoffee would suffer the feoffor to take the 
 profits : that the feoffee upon request of the 
 feofbr, or notice of his will, would execute 
 the estates to the feoffor, or his heirs or any 
 other by his direction : that if the feoffee had 
 been disseised, and so the feoffor disturbed, 
 
 a 1 Co. 121. a. Co. Litt. b Bacon, Uses, 10. 
 
 272. b.
 
 chap, i.] Stat. 27 H. 8. c. 10. 3 
 
 the feoffee would re-enter, or bring an ac- Sect - l 
 tion to recontinue the possession . Definition of 
 
 1 the use. 
 
 II. Sir Francis Bacon d says, " where the Sect. ir. 
 " trust is not special, nor transitory, but ge- Distinction be- 
 " neral and permanent, there it is a use." A trusts. u 
 feoffment was made in fee, by which the pos- 
 session, or seisin, was transferred to the feof- 
 fee ; and a confidence, or trust, was placed 
 in him to permit the feoffor, or any other 
 person, and his heirs, to receive the rents and 
 profits; and also to make such legal estates, 
 as he or they should direct. This confidence 
 was the use : for the feoffee had a permanent 
 estate in fee in the lands, subject to the use, 
 or distribution of the profits. The fiduciary 
 or beneficial interest was commensurate to 
 the legal estate. But a trust did not make 
 this regular division of property into use and 
 possession ; it signified, that the grantor had 
 executed a conveyance of the lands, by which 
 he had not only transferred the possession, 
 but also the use, or right to take the profits; 
 reposing a personal trust in the grantee, that 
 he would retain both, in order to answer 
 some special purpose. Thus if he made-a 
 conveyance in trust, or to the intent, that 
 the grantee should convey to a third person, 
 the trust placed in the grantee was not to 
 
 c See Year Book 2 Edw. d See Bacon, Uses, 9. 
 4. 2. b. 
 
 B 2
 
 4 Uses and Trusts before [chap, i 
 
 Sect. ii. pay over the profits, but to dispose of the 
 Distinction be- profits and the possession*. 
 
 tween uses and r 
 
 trusts. 
 
 So if a man had enfeoffed another to the 
 intent, or in trust, to be re-enfeoffed ; or to the 
 intent to be vouched c ; or to the intent to 
 
 a In the following license 
 to alien is the form of an an- 
 cient grant of the kind. 
 From the style of this King, 
 I suppose it was in the reign 
 of Henry the sixth. 
 
 " Henry by the grace of 
 
 " God king of England, 
 
 " France, and lord of Ire- 
 
 " land. To all to whom these 
 
 " present letters shall come, 
 
 " greeting. Know ye, that 
 
 " of our own special grace 
 
 " and in consideration of 20 
 
 " marcs paid to us in our 
 
 " Hanaper Office, we have 
 
 " granted, and have given 
 
 " license for ourselves and 
 
 " our heirs, as much as in us 
 
 " lay, to our dearly beloved 
 
 " Richard Cornewayle, Esq. 
 
 "that he may enfeoff Tho- 
 
 " mas Whitten, Esq. Wm. 
 
 " Bourne, Esq. Jno. Hude- 
 
 "uett, Esq. Thos. Bulles- 
 
 " don, Clerk, of his castle 
 
 " and village of Stepulton in 
 
 " the Marches of Wales, 
 
 " adjacent to the county of 
 
 " Salop, together with the 
 
 " appurtenances thereof, 
 
 " which are held of us in 
 
 " capite. To have and to 
 
 " hold to the same Thomas, 
 
 " William, John, and Tho- 
 
 " mas, and their heirs, of 
 
 " us or our heirs, by due 
 
 " and customary service, in 
 
 " order that they may be en- 
 " abled to give and grant in 
 "full and peaceable seisin 
 " the aforesaid castle and 
 " village, with the appurte- 
 " nances, to the said Ri- 
 " chard and Cecilia his wife, 
 " and the heirs of the bo- 
 " dies of the said Richard 
 "and Cecilia; and if the 
 " aforesaid Richard and Ce- 
 " cilia depart this life with- 
 " out any heir of their two 
 " bodies, the aforesaid cas- 
 " tie and village, with the 
 " appurtenances, shall re- 
 " main to the right heirs of 
 " the same Richard, to be 
 " held of us and our heirs 
 " by the aforesaid service. 
 " And we give by these 
 " presents license to the 
 " same Thomas, William, 
 " John, and Thomas, that 
 " they may receive him the 
 "aforesaid Richard, and 
 " hold the aforesaid castle 
 " and village to themselves 
 "and to their heirs, to hold 
 " as aforesaid. In witness 
 " whereof we hereby cause 
 " these letters to be made 
 " patent. Witness myelf at 
 " Gloucester, the 24thNov. 
 " in the ninth year of our 
 " reign." 
 (Signed) "Mapleton." 
 s Bacon, Uses, 8.
 
 chap. I.] Stat. 27 H. 8. c. 10. 5 
 
 suffer a recovery 1 ' ; none of these intents, or Sect. ii. 
 
 trUStS, Were USeS. Distinction be- 
 
 tween uses and 
 trusts. 
 
 The trust above described is called by Sir 
 Francis Bacon, " the special trust lawful 1 ." 
 But there is a special trust unlawful, which, 
 he says, was created to the intent, " to de- 
 " fraud creditors, or to get men to maintain 
 " suits, or to defeat the tenancy to the prae- 
 " cipe, or the Statute of Mortmain, or the 
 " lords of their wardships, or the like; and 
 " those are termed frauds, covins, or collu- 
 " sions." 
 
 In another place he adds k (speaking of 
 the special trust lawful), " And this we call 
 " confidence, and the Books do call them, 
 " intents ; and therefore these three are to 
 " be distinguished, and not confounded ; the 
 " covin, confidence, and use." 
 
 Upon the introduction of uses, the Court 
 of Chancery assumed an exclusive jurisdic- 
 tion over them ; and during the exercise of 
 that jurisdiction previously to the statute of 
 uses, its decisions were not free from the 
 scruples of the common law : and from con- 
 siderations arising from the laws and prin- 
 ciples of tenure, and from the nature of the 
 
 h 2Salk. 676. See Shep. ' Bacon, Uses, 8. 
 
 Touch. 652. k Page 9. 
 
 B 3
 
 6 Uses and Trusts before [chap. i. 
 
 Sect. ii. limited and inferior estates of tenants in tail, 
 Distinction be- f oy jjf e an( j mr vears it was determined, that 
 
 twcen uses and J 
 
 trusts. neither tenant in tail, for life, nor for years, 
 
 could stand seised to a use. The trust there- 
 fore declared upon the estate, or seisin, of a 
 tenant, having a limited interest, was not, 
 strictly speaking, a use a . 
 
 It must follow, that if the Court of Chan- 
 cery did not acknowledge the beneficial in- 
 terest of the cestuique trust, he was without 
 remedy ; and consequently, that in those 
 cases, where the trust was declared upon the 
 seisin or estate of a person, not capable, ac- 
 cording to the then contracted rules of equity, 
 to stand seised to a use, the subpcena did not 
 He against the trustee to compel him to per- 
 form the trust. 
 
 It is probable, that the distinction, which 
 has been taken between uses and trusts, may 
 to some appear controvertible. But the op- 
 posers of it must contend, that the special 
 trust before described, and the trust declared 
 upon the seisin of a tenant in tail, or for life, 
 and upon the possession of a tenant for years, 
 was within the statute 1 Richard 3. c. 1. ; 
 and consequently, that the cestuique trust 
 might have conveyed the legal estate with- 
 
 1 Vide post.
 
 chap. I.] Stat. 27 H. 8. c. 10. 7 
 
 out the concurrence of the trustees, in whom sect. n. 
 it was vested: a construction, which, so far Distinction be : 
 
 tween uses and 
 
 as it concerns the special trust, and the trust trusts - 
 declared upon the possession of a tenant for 
 years, would lead to practical consequences 
 of considerable importance, but which I shall 
 attempt to shew in a subsequent part of this 
 essay, is not tenable. 
 
 III. It is impossible to fix the precise pe- sect. hi. 
 riod, when the use or trust was introduced The introduc- 
 
 \ tion of trusts. 
 
 into England : but conjecture has not been 
 idle in attempting to supply the want of po- 
 sitive information. I do not mean to inquire, 
 as to the origin of those personal trusts, which 
 are better known in our law by the name of 
 deposits, or bailments ; for imagination can 
 scarcely trace a period so remote, in which 
 man, in society, was not sometimes induced 
 to entrust another with the object of his care, 
 or the fruits of his industry. 
 
 A special trust seems to have been the 
 root from which the permanent use arose ; 
 or, as Lord Bacon observes", " a trust was 
 " the way to a use :" and in another place ? 
 " the special intent unlawful and covinous, 
 "Was the original of uses, though after it 
 " induced to the lawful intent, general and 
 " special " The progress indeed from the 
 
 h Bacon, Uses, 9. 
 B 4
 
 8 Uses and Trusts before [chap. i. 
 
 sect. hi. trust created for a special or transitory pur- 
 The introduc- pose to the general or permanent use, seems 
 
 tion of trusts. . 
 
 to be so natural, that the proof of it does 
 not require the aid of authority . 
 
 Mr. Selden d has stated, that " Ethelred, 
 " Ealdorman of Mercland, had all that, which 
 " was the kingdom of Mercland, to his own 
 " use, as an ealdorman, and fief, given him 
 '.'.' in marriage with Ethelfled by her father 
 " King Alfred. Londoniam caput regni Mer- 
 " riorum (saith William of Malmesbury) cui- 
 ft dam primario Ethelredo, ivifidelitatem suam 
 " cumfilia Ethel fleda concessit." He adds, 
 " that after Alfred's death, his son Edward 
 li was King of Westsex and Mercland, but 
 " so, that he was King of Mercland in name 
 " only ; the whole posesssions remaining to 
 " Earldorman Ethelred. Duo regna Merci- 
 
 c Yet the point seems to saleable or grantable at 
 
 have been discussed in Lord pleasure, by assurances not 
 
 Dacre's case, 27 Hen. 8. applicable to the transfer of 
 
 7. b. (Year Book). The the land itself. York's ar- 
 
 question was whether a use gument appears to be erro- 
 
 was devisable? It was con- neous ; for admitting that 
 
 tended, that the use being a trust in the general sense 
 
 a novelty in the law, it of the word, was co-eval 
 
 could not be devised, be- with the law, yet it is evi- 
 
 cause a devise, at that time, dent, that the permanent di- 
 
 must have been supported vision of property into the 
 
 by a custom. It was an- legal, and beneficial inter- 
 
 swered by York, that a use est, distinctfrom each other, 
 
 was merely a trust, which was an invention to evade 
 
 was at common law ; for or lessen the force of some 
 
 confidence was necessary pre-existing law. 
 between man and man; and d Tit. Hon. 510. 
 
 that this trust was always
 
 chap. I.] Stat. 27 H. 8. c. 10. 9 
 
 " orum et West Saxonum conjunxerat ; Mer- Sect - iil 
 " ciorura nomine tenus, quippe commendatum ™* U'"^ 
 " Duci Ethelredo, tenens." 
 
 According to Sir Martin Wright b , the 
 word commendatum, suggests a trust : and 
 indeed consideringthis gift by Alfred accord- 
 ing to the modern construction of a convey- 
 ance, it would appear to be an assurance, not 
 operating upon the legal, but merely upon 
 the beneficial interest; for Alfred gave the 
 kingdom of Mercland to Ethelred, as the 
 marriage-portion of his daughter, and yet 
 the legal estate appears to have continued in 
 Edward the son and heir of Alfred. 
 
 But it is evident, that Mr. Selden con- 
 sidered the case as amounting to a Saxon 
 tenure, and not to a trust ; and there is no 
 ground for supposing, that Alfred voluntarily 
 converted himself into atrustee,when he might 
 have effected the same purpose by a simple 
 gift, modified in any manner, suitable to his 
 wishes, and without assuming an office, in- 
 compatible with his situation, as Sovereign . 
 
 b Tenures, 47. Note C. " joined to give part of the 
 
 c Mr. Sharon Turner, in " land to Eaulfe and Here- 
 
 the 2d vol. of his History "wine: but Eaulfe was to 
 
 of the Anglo-Saxons (173), "give half of this part to 
 
 states a similar grant. "The " Biarnulve, and to enjoy 
 
 " King gives a manor to " the other half for his own 
 
 " Edred, and permits Edred "life, with the power of 
 
 "to give it to Lulla and " devising it, as he pleased.'' 
 " Sigethrythe, who are en-
 
 10 Uses and Trusts before [chap. i. 
 
 Sect. in. It has been argued with much propriety, 
 
 The introduc- that uses could not have existed before the 
 
 tion of trusts. 
 
 statute quia emptores terrarum, 18 Eclw. 1. 
 which abolishes the immediate tenure between 
 the feoffor and feoffee. " In ancient books 
 " no mention is made of a use; and if any 
 " use had been at the common law, it would 
 " have been specified in the ancient books of 
 " our law : and thus it seems to me, that 
 " before the statute of quia emptores terrarum, 
 " if one had made a feoffment in fee, the law 
 " would have created a tenure between the 
 " feoffor and the feoffee; which tenure is a 
 "consideration; and by such consideration 
 " the feoffee would have been seised to his 
 " own use : and so before that statute, there 
 41 was no use by reason of the consideration 
 " before mentioned 3 ." 
 
 It has been supposed, that trusts were 
 known in the reign of Henry the third. 
 This opinion 13 is occasioned by the statute of 
 Marlbridge c , which relieves against false 
 
 a Per Pollard, 27 H. 8. b See Bro. N. C. P. 59. 
 
 9. a. Year Book. But see 60. 
 
 Bro. N. C. 60. and March's c 52 Hen. 3. c. 6. " As 
 N. C. 128. where it is said, " touching them that use to 
 et opinio fuit, that a use " enfeoff their eldest sons 
 was at common law before " and heirs being within 
 the statute of quia emptores "■ age, of their heritage, for 
 terrarum ; but uses were not "to defraud the lords of 
 common before the same " tlie fee of their ward- 
 statute. And see note to " ships, it is provided, ac- 
 pl. 2.22. Vin.179. "corded, and agreed, that
 
 chap. I.] Stat. 27 H. 8. c. 10. 1 1 
 
 and covinous feoffments, made to defraud the s EC t. hi. 
 chief lords of their wards. The statute, The introduc- 
 
 , - Til tl0n °f lrUsts - 
 
 however, does not, 1 apprehend, warrant 
 this conclusion. For as to the opinion, that 
 the feoffor, in the case of a feoffment to his 
 eldest son, or heir within age, took the pro- 
 fits for his own use, it is, as Sir Francis Ba- 
 con observes, a conceit; for although the 
 profits were taken to the use of the son, it 
 was still a feoffment within the statute d : 
 and as to the second case mentioned by the 
 statute, that certainly alludes to feoffments 
 upon condition, and not upon trust 6 . There 
 is ground to conclude, that neither uses nor 
 trusts were known at that time, from the cir- 
 cumstances attending the succeeding king's 
 reign (Edward the first) : for the clergy, who 
 were then endeavouring, arte vel ingenio, to 
 bring lands into mortmain without license, 
 were not, it seems, acquainted with the uti- 
 
 " by occasion of any such <' pay a certain sum to the 
 
 " feoffment no chief lord " value of the same lands, 
 
 "shall lose his ward. (2.) " or far above ; so that after 
 
 " Moreover, touching them " such term, the land shall 
 
 " that fain false feoffments " return unto them, or to 
 
 " of their lands, which they "their heirs, because no 
 
 " will lease for term of years "man will be content to 
 
 " to defraud the chief lords " hold it upon the price ; it 
 
 " of their wards, wherein " is provided and agreed 
 
 " it is contained that they " that by such fraud no 
 
 " are satisfied of the whole " chief lord shall lose his 
 
 " service due unto them " ward." 
 " until a certain term, so * Bac. Uses, 25. 
 
 "that such feoffees are e See 2 Inst. 111. Poph. 
 
 " bound at the said term to 77.
 
 The introduc- 
 tion of trusts. 
 
 12 Uses and Trusts before [chap. i« 
 
 Sect. hi. lity of trusts. The statute de religiosis^ 
 which was principally made to prevent alien- 
 ations in mortmain, takes no notice of them : 
 and if uses or trusts had been then known, 
 it is most probable, that the clergy, who 
 were more conversant in the civil law than 
 the laity, would have taken advantage of 
 them. 
 
 It has been argued, that trusts were early 
 received, on account of the writ called causa 
 matrimonii pra?locuti e . Thus, if a woman 
 had given lands in fee, or for life to a man, 
 to the intent that he should marry her, the 
 common law gave her this writ of causa ma- 
 trimonii prcelocuti, to recover her lands, in 
 case the marriage did not take effect 11 . So 
 if the woman had given the lands to a 
 stranger, to the intent, that he should re- 
 convey them to her and her intended hus- 
 band, the same writ was allowed her ! . This 
 writ, it must be observed, was granted to 
 the woman by the common law, which is 
 alone a conclusive reason, that the confidence 
 reposed in the husband, or stranger, was not 
 a use nor trust ; for it is a rule, that when- 
 ever a remedy is given against uses or trusts, 
 that remedy is afforded by an express statute, 
 
 f 7Edw. 1. SeeBac. 25. h F. N. B. 471. 
 
 Poph.77. j Ibid. 472. 
 
 « Vide Year Book 27 
 Hen. 8. 10.
 
 chap. I.] Stat. 27 H. 8. c. 10. 13 
 
 and not by the common law*. It has been Sect - iil 
 further said 1 , that trusts were introduced inj^jyjjjj 
 the reign of Edward the second ; but I have 
 found no instance of a trust, which can sup- 
 port that opinion". 
 
 Trusts, however, were certainly frequent 
 during the reign of Edward the third. 
 Brooke, in a note upon a case reported in the 
 year book of that monarch's reign v (where 
 feoffees were sued by petition), thinks it 
 worthy of observation, that trusts were known 
 in those days x . And although Sir Francis 
 Bacon says y , that this case, and the book of 
 8 Ass. (where a fine was levied in autre droit), 
 are but implications of no moment; yet the 
 statute 50 Edw. 3. c. 6. clearly proves, that 
 special trusts were then in practice. The sta- 
 tute runs thus : " Because that divers people 
 " inherit of divers tenements, borrowing di- 
 " vers goods in money, or in merchandise, of 
 " divers people of this realm, do give their 
 " tenements and chattels to their friends by 
 " collusion thereof to have the profits at their 
 " will, and after do flee to the franchise of 
 
 •Poph. 77. Bac. Uses, there is an Irish Statute 
 
 23. against secret feoffments, 
 
 1 Brent's case. 2 Leon, so early as the third of Ed- 
 
 ca. 25. per Harpur. ward the 2d, styled the sta- 
 
 " I ohserve, however, that tutes of Kilkenny. 
 Mr. Daines Barrington, in v 44 Ed. 3. 25. 
 
 his Observations upon the x Bro. Feof. al. Uses, 9. 
 
 Statutes (403. note i.), says, » Bac. Uses, 23, 24.
 
 14 
 
 Sect. III. 
 
 The introduc- 
 tion of trusts. 
 
 Uses and Trusts before [chap. i. 
 
 " Westminster, of St. Martin le Grand, of 
 " London, or other such privileged places, 
 " and there do live a great time with an high 
 " countenance of another man's goods, and 
 " profits of the said tenements and chattels, 
 " till the said creditors shall be bound to 
 " take a small parcel of their debt, and re- 
 " lease the remnant. It is ordained and as- 
 " sented, that if it be found that such gifts 
 " be so made by collusion, that the said cre- 
 " ditors shall have execution of the said te- 
 " nements and chattels, as if no such gifts 
 " had been made\" 
 
 a By a subsequent statute, 
 1 Rich. 2. c. 9. "Because 
 " it is complained to the 
 " King that many people of 
 " the said realm, as well 
 " great as small, bearing 
 " right and true title, as 
 " well to lands, tenements, 
 " and rents, as in other per- 
 " sonal actions, be wrong- 
 " fully delayed of their 
 " right and actions, by 
 " means that the occupiers 
 " or defendants to be main- 
 " tained and sustained in 
 " their wrong, do common- 
 H ly make gifts and feoff- 
 " ments of their lands and 
 " tenements which be in 
 " debate, and of theirother 
 " goods and chattels to 
 " lords and other great men 
 " of the realm, against 
 " whom the said pursuants 
 " for great menace, that is 
 " made to them, cannot, 
 " nor dare not, make their 
 '* pursuits : and also on the 
 
 " other part complaint is 
 " made to the King, that 
 " oftentimes many people 
 " do disseise other of their 
 " tenements, and anon, af- 
 " ter the disseisin done, 
 " they make divers alien- 
 " ations and feoffments, 
 " sometimes to lords and 
 ** great men of the realm 
 '* to have maintenance, and 
 " sometime to many persons 
 " of whose names the dis- 
 " seisees can have no know- 
 " ledge, to the intent to de- 
 " fer and delay by such 
 " frauds the said disseisees 
 " and the other demandants 
 '' and their heirs, of their 
 " recovery, to the great 
 " hindrance and oppression 
 " of the people ; it is or- 
 " dained and established, 
 " that from henceforth no 
 " gift or feoffment of lands, 
 " tenements, or goods, be 
 " made by such fraud or 
 "maintenance; and if any
 
 chap. I.] Stat. 27 H. 8. c. 10. 15 
 
 IV. The earliest mention, which I find, of Sect. iv. 
 the word use, is in the statute of provisors, Introductlon of 
 
 * * uses. 
 
 7 Rich. 2. c. 12. x ; and Bacon considers the 
 first practice of uses to be about that reign y . 
 It is likely, however, that uses of the per- 
 manent kind before described were known in 
 the preceding king's reign ; for as in their 
 commencement uses were of a secret nature 
 (the use being originally created on the state 
 of the feoffee merely by a parol declaration), 
 it is probable, that they were not noticed by 
 the legislature, until they had gained some 
 degree of notoriety. In a case before cited 3 , 
 Manwood says, " I have seen divers ancient 
 " deeds of uses, and in ancient times you 
 " shall not find that any would purchase 
 
 be in such wise made, they 
 shall be holden for none 
 and no value; and the 
 said disseisees shall from 
 henceforth have their re- 
 covery against the first 
 disseisors, as well of the 
 lands and tenements, as 
 of their double damages, 
 without having regard to 
 such alienations, so that 
 the disseisees commence 
 their suits within the year 
 next after the disseisin 
 done. And it is ordained 
 and established, that the 
 same statute shall hold 
 place in every other action 
 in plea of land where such 
 feoffments be made by 
 fraud or collusion, to have 
 their recovery against the 
 first such feoffor. And 
 
 " it is to wit, that this sta- 
 " tute ought to be under- 
 " stood where such feoffors 
 " thereof take the profits." 
 
 x " And moreover it is 
 " assented, that if any alien 
 " have purchased, or from 
 " henceforth shall purchase, 
 "any benefice of holy 
 " church, dignity, or other 
 " thing, and in his proper 
 " person take possession of 
 " the same, or occupy it 
 " himself within the realm, 
 " whether it be to his own 
 " proper use, or to the use 
 " of another, without espe- 
 " cial license of the King, 
 " he shall be comprised 
 " within the same statute." 
 
 y Bac. 24. 
 
 a Brent's case, 2 Leon. 
 15.
 
 16 Uses and Trusts before [chap. i. 
 
 sect. iv. tt i anc i s to himself alone, but had two or three 
 introduction of ( cj oint feoflfees with him, and he who was 
 " first named in the charter of feoffment, was 
 " cestuique use, although that no use was de- 
 " clared to him upon the livery ; and so it 
 " was known by the occupation of the lands. 
 " And the reason why no mention is made in 
 " our ancient books of uses, is, because men 
 " were then of better consciences than now 
 " they are ; so as the feoffees did not give oc- 
 " casion to their feoffors to bring subpoenas to 
 " compel them to perform the trusts reposed 
 " in them." 
 
 In consequence of the secret manner in 
 which uses were at first declared, and of the 
 difficulty of obtaining evidence of the object 
 of the parties, and the extent of the bene- 
 ficial interest, by the ordinary proceedings of 
 a court of law, it has been said, that John 
 Waltham, who was Bishop of Salisbury, and 
 Chancellor to King Richard the second, by 
 a strained interpretation of the statute of 
 West. 2. devised the writ of subpoena, return- 
 able in the Court of Chancery only\ 
 
 sect.v. V. The use afforded the clergy an oppor- 
 
 History of uses tunity of avoiding the statutes of mortmain : 
 
 to the reign of J ° 
 
 Rich. 3. f or although they could not buy lands in their 
 
 b 3 Black. Com. 52. See and Gilb. Forum Romanum, 
 Mr. Cruise's valuable Di- 17. 
 gest, 1 vol, 396. & seq.
 
 <- 
 
 chap. I.] Stat. 27 H. 8. c. 10. 17 
 
 own names, yet they might evade the statutes Shct - v - 
 by obtaining grants, not directly to, but to IIis ! orv . of us f 
 
 o o J to'the reign of 
 
 the use of their religious houses. But the 11 ' 01 '- 3, 
 legislature interfered, and by a statute made 
 15 Rich. 2. c. 5. a , it was enacted, that the 
 lands so purchased to uses should be amor- 
 tized by license from the crown, or sold to 
 private persons; and that uses should be sub 
 ject for the future to the statutes of mort- 
 main, and be forfeitable like the lands. 
 
 * " And moreover it is 
 " agreed and assented, that 
 " all they that be possessed 
 " by feoffment, or by other 
 " manner, to the use of re- 
 " ligious people, or other 
 " spiritual persons, of lands 
 " and tenements, fees, ad- 
 " vowsons, or any other 
 " possessions whatsoever, 
 " to amortize them, and 
 ■" whereof the said religious 
 " and spiritual persons take 
 " the profits, that betwixt 
 " this and the feast of St. 
 * Michael next coming, 
 " they shall cause them to 
 " be amortized by the li- 
 " cense of the King and of 
 " the Lords, or else that 
 " they shall sell and alien 
 **. them to some other use 
 " between this and the said 
 " Feast, upon pain to be 
 " forfeited to the King, and 
 " to the Lords, according to 
 " the form of the statute of 
 " religious, as lands pur- 
 " chased by religious peo- 
 t( pie: and that from hence- 
 " forth no such purchase be 
 " made, so that such rc- 
 " ligious or other spiritual 
 
 VOL, I. ( 
 
 persons take therefore the 
 profits as afore is said, 
 upon pain aforesaid, and 
 that the same statute ex- 
 tend and be observed of 
 all lands, tenements, fees, 
 advowsons, and other 
 possessions, purchased, or 
 1 to be purchased, to the 
 ! use of guilds or fraterni- 
 ties. And moreover it is 
 assented, because mayors, 
 bailiffs, and commons of 
 cities, boroughs, and other 
 ' towns, which have a per- 
 petual commonalty, and 
 others which have offices 
 perpetual, be as perpe- 
 tual as people of religion, 
 that from henceforth they 
 shall not purchase to them 
 and to their commons, or 
 office, upon pain contain- 
 ed in the said statute de 
 religiosis. And whereas 
 others be possessed, or 
 hereafter shall purchase 
 to their use, and they 
 thereof take the profits, 
 it shall be done in like 
 manner as is aforesaid oi 
 people of religion."
 
 18 Uses and Trusts before [chap. 
 
 sect. v. The disputes between the Houses of York 
 
 History of uses an( j Lancaster ori«iiiated in the reisrn of Ri- 
 
 to the reign ot c ° 
 
 Rich. s. chard the second. It was natural, that men, 
 
 becoming parties to these unfortunate quar- 
 rels, should seek the means of retaining their 
 estates in their own families by preserving 
 them from forfeiture. This was effected by 
 the aid of uses. The most plain and simple 
 plan was that of conveying lands, in the life- 
 time of the grantor, to such uses as were 
 directed in the deed, or by parol declaration. 
 By another, a power was given over the use 
 which was not suffered by the common law 
 over the land; that of devising. As the legal 
 estate was vested in the feoffees by either of 
 these dispositions, the lands were exempted 
 from forfeiture. The causes then, which in- 
 duced men to continue uses at this period, 
 were extremely different from those of their 
 production. Their origin was occasioned by 
 fraud; their continuance proceeded from 
 laudable motives. 
 
 During the civil commotions, which at- 
 tended the troublesome reigns of Richard 2. 
 and Henry 4. most of the lands in the king- 
 dom were conveyed to uses. A practice so 
 general could not escape the notice of the le- 
 gislature; and therefore in some general acts, 
 as in 21 R. 2. c. 3. and in some particular 
 ones, as in the case of the Duke of Northum-
 
 chap, l.] Stat. 27 H. 8. c. 10. 19 
 
 berland 1 ', forfeitures for treason were extend- Slct. v. 
 ed not only to the lands, of which the person History of uses 
 
 J l to the reign of 
 
 attainted was himself seised, but- to those Rici >- s - 
 whereof he was seised as cestuique use. 
 
 During the reigns of Henry the fourth, 
 Henry the fifth, and Henry the sixth, 1 find 
 only three statutes relating to trusts. The 
 statutes of 4 Hen. 4. c. 7. and 11 Hen. 6. 
 c. 3. were enacted to confirm and enlarge the 
 1 Rich. 2. c. 9. before stated. But by the 
 5th chap, of the II Hen. 6. it appears, that 
 tenants for lives or years, who were subject 
 to actions of waste by the reversioner, upon 
 their commission of it, had taken advantage 
 of the doctrine of trusts, "in order to escape 
 punishment, by conveying their estates to 
 friends in trust for themselves, and after- 
 wards committing waste upon the lands at 
 their pleasure: they still continuing to oc- 
 cupy the premises, and to take the profits to 
 their own use: for the reversioner being ig- 
 norant of the legal owner of the lands, did 
 not know against whom to bring his action : 
 " It is therefore ordained and established, 
 " that they in the reversion, in such case, 
 " may have and maintain a writ of waste 
 " against the said tenants for term of life, of 
 " another's life, or for years* and so recover 
 
 b See the Your Book 11 Hen, 4. 5"2. pi. 30. 
 c2
 
 20 Uses and Trusts before [chap. i. 
 
 Sect. v. << against them the place wasted, and their 
 History of uses « treble damages for the waste by them done. 
 
 lo the reign 01 °. ^ 
 
 Rich. 3. a as they ought to have done for the waste 
 
 " committed by them before the said grant 
 " and lease of the estate." 
 
 In the 5th Hen. 5.° it appears, that a 
 case arose, upon the nature and extent of the 
 estate of cestuique use. A man being seised 
 of a manor to which an advowson was ap- 
 pendant, conveys the manor to feoffees to 
 his own use, and afterwards is outlawed in 
 an action of debt. During the outlawry, the 
 church becomes vacant, and the cestuique use 
 presents to the church; the King brings his 
 quare impedit, and the case was determined 
 in his favour ; for cestuique use, as tenant at 
 will to his feoffees, had a possession, which 
 was forfeited to the crown by the outlawry. 
 
 But the great point seems to have been 
 settled in the 4th Ed. 4. a , that cestuique use 
 could obtain no relief in the courts of com- 
 mon law against his feoffees, but must relv 
 upon the equitable jurisdiction of the Court 
 of Chancery. But even in this King's reign 
 the principles of equity were so little under- 
 stood, that it was determined, that the sub- 
 poena did not extend to the heir of the feof- 
 
 r Year Book 5 Hen. 5. d 4 Ed. 4. 8. b. pi. 9. 
 
 3. 6. Bro. Feoff, al. Uses, 
 pi. 45.
 
 chap. I.] Stat. 27 H. 8. c. 10. 21 
 
 fee, who was in by law ; but relief in such Sect - v - 
 cases could only be had by his bill in Parlia- Hist , or y of uses 
 
 " . » to the reign of 
 
 ment*. R >ch. 3. 
 
 From the 11th Hen. 6. to the reign of 
 Rich. 3. (which includes a space of fifty 
 years), the Statute Book is totally silent upon 
 the subject of uses. From this circumstance 
 Sir Francis Bacon concludes, and there is 
 ground to believe, that uses were most fa- 
 voured about that time. The statute of 
 1 Rich. 3. c. 1. materially increased the 
 power of cestnique use. 
 
 This statute recites, "That forasmuch as stat. of i Rich, 
 
 3 c. 1. 
 
 " by privy and unknown feoffments, great 
 * usurety, trouble, costs, and grievous vex- 
 " ations daily grow betwixt the King's sub- 
 s f jects, insomuch that no man that bnyeth 
 u any lands, tenements, rents, services, or 
 " other hereditaments, nor women that have 
 "jointures or dowers in any lands, tene- 
 " ments, or other hereditaments, nor men's 
 " last wills to be performed, nor leases for 
 c ' term of life or years, nor annuities granted 
 " to any person or persons, for their services 
 
 e Year Book S Ed. 4. 6. ferences to the Year Books ; 
 
 22 Ed. 4. 6. Carey, 13. 9 Hen. 4. 8. 12 Hen. 4. 21. 
 
 But this was soon reme- 1 Hen, 5. 4, 33 Hen. 6. 15. 
 
 died. See Keiiw. 42. b. 5 Ed. 4. 7. 8. 7 Ed. 4. 14. 
 
 They who wish to examine 18 Ed. 4. 11. 7 Ed. 4. 29. 
 
 the early decisions upon 17. and generally to Bro. 
 
 uses and trusts, may be tit. Feoff, al. Uses, 
 assisted by the following re- 
 
 c 3
 
 22 Uses mid Trusts before [chap, i, 
 
 Sect. v. u for term of their lives, or otherwise, be in 
 stat. of i Rich, a p er f ec t surety, uor without great trouble 
 " and doubt of the same, because of such 
 " privie and unknown feoffments : for the 
 " remedy whereof it is ordained, established, 
 " and enacted, by the advice of the Lords 
 " spiritual and temporal, and the commons 
 " in this present parliament assembled, and 
 " by authority of the same, that every estate, 
 " feoffment, gift, release, grant, leases, and 
 " confirmations of lands, tenements, rents, 
 " services, or hereditaments, made or had, or 
 " hereafter to be made or had, by any person 
 " or persons being of full age, of whole 
 " mind, at large, and not in duress, to any 
 " person or persons, and all recoveries and 
 "executions had or made, shall be good and 
 " effectual to him to whom it is so made, 
 " had, or given, and to all others to his use, 
 " against the seller, feoffor, donor, or granter 
 " thereof, and against the sellers, feoffors, 
 " donors, or granters, his or their heirs, 
 " claiming the same only as heir or heirs to 
 " the same sellers, feoffors, donors, orgrant- 
 " ers, and every of them, and against all 
 " others having or claiming any title or in- 
 " terest in the same, only to the use of the 
 " same seller, feoffor, donor, or granter, 
 " sellers, feoffors, donors, or granters, or his 
 " or their said heirs, at the time of the bar- 
 " gain, sale, covenant, gift, or grant made : 
 " saving to every person or persons such
 
 chap. I.] Stat. 27 H. 8. c. 10. 23 
 
 " right, title, action, or interest, by reason sect. v. 
 ,e of gift in tail thereof made, as they ought stat. of i Rich. 
 ' to have had if this act had not been made." 
 
 VI. This statute was evidently intended Swjt.vl 
 for the benefit of purchasers, by giving the ™d XcTo'fTbe 
 cestuique use an alienable power over the pos- stat " 1 Ricl1 ' 3 ' 
 session, as well as the use. But the intention 
 of the legislature was frustrated ; for the sta- 
 tute did not deprive the feoffees of the power 
 of alienation; and consequently if they alien- 
 ed the land for a valuableconsideration, and 
 without notice, previously to any disposition 
 made by cestuique use pursuantto the statute, 
 such alienation disabled cestuique use from 
 exercising the power which the statute meant 
 to afford him. Besides this inconvenience, 
 there was a still greater produced by the sta- 
 tute ; for it often occasioned a kind of double- 
 handed proceeding, or fraud, both in the 
 feoffees and cestuique use. The feoffees had 
 a power over the possession by the common 
 law, and the cestuique use by the statute. 
 They often colluded, and by making secret 
 and different feoffments, they purposely de- 
 feated each other's alienation, with a view to 
 deceive purchasers. 
 
 (1.) It has been a question of some im- ofihcaiiena- 
 
 v x lion of the ces- 
 
 portance, and perhaps never decided, whe- tui q« e *we. 
 ther in some cases any or what part of the 
 estate of the feoffees continued in them after 
 
 c 4
 
 24 Uses and Trusts before [chap. i. 
 
 sect. vi. the feoffment of, or alienation by, the ces- 
 
 The operation tuique USC 
 
 andeiiect of the *■ 
 
 stat. 1 Rich. 3. 
 
 in fee. If cestiiique use in fee-simple had made a 
 
 feoffment in fee-simple, according to the sta- 
 tute 1 Rich. 3. c. 1. it seems, that the 
 whole interest of the feoffees was thereby 
 conveyed. So if there had been cestuique 
 use in fee-simple, and he had made a feoff- 
 ment in fee-simple, upon condition of re- 
 entry, and the condition was afterwards 
 broken, and the cestuique use had entered ; 
 the estate of the feoffees was not restored by 
 such entry 3 . 
 
 Of cestuique use But notwithstanding the alienation of ces- 
 tuique use in fee had this effect by the statute 
 of 1 Rich. 3. there was a distinction, when 
 cestuique use had only a limited estate in the 
 land, as an estate for life or in tail, with a 
 remainder over. 
 
 In a case b in the seventh year of Edward 
 the sixth's reign, one Davis, being seised in 
 fee, enfeoffed J.L. and others in fee, in the 
 19th year of Henry the eighth, to the use 
 of his wife for life, remainder to his brother 
 in tail, remainder to B. H. in tail, remainder 
 to the right heirs of the feoffor. Afterwards, 
 
 * 21 Hen. 7. 25. Bro. b Davis's case, Dyer, 88. 
 
 tit. Feof. al. Uses, pi. 18. b. 89. a. 
 Go. Litt. 103. a.
 
 chap. i.J Stat. 27 H. 8. c. 10. 25 
 
 in the 24tli Henry 8. Davis and his wife le- Sect - vi - 
 vied a fine with proclamations to Sir H. W. ^XTrfThe 
 and others in fee, to the use of Sir H. W. statl Rich - 3 - 
 and his heirs in fee. The brother, the first 
 in remainder, joined in this fine. Sir T. W. 
 son and heir of Sir H. W. bargained and sold 
 the lands to the King in fee. After this the 
 brother died without issue, and then the wife 
 died. J. L. the surviving feoffee, brought 
 his petition, and this matter was found by the 
 verdict. In arrest of judgment it was al- 
 leged on the part of the King, that the pe- 
 tition did not lie for the feoffee, because the 
 fee-simple of the use was lawfully conveyed 
 to Sir H. W. ; and therefore J. L. the feoffee, 
 could not enter to revive the use; because he 
 could not be seised of the fee-simple in the 
 same manner as he was before the alienation. 
 This case does not appear to have been deter- 
 mined ; and therefore Dyer adds, " et ideo 
 " quaere inde." 
 
 However, in a case sent from the Chancery 
 for the opinion of the Judges 3 , they were in 
 favour of this opinion. It was thus: there 
 was cestuique use in tail, remainder over in 
 tail, remainder to the first cestuique use (in 
 tail) in fee. Cestuique use in tail before the 
 27th Hen. 8. made a feoffment in fee to the 
 use of himself for life, remainder to his first 
 
 a Baskerville's case, Dy- Dyer, 58. a. Zouche's 
 er, 329. b. 330. a. Vide case.
 
 •26 Uses and Trusts before [chap, i. 
 
 sect. vi. sou (being heir in tail) and his wife for their 
 The operation ]{ ves remainder to the use of the heirs of 
 
 mid ellect of the 
 
 stat. i Rich. s. their bodies, remainder to the use of the 
 right heirs of the feoffor. The statue 27 
 Hen. 8. c. 10. is passed, and the feoffor dies. 
 The son and his wife enter: and then the first 
 feoffees enter, to revive the former uses in tail. 
 Dyer and Manwood were both of opinion, 
 that the entry of the feoffees was unlawful ; 
 for that the fee-simple in the use was lawfully- 
 transferred, and the right of the feoffees 
 bound by the statue of 1 Rich. 3. There- 
 fore, by their entry, the feoffees could not 
 have their former estate ; that is to say, tiie 
 fee-simple. This opinion was sent into Chan- 
 cery by those Judges, and Catlyn and Saun- 
 ders were of the same opinion. 
 
 On the other hand, it was expressly stated, 
 in the beginning of the reign of Henry the 
 seventh , that if cestuique use in tail made 
 a feoffment in fee, the feoffees might enter 
 after the death of cestuique use in tail, for 
 the purpose of revesting the former uses; 
 and that a feoffment by cestuique useybr life 
 operated only upon his estate for life ; and 
 consequently did not create a forfeiture. 
 This opinion, it seems, was adopted in the 
 reign of Henry the eighth : for Brooke d says, 
 
 c Bro. tit. Feof. al. Uses, Vide also Dyer, 57. b. p. 
 pi. 22. 4 Hen. 7. 18. 1. as to a lease by cestuique 
 
 11 Bro. lit. Fines, pi. 107. use for life.
 
 chap. 1.] Stat. 27 H. 8. c. 10. 27 
 
 that there was then no occasion for entry or Sect - vi 
 claim, within the five years, to avoid 9- fioiQ JJf .JSSSfSie 
 levied by cestuique use/or life with proclama- stat - * R,ch - 3 - 
 tions; such fine not working a forfeiture. 
 The rule, that neither a feoffment nor fine by 
 cestuique use for life amounted to a for- 
 feiture of his estate, must have been esta- 
 blished upon one of these grounds ; that by 
 the feoffment or fine the use and legal estate 
 passed to the grantee during the feoffor s life, 
 while the remainder continued in the first 
 feoffees; or that, by the fine or feoffment, 
 a base fee passed to the grantee, determinable 
 upon the death of cestuique use by the entry 
 of the feoffees. 
 
 Delamere's case f was, in substance, thus : 
 R. D. in the 13th Hen. 8. enfeoffed T. S. 
 and others in fee to the use of himself and 
 his wife, and the heirs of their two bodies; 
 and in default of such issue, remainder to 
 R. D. in tail ; remainders over. R. D. in 
 the 26th Hen. 8. enfeoffed W. D. in fee; 
 afterwards R. D. died, and the heir of the 
 surviving feoffee entered to revive the an- 
 cient uses ; and upon solemn argument it was 
 held, that the entry of the feoffees was law- 
 ful. It was said in this case, that by the 
 feoffment of R. D. the fee-simple in the 
 lands passed ; but that after the death of the 
 
 f Plowd. 348 to 353. 1 Co. 128.
 
 28 Uses and Trusts before [chap. i. 
 
 sect. vi. feoffor the feoffees might re-enter to revive 
 The operation j| ie ancient uses : but that, although this 
 
 and effect of the _ . . 
 
 stat. i Rich. 3. right of entry remained in the feoffees, yet 
 until their regress the fee-simple was out of 
 them. This case was considered as esta- 
 blishing a principle different from the deter- 
 mination in the case cited from Dyer; and 
 it was observed, that this was determined 
 upon solemn argument, but that from Dyer 
 was only the opinion of the Judges, without 
 any argument 5 . 
 
 The case from Dyer appears irreconcilable 
 to the first case cited from Brookes's Abridg- 
 ment; but perhaps it is not altogether in- 
 consistent with Delamere's case. The sta- 
 tute of Richard renders the feoffment of ces- 
 tuique use valid against all claiming any title 
 or interest in the lands only to the use of the 
 feoffor or his heirs. Now when the feoffor 
 in the latter case died, the feoffees did not 
 claim to the use of the heirs, but of the wife, 
 of the feoffor; in which case they were 
 neither restrained by the statute, nor the 
 common law. But in the case from Dyer, 
 the first feoffees certainly did claim to the 
 use of the heir in tail of cestuique use. The 
 only doubt appears to have been, whether 
 the words of the statute, " claiming the 
 *' same only as heirs of the feoffor, &c." should 
 
 * 1 Co. 128. b. 129. a.
 
 chap. I.] Stat. 27 H. 8. c. 10. 29 
 
 extend to the heirs special as well as gene- Sect. vi. 
 
 ?'al h . ^"' le °P era tion 
 
 and effect of the 
 stat. 1 Rich. 3. 
 
 If the case from Dyer be correct 1 , a feoff- 
 ment by cestuique use in tail, after the sta- 
 tute of Richard the third, had the same ope- 
 ration in barring the claims of the issue, as 
 a fine would have had b . I say, as a fine 
 would have had ; for notwithstanding the 
 effect of it was at first doubted, it appears 
 to have been settled , that a fine would have 
 bound the issue in tail of cestuique use, and 
 also the entry of the feoffees, while they 
 claimed to the use of the issue. But accord- 
 ing to the doctrine in Delamere's case, neither 
 the feoffment nor the fine would have barred 
 any remainder expectant on the determina- 
 tion of the estate tail ; for whenever the 
 entail ceased, the feoffees would have had 
 a right to enter to revive the ancient uses ; 
 in that case they would not have claimed to 
 the use of the feoffor, or his heirs, but to the 
 use of a stranger. I must observe, that Gil- 
 bert' 1 , in his Treatise on the Law of Uses and 
 Trusts, seems to have been in an error, when 
 he asserts, that a recovery suffered by a ces- 
 tuique, use in trust, did not, after the statute 
 1 Rich. 3. bind the issue in tail : for notwith- 
 
 h See B. N. C. 147. ■ B. N. C. 146. March 
 
 j Dyer, 329. N. C. 140. Year Book 
 
 b Sed contra Year Book 27 Hen. 8. 20. 
 
 19 Hen. 8. 13. 4 Hen. 7. d Gilb. Uses, 32. 
 
 18.
 
 tute 1 Rich. 3. 
 
 3 Uses and Trusts before [chap. I, 
 
 sect. vi. standing the doubt entertained in 30 Hen. 8.% 
 The operation it appears from the words of, and the sub- 
 
 and effect of the . ., , . . .% . 
 
 stat. i Kid.. 3. sequent construction upon, the statute, that 
 the recovery bound the issue claiming as 
 heirs only of the grantor or recoveree f . 
 
 of trust 9 and (2.) When the statute 1 Rich. 3. passed, 
 !!iShe°sta- the use, as Sir Francis Bacon observes*, ap- 
 peared " in his likeness ; for there is not a 
 " word spoken of taking the profits to de- 
 " scribe a use by, but of claiming to a use." 
 The statute does not even mention the words 
 trust and confidence, which are so particularly 
 expressed in the statute 27 Hen. 8. c. 10. It 
 is evident, that the statute extended merely to 
 uses declared upon a seisin or legal estate in 
 fee h : and that a trust or confidence declared 
 upon the seisin or estate of a tenant in tail, 
 or for life, or the possession of a lessee for 
 years, was not a fiduciary interest, within the 
 meaning of the use described by the statute. 
 This construction was adopted, when courts 
 of equity, tinctured with the prejudices of the 
 common law, had conceived, that the estates 
 of tenant in tail, for life, and years, were, from 
 
 ' Vide Bro. N. C. 147. March's N. C. 137. See 
 
 f " It was holden per also the Year Book 11) H. 
 
 " plures in the Chancery, 8. 13. Bassett and Morgan 
 
 " if a recovery be had, in v. Manxell, Plowd. 4. 
 
 " which cestuique use in s Bac. Uses, 27. 
 
 " tail is vouched, and t the h See 1 Co. 128. a. b. 
 
 " demandant recoversjthen Year Book 19 Hen. 8. 13. 
 
 <« this shall bind the issue." 4 Hen. 7. 18. Bassett v; 
 
 Bro. Feofl'. al. Uses, pi. 5G. Manxell, Plowd. 3.
 
 chap. I.] Stat. 27 H. 8. c. 10. 31 
 
 their nature, incapable of being conveyed to Sect - vi - 
 
 The operation 
 «* llS5t? « and effect of the 
 
 stat. 1 lticli. 3. 
 
 For as to the estate or seisin of a tenant Estates tail. 
 in tail, it was held, that no use could be li- 
 mited upon it: 1st, because the tenure of itself 
 created a valuable consideration ; 2d, be- 
 cause the statute de donis had appropriated 
 and fixed the estate tail to the donee and the 
 heirs of his body, so that neither he, nor they, 
 could execute the use 1 . I must here observe, 
 that the exception in 1 Rich, 3. extended only 
 to tenant in tail of the legal estate, and not to 
 cestuique use tenant in tail k . 
 
 With respect to the estate or seisin of te- Estates for life. 
 nant for life, the consideration of tenure be- 
 tween the lessor and lessee appears to have 
 been incompatible with the use. It is ex- 
 pressly stated in 2 Roll. Abr. 781. pi. 6. 
 that if a lease be made for life, that shall be 
 to the use of the lessee; and in Dyer (8b.^ 
 it is said that, " if the feoffees make a lease 
 ° for life, or an estate tail ; in these cases 
 " if they be argued closely, the law will 
 " prove, that the lessee or donee cannot be 
 
 1 " It was adjudged by 40. Co. Litt. 19. b. Plowd. 
 
 " the advice of all the 555. 2 Roll. Ab. 780. Jenk. 
 
 "justices, that tenant in Cent. 195. Gilb. on Uses 
 
 " tail could not stand seised 11. 205. and the note to 22 
 
 *■« to a use." Year Book Vin. 181. pi. 2. 
 
 27 H. 8. 10. a. 2 Co. 78. k B. N. C. 140. 
 a. Bro. Feof. al. Uses, pi.
 
 32 Uses and Trusts before [chap, i. 
 
 Sect. vi. " seised to an use." This I apprehend to have 
 The operation been the law, notwithstanding any inference 
 
 and eitectof the ° J 
 
 stat. i Rich. 3. to the contrary, which may be raised from an 
 expression in Brooke, FeofF. al. Uses, pi. 40. 
 that where rent is reserved, there, though a 
 use is expressed to the donor, it is a consi- 
 deration, that the donee shall have it to liis 
 own use. The point, indeed, now, is rendered 
 of no importance, as the stat. 27 H. 8. cer- 
 tainly extends to a trust declared upon the 
 seisin of a tenant for life. But in fact, there 
 could have been no difference between a lease 
 for life, and a lease for years ; and I shall 
 proceed to shew, that a trust declared upon 
 the possession of a tenant for years, was not 
 within the statute of 1 Rich. 3. : and indeed it 
 is of real consequence, that this point should 
 be understood. 
 
 Estates for To apply this learning to modern practice, 
 
 and to put a probable case : suppose A. pos- 
 sessed of the legal and absolute interest of 
 1000 years, and that he assigns over his term 
 to B. in trust for himself, and then makes a 
 feoffment in fee. This plan is frequently 
 adopted for the purpose of acquiring a free- 
 hold by disseisin, and at the same time of 
 providing against a forfeiture of the term by 
 the entry of the remainder-man. But the in- 
 tention of the parties would be frustrated, 
 supposing the trust declared upon the term of 
 1000 years to be a use within il: *;>tute of
 
 chap, ij Stat. 27 H. 8. c. 10. 33 
 
 1 Rich. 3. In such case the legal estate of Sect.vi. 
 B. (according to Delameres case, and th e ™dXc7ofThe 
 words of the statute) must pass by the feoff- 8tat 1 Rich - 3 - 
 ment of A. Now that feoffment must either 
 create a freehold by disseisin, or it must ope- 
 rate merely to the extent of the term ; the 
 latter construction would not answer the pur- 
 pose ; and by the former, A. would be ex- 
 posed to the forfeiture, which he intended to 
 prevent. So it is usual for a tenant for life, 
 who is about to make or concur in a convey- 
 ance, which may expose him to the forfeiture 
 of his life estate, to make a previous demise 
 of the lands to a trustee for 99 years (if he 
 shall so long live) in trust for himself. It is 
 therefore, as I observed before, of real conse- 
 quence, that it should be ascertained, whe- 
 ther the trust of a term of years can in any 
 case be considered within the statute of 
 Rich. 3. 
 
 I conceive, that upon an attentive perusal 
 of the authorities upon the subject, we may 
 collect these points: first, That the statute 
 of Richard was intended only to extend to 
 uses properly so called ; or, in other words, it 
 has never been construed to comprise such 
 fiduciary interests, as at the time of the act 
 were not cognizable by the court of chan- 
 cery ; and secondly, That a termor or lessee 
 for years could not at that time stand seised 
 either to an implied or express use ; or, to ex- 
 
 VOL. I. D
 
 34 hses and Trusts before [chap. i. 
 
 sect. vi. plain myself more clearly, that the subpoena 
 The operation was no i issuable against him for the purpose 
 
 and effect of the ° I r 
 
 stat. iRich. 3. of compelling him to perform the trust de- 
 clared upon his lease ; because it was sup- 
 posed, that the contract between the lessor 
 and lessee, and the consideration upon which 
 the latter took the lease, were incompatible 
 with, and repugnant to, the nature of a use, 
 declared to any other person. 
 
 I mention this rule as the construction of 
 the court of chancery, before the statute of 
 uses, when it is well known, that that court 
 still favoured the conclusions of the common 
 law. The use or trust declared upon the es- 
 tate of a lessee for years was in fact the jus 
 precarium; the cestuique trust having nothing 
 to depend upon, but the honour and con- 
 science of his trustee. It was not till after the 
 statute of uses, that the court of chancery, 
 acting upon more liberal principles, and being 
 under the necessity of once more watching 
 over the consciences of men, found an op- 
 portunity of supporting that as a trust, which 
 the courts of common law rejected as a use, 
 and of adopting a system in respect to the 
 former, which is attended with all the benefits, 
 and without any of the inconveniences, of the 
 latter. On the other hand, the courts of 
 equity have never considered any fiduciary 
 interest as a use, which was not considered as 
 such before the statute 27 Hen. 8. Such a
 
 chap. I.J Stat. 27 H. 8. c. 10. 35 
 
 construction would not have answered the Sect. vi. 
 purposes of equity. Thus, for instance, no Thc °P erati , on 
 
 r r . and effect of tlie 
 
 use, as I have mentioned, could be declared stat. i Rich. s. 
 upon a lease for years, and it was not within 
 the nature of 27 Hen. 8. ; yet the court of 
 chancery conceived, that the confidence re- 
 posed in the lessee was as much to be observed 
 in equity, as any other kind of use or trust. 
 How was this confidence to be supported ? 
 Certainly not as a use, but as a trust, which 
 the court of chancery could fashion according 
 to the more modern notions of equity. If it 
 had been supported as a use, it must have 
 been adopted with all its defects. But it is 
 certain, that the trust, declared upon a term of 
 years, differs in most essential points, from 
 what a use formerly was. 
 
 Thus all the questions concerning the ca- 
 pacity of persons to stand seised to a use are 
 avoided in the case of modern trusts; as the 
 courts of equity fasten the trust upon the es- 
 tate, and not upon the person. So there could 
 be no implied use upon a lease for years m , but 
 trusts by implication are perhaps more fre- 
 quent upon terms for years, than any other 
 kind of property". The wide difference in 
 their construction between a modern trust of 
 
 m This is a point univer- Perk. s. 536. Dyer, 10. a. 
 sally acceded to by writers n See also many other in- 
 
 on the subject. See the stances, post, ch. 3. 
 cases before cited, and 
 
 D 2
 
 36 Uses and Trusts before [chap, i- 
 
 Sect. vi. a term of years, and a use before the statute 
 The operation of uses, forms, in my opinion, a very conclu- 
 
 and eiFect of the . „ „ . . . , c 
 
 stat. i Rich. s. sive reason in favour ot the position before 
 submitted, that the former never has been, 
 nor can be considered as the use described by 
 the statute 1 Rich. 3. 
 
 I shall now add the authorities, confirming 
 the points in question ; from which it will be 
 perceived, that although the court of chan- 
 cery, soon after the death of Hen. 8. had in 
 some measure overcome its scruples, by al- 
 lowing the subpcena to issue against the les- 
 see for years, being a trustee ; it was not till 
 after the reign of Elizabeth, that the trusts 
 declared upon a term were held even assign- 
 able in equity ; it being at the same time re- 
 collected, that a use was always transferable 
 in chancery 1 . 
 
 It may not be improper to premise, that 
 the title of the act of 1 Rich. 3. c. 1. is in 
 these words : " All acts made by or against a 
 " cestuique use shall be good against him, his 
 "heirs, and feoffees in trust.'" It would be 
 
 x Upon examining the re- " t ute 1 Rich. 3." Upon 
 
 ference to Brooke, pi. 60. consideration, however, the 
 
 and Crompton, 66. a. in the reference is evidently to 
 
 second edition of this work, the statute 3 Hen. 7. c. 4. 
 
 there appears to be a mis- and not to the statute of 
 
 take in the passage. The Richard; and consequently 
 
 words in the original are, not applicable to this place. 
 " notwithstanding the sta-
 
 chap. I.] Stat. 27 H. 8. c. 10. 37 
 
 impossible to use words more inapplicable to Sfct - vi - 
 a trust declared upon a possession of a lessee T ^£Eofthe 
 or assignee for a term of years. The word stat - 1 Rich - 3 - 
 seised, in the statute of uses 27 Hen. 8. was 
 held sufficiently expressive to exclude leases 
 or terms for years : it appears to me, that the 
 words "feoffees and heirs," as fully express 
 the meaning of the legislature. 
 
 The lord chancellor, in Easter term 22 
 Eliz. z , put this question to the judges : A. 
 being possessed of a lease for a term of years, 
 granted all his estate and interest to B. and C. 
 and their assigns, to the use of the said A. 
 and his wife, for the term of their lives, and of 
 the longer liver of them ; and afterwards the 
 said A. gave to a stranger such interest as he 
 then had in the said lands in lease, and died : 
 whether this grant made by A. gave all the 
 term of B. and C. or not ? And it was an- 
 swered by all the justices and the chief 
 baron, that the gift or grant of him, in trust 
 for whom the term was granted, was void and 
 out of the statutes of cestuique use: and in a 
 note by the editor it is said, " and 1 R. (c. 1.) 
 " and 27 Hen. 8." for which he cites Ridley's 
 case. The observation, which Crompton(who 
 wrote in the latter part of Elizabeth's reign) 
 makes upon the case from Dyer, is much to 
 the purpose ; " Mes done d'un terme pur ans 
 
 •Dyer, 369. a. 
 D 3
 
 38 Uses and Trusts before [chap. i. 
 
 sect. vi. " al use est bon matter a cest jour in con- 
 Thc operation n science, et que il avera subpeena in le chaun- 
 
 andeli'cctofthe . 
 
 s tat. i Rich. 3. " eerie*." This remark clearly proves, that 
 cestuique trust of a term was not formerly en- 
 titled to the subpeena. 
 
 Jenkins, mentioning this case (244, case 
 29), says, " The husband cannot assign this 
 " trust, for a trust is nothing in law, and uses 
 " being abolished and joined to the posses- 
 " sion, this trust cannot be said to be a use." 
 In page 245, he adds, " Equity gives relief 
 " upon a devise ; but not upon an assignment 
 " of a trust.'' It must be observed, that Jen- 
 kins was speaking of the trust of a term for 
 years. 
 
 In the case of Sir Moyle Finche b it was 
 resolved by all the justices, " that a trust 
 " could not be assigned, because it was a mat- 
 " ter in privity, and was in nature of a chose 
 " in action, for cestuique trust had no power 
 u of the land, but only to seek remedy by 
 " subpeena, and not like to cestuique use, for 
 " thereof there should be possessiofratris,and 
 " he should be sworn on juries in respect of 
 " the use, and he had power over the land by 
 " the statute of 1 Rich. 3.'' Here then the 
 
 • Crorapton, CO. a. See in favour of a cestuique 
 
 also Rooke v. Staples, Ca- trust of a term. 
 ry's Rep. 76. 21 & 22 Eliz. b 4 Inst. 85. 
 
 where there was a decree
 
 chap, i.] Stat. 27 H. 8. c. 10. 39 
 
 distinction contended for is acknowledged by Sect. vi. 
 all the judges, and afterwards by the chan- The °P eration 
 
 J ° \ J and effect of the 
 
 cellor ; and it is observable, that sir Edward stat.iRich. 3. 
 Coke, as an instance of the trust just de- 
 scribed, cites the above-mentioned case from 
 Dyer. 
 
 Gilbert, in his Law of Uses, c is of opinion, 
 that if A. had assigned over the land itself in 
 the case taken from Dyer, it would have 
 been good by 1 R. 3. ; but the words he used 
 were not sufficient to pass the land itself, for 
 he had no interest therein. But of this no- 
 tion it is sufficient to observe, that it is not 
 only directly contrary to the authorities be- 
 fore quoted, and to the reason of the thing, 
 but would, if adopted, subvert the established 
 practice of the profession. Besides, there is 
 an evident absurdity in the distinction be- 
 tween the grant of the land itself and of an 
 interest therein ; for it is clear, that the sta- 
 tute 1 R. 3. gave cestuique use an interest in 
 the land ; and therefore if cestuique trust of 
 a terra had been considered as a cestuique use 
 under that statute, the grant of his interest 
 would have been as operative, as the grant of 
 the land itself, for the purpose of passing the 
 legal estate in the terrn d . 
 
 Gilb. Uses, 199. d Vide Co. Litt. 345. b. 
 
 3 Co. 24. a. 
 
 D 4
 
 40 Uses and Trusts before [chap. i. 
 
 Sect. vi. j n a i a t e case' where there was an out- 
 
 Thc operation standing satisfied term of years (and conse- 
 
 and enectof the o J \ 
 
 stat. i Rid.. 3. quently attendant upon the inheritance), it 
 was argued, that this term was within the 
 stat. Rich 3. ; and that the legal interest 
 therein passed by a conveyance of the inhe 
 ritance. But it was unanimously held, that the 
 statute Rich.3. was not applicable to that case. 
 
 A case lately came before the courts of law, 
 the decision of which has created some inte- 
 rest in the profession". John Dormer, lord of 
 the manor of Mear, by indenture dated the 
 3d of December 1743, demised to Charles 
 Fennell a messuage, &c. part of the lord's 
 waste, for ninety-nine years, under the yearly 
 rent of two shillings and sixpence. The 
 lease, by mesne assignments, became vested 
 in James Moody, who, by indenture dated 
 the 1st of March 1815, assigned the residue 
 of the term of ninety-nine years to John 
 Nash, subject to the yearly rent of two shil- 
 lings and sixpence, in trust nevertheless to 
 attend the uses limited by a feoffment bearing 
 date the 16th of the then instant March, and 
 made between James Moody,&c. By indenture 
 of feoffment perfected by livery of seisin, dated 
 the 16th day of March 1815, James Moody 
 enfeoffed J. Jaquesto uses therein limited for 
 
 e Goodtitle dem. Jones v. v. Moody and others, Mi- 
 Jones, 7 Term Rep. 47. chaelmas Term, 57 Geo. 3. 
 b Doe dem. Lord Dormer,
 
 chap. I.] Stat. 27 H. 8. c. 10. 41 
 
 the benefit of James Moody, his appointees, Sect - VL 
 heirs, and assigns, of the said messuage, &c. T1 *f °P er t atioi j 
 and covenanted to levy a fine to the same staURicb * 3 ' 
 uses. The fine was levied, and the rent of 
 two shillings and sixpence was continued to 
 be regularly paid. In consequence of these 
 transactions, the reversioner brought his 
 ejectment for recovery of the possession by 
 reason of a forfeiture, supposed to have been 
 committed by the feoffment. The cause was 
 tried before Thompson, chief baron, on the 
 29th of July 1817. 
 
 It will be observed, that in the trusts 
 declared concerning the term, reference is 
 made to the feoffment made (i. e. already 
 made) in trust for James Moody and his 
 heirs. The chief baron, in summing up to 
 the jury, put it on the ground of fraud ; and 
 after the defendant's counsel had asked the 
 judge to save the point, which was refused, 
 the chief baron directed the jury to find a 
 verdict for the plaintiff, thinking, that the 
 defendants were estopped by the deed from 
 saying, that the assignment was before the 
 feoffment ; because the assignment refers to 
 the feoffment as existing ; " as made." 
 
 Upon a motion for a new trial, a rule to 
 shew cause was granted ; a new trial was ul- 
 timately refused by the court of king's bench; 
 but I am not accurately informed upon what 
 ground.
 
 42 Uses and Trusts before [chap. i. 
 
 Sect. vi. It does not appear, that the case turned 
 
 The operation n the statute Rich. 3. It was determined 
 
 and effect of the 
 
 stat. i Rich. 3. either on the ground of the estoppel, or on 
 the effect of fraud arising from the payment 
 of the rent before and after the feoffment ; 
 and if on the ground of fraud, the fraud had 
 the effect of avoiding the deed, as completely 
 as a deed might have been avoided under a 
 plea of no?i est factum. 
 
 It will not be readily admitted, that the 
 assignment was considered absolutely void 
 on account of fraud ; for, although Lord 
 Kenyon, in the case of Doe dem. Willis v. 
 Martin, 4 Term Rep. 39. observing on the 
 facts in that case, which arose upon the exe- 
 cution of a power by deed, says, " this then 
 " was gross, rank fraud, and contaminates 
 " the whole transaction, and renders it abso- 
 " lutely void in a court of law, as well as in 
 " a court of equity ,•"' yet it would not be 
 easy to discover the grossness of fraud in the 
 case under consideration. A person not in- 
 capacitated, having a term of years, may law- 
 fully assign it, and I know of no restriction 
 against his subsequently making a feoffment 
 of the same land ; and if the operation of the 
 assignment and the feoffment were to bar the 
 reversioner after the end of the term, in con- 
 sequence of his negligence in not pursuing 
 his remedy within due time, I see no more 
 fraud, morally speaking, in the transaction,
 
 chap. I.] Slat. 27 H. 8. c. 10. 43 
 
 than in a person taking advantage of the sta- Sect - vi. 
 tute of limitations, or of non-claim on a fine. Th ^ °J? era,i ?" 
 
 and eilect ot the 
 
 But in the case in question the lessee either stat - 1 Rich - 3 - 
 continued to pay rent, or he did not. In the 
 former case, the feoffment and fine would be 
 inoperative as between the lessor and lessee 
 without disturbing the term ; and in the lat- 
 ter, the lessor would suffer the injury by his 
 own negligence. 
 
 In all cases of this kind, no fraud is in- 
 tended against the person in reversion. It is 
 a mere contrivance to convert, during the 
 term, the tenure or nature of the property 
 into an estate of freehold, as between the ter- 
 mor, and those claiming under him, either 
 for the purpose of family arrangements, or 
 for qualifications, which an estate of freehold 
 may confer. The practice of creating a free- 
 hold by disseisin in the way above mentioned, 
 and of preserving the term, is of the most 
 ancient date, and it never had been, to my 
 knowledge, questioned before the case, which 
 I have stated. It would be dangerous to re- 
 fine upon these notions of supposed fraud, 
 because, by introducing variations in the 
 system, the law would become inconsistent 
 with itself, and hazardous in its application. 
 
 If A. B. having acquired an estate wrong- 
 fully, with positive notice of the right of C. D. 
 to it, levies a fine with the avowed intention
 
 44 Uses and Trusts before [chap. I. 
 
 sect. vi. of destroying C. D.'s right by non-claim on 
 The operation i\ ie £ ne it would be difficult to conceive a 
 
 and enectof the 
 
 stat. i Rich. 3. case f a more direct moral fraud; and yet 
 
 I have never heard, that such a fine has been 
 considered void by reason of the fraud. 
 
 It has been suggested, that by assigning 
 the term to a trustee for the disseisor, the 
 lessee acknowledges by way of attornment 
 the reversion to be in a stranger, which, ac- 
 cording to sir Edward Coke (Co. Litt. 252. 
 a.), is an act of forfeiture; but the statute 
 
 II Geo. 2. c. 19. s. 11. makes attornments to 
 strangers absolutely void ; and sir Edward 
 Coke, in the place above-mentioned, ex- 
 pressly states, that " an attornment in pais 
 " worketh no forfeiture." 
 
 But to resume the subject, the judges in 
 the above case (Goodtitle v. Jones) seem to 
 consider the statute 1 Rich. 3. as applicable 
 to certain cases, which may now occur. The 
 words of Mr. justice Lawrence are, " With 
 " regard to the statute 1 Rich. 3. it does not 
 " seem to me to be applicable to this case. 
 " The legislature, in passing that act, only in- 
 " tended, that where a person, having an es- 
 " tate in possession, conveyed it to a trustee 
 " to his own use, and afterwards conveyed it 
 " to a purchaser, he should not set up the es- 
 " tate in the cestuique trust (trustee) against 
 " the purchaser : that is, that he should not
 
 chap. i.J Stat. 27 H. 8. c. 10. 45 
 
 " take advantage of his own fraud, and say, sect. vi. 
 " that the conveyance to the purchaser was The operation 
 
 ^ * and effect of the 
 
 "defective on account of the legal estate stat - * Rich - 3 - 
 " not being in him, but being in his trustee." 
 
 In Blake v. Foster a , Mr. justice Lawrence 
 also observed, that although the statute 
 1 Rich. 3. did not apply to the case of Good- 
 title v. Jones, before mentioned, " on further 
 l< consideration the court were of opinion, 
 " that it extended to other cases." 
 
 I have not, upon the most attentive consi- 
 deration, been able to discover any case, to 
 which the statute 1 Rich. 3. is now appli- 
 cable. 
 
 Previously to the statute of uses, property 
 was divided into use and possession ; and in all 
 cases where both the use and possession were 
 united in one person, he was complete owner 
 of the legal and beneficial interest, to which 
 united interests the statute of 1 Rich. 3. could 
 not by any means extend. Since the statute 
 of uses, 27 Hen. 8. if an estate be conveyed 
 to A. and his heirs, to the use of B. and his 
 heirs, in trust for C. and his heirs, the pos- 
 session or legal estate is vested by virtue of 
 the statute in B. : but the use limited to B. 
 was the use to which the statute of 1 Rich. 3. 
 applied ; and the statute of uses, by convert- 
 er m Rep. 487. 494.
 
 40 Uses and Trusts before [chap. i. 
 
 Sect. vi. ing the use into a legal estate, has virtually 
 The operation deprived the statute 1 Rich. 3. of the interest, 
 
 and effect ot (lie * 
 
 stat. i Rich. 3. upon which it operated 1 . The trust declared 
 for C. was an interest unknown before the 
 statute of uses. 
 
 Thesame observation will apply to the case 
 of a conveyance unto, " and to theme of" B. 
 and his heirs, in trust for C. and his heirs : 
 for, although in this case the legal estate is 
 not vested in B. by virtue of the statute of 
 uses, the use to which the statute 1 Rich. 3. 
 applied, is limited to B. ; and by the union 
 of the use and possession in him, he has 
 every legal and beneficial interest known be- 
 fore the statute of 1 Rich. 3. That statute 
 cannot fairly be applied toa fiduciary interest, 
 created subsequently to it, in consequence of 
 the constructive operation of the statute 
 27 H. 8. 
 
 The remaining case, to be considered, is 
 the special trust before noticed. A convey- 
 ance is made to A. and his heirs, without any 
 express declaration of the use, upon trust, or 
 to the intent, that he shall convey to B. ; or 
 to the intent, that he shall be a tenant to the 
 praecipe for suffering a common recovery ; or 
 to the intent, that he shall reconvey to the 
 
 a This point is properly of Uses and Trusts, 67. to 
 suggested by Mr. Sugden whose note I must beg to 
 in his edition to Gilb. Law refer.
 
 111.. 
 
 chap. I.] Stat. 27 H. 8. c. 10. 47 
 
 grantor. In all these cases, a seisin is trans- sict.vi. 
 ferred to B. by the course of the common The °P eration 
 
 and effect oft? 
 
 law ; and as the special trust or intent must statlRich 
 necessarily prevent the use from resulting to 
 the grantor, the grantee must have a com- 
 plete legal estate without the aid of, and un- 
 affected by, the statute of uses 27 H. 8. 
 That statute uses the word trust, as well as 
 use, and assisted by the former word, it may 
 extend to beneficial interests, not within the 
 statute 1 Rich. 3. ; as for instance, to the 
 trust declared upon the estate of tenant for 
 life ; and as it is conceived, to the use or 
 trust declared upon the seisin of tenant in 
 tail. But there is no ground to contend, 
 that the stat. 1 Rich. 3. which adopts the 
 word " use" only, can extend to any fidu- 
 ciary interest not executed at this time by 
 the statute of uses : that the word use in the 
 statute 1 Rich. 3. should have a more ex- 
 tensive operation, than in the statute 27 
 Hen. 8. 
 
 The practical consequences, would be ex- 
 tremely injurious, if special trusts of this kind 
 were considered within the stat. 1 Rich. 3. 
 Thus, if a tenant in tail conveyed for the 
 purpose of making a tenant to the praecipe 
 for suffering a recovery, which recovery when 
 suffered should enure to the use of himself in 
 fee ; he might, by inadvertently conveying 
 the freehold previous to suffering the reco-
 
 48 Uses a?ul Trusts before [chap. i. 
 
 sect. vi. very, , render such recovery inoperative. 
 The operation Other cases might be produced of a similar 
 
 and effect of the ° * 
 
 stat. i Rich. 3. nature. 
 
 It remains to be observed, that by the sta- 
 tute of 50 Ed. 3. c. 6. the special trust there 
 noticed, was subject to an execution by a cre- 
 ditor of the cestuique trust ; but the estate 
 of cestuique use was not extendible till the 
 19 H. 7. c. 15. From this it appears, that the 
 legislature did not consider the use and spe- 
 cial trust to be the same. 
 
 oftheahena- (3.) Perkins says f , " If cestuique use be 
 
 tion of cestui- _ . , - 
 
 que use in re- " of a reversion, he may grant the same as 
 " well as if he were in possession, and that 
 " by the statute of Richard 3. made in the 
 " first year of his reign, cap. 1." But Perkins, 
 in this instance, cites no authority in support 
 of his assertion, and he is clearly wrong. 
 His position is contradicted by the determi- 
 nation in Delamer's case g , in which it was 
 decided, that the statute only intended to 
 give the present possessor of the use a power 
 of alienation, and did not extend to those in 
 remainder or reversion 1 '. Upon the same 
 
 f Perk. s. 98. Perkins is the statute 27 Hen. 8. See 
 
 also wrong (as the autho- Perk. 537. 
 
 rities before cited prove), & Plowd. 348. 350. 1 Co. 
 
 when he asserts, that te- 128. a. b. 
 
 nant in tail, for life, or for h Bro. Feof. al. Uses pi. 
 
 years, could stand seised 44. B. N. C. 75. 
 to an express use before
 
 chap. I.] Stat. 27 if. 8. c. 10. 49 
 
 principle, the statute did not extend to ces- Th f operation 
 
 r ■ and enect of the 
 
 tuique use, who had only a naked right to stat i Rich. s. 
 the use, the establishment of which depend- 
 ed upon the entry of his feoffees 1 . But if 
 the feoffees to uses had been disseised, and 
 cestuique use had released to the disseisor; 
 or if the disseisor had enfeoffed cestuique use, 
 who had enfeoffed a stranger: in either case, 
 the entry of the feoffees was barred k . 
 
 (4.) Cestuique use, by this statute, might ofieasesby 
 
 v x . cestuique use m 
 
 have made a lease for years, rendering rent, fee. 
 for which he might have brought his action, 
 but could not have avowed 1 : and a reserva- 
 tion of rent by cestuique use, would have 
 carried it to the heir, although not particu- 
 larly named for that purpose" 1 . But notwith- 
 standing cestuique use was enabled to make 
 a lease for life or years, the reversion was 
 still in the feoffees, who might have brought 
 an action notwithstanding the want of pri- 
 vity". 
 
 (5.) Cestuique use could not devise the of devises by 
 
 „. . „, . cestuique use. 
 
 lands by the equity of 1 Kicnard 3°. 1 his con- 
 
 * Plowd. 351. Gilb. Uses, " cestuique use in fee make 
 
 27, 28. " a gift in tail, of whom 
 
 k Plowd. 351, 352. " shall the tenant in tail 
 
 1 27 Hen. 8. 13. Bro. " hold ? Deinshil. Coinm 
 
 Feof. al. Uses, pi. 6. " me semble de nulluy. 
 
 m Ibid. pi. 18. " Fitzh. Bien dit, par ma 
 
 u Year Book 5 Hen. 7. " foi, il estcler q'il tieut de 
 
 5. b. See the Year Book M les feoffees." 
 
 27 Hen. 8. 13, b. " If ° Dy. 74. a. 143. a. 
 
 VOL. I. E
 
 50 Uses and Trusts before [chap. i. 
 
 Sect. vi. struction was adopted for obvious reasons. 
 The operation Although the statute established the legal 
 
 and effect of the ° _ ° 
 
 stat. i Rich. 3. conveyances of cestuique use, neither the 
 words, nor the equity of it enabled him to 
 convey the possession of his trustees by an 
 instrument at that time, not applicable to the 
 transfer of real property : for lands before 
 the statute 32 Hen. 8. were not devisable. 
 
 where cestui- (6.) It was also said, that if a lord, or a 
 
 que use was al- . 1 . 
 
 so the lord or grantee of a rent-charge, had been also ces- 
 ciiarge!° tuique use of the land, and after the statute 
 of 1 R. 3. cestuique use had made a feoffment 
 in fee; although the land passed from the 
 feoffees, and his feoffment was warranted by 
 the statute, yet the seignory or rent-charge 
 was extinguished . And further, it was de- 
 termined, that the land of cestuique use was 
 bound by his statute merchant, statute staple, 
 and by elegit, by the statute 1 Rich. 3 P . 
 
 sect. vn. VII. But to proceed in the historical ac- 
 
 The history of count of uses : Richard the third, when duke 
 
 uses continued r g~,j 
 
 to 23 Hen. 8. ol (jloucester, had frequently been made 
 feoffee to uses. Now as the king could not 
 be seised to a use, upon the assumption of 
 the crown, Richard would have held the lands 
 discharged of the uses. Therefore, as Sir 
 
 ° Co. Litt. 52. a. Gilb. 6. Bro. Feof. al. Uses, p!. 
 Uses, 31. 25. 
 
 p Year Book 7 Hen. 7.
 
 chap. I.] Stat. 27 H. 8. c. 10. 51 
 
 William Blackstone observes'', to obviate so Sect.vii. 
 notorious an injustice, an act of parliament 1 " The hist0 . r y of 
 
 1 uses continued 
 
 was immediately passed, which ordained, that to23Hen - 8 * 
 where he had been so enfeoffed, jointly with 
 other persons, the land should vest in the 
 other feoffees, as if he had not been named ; 
 and that where he stood solely enfeoffed, the 
 estate itself should vest in cestuique use, in 
 like manner as he had the use. 
 
 The first act of parliament, which passed 
 in the succeeding king's reign, related to 
 uses . The statute 1 Hen. 7. made a for- 
 medon maintainable against the pernors of the 
 profits of land enfeoffed to uses. It also 
 allowed the tenant in the same action to have 
 
 « 2 Com. 332. 
 
 r 1 Rich. 1. c. 5. Those 
 lands, whereof the king 
 was enfeoffed jointly with 
 others to the use of the 
 feoffer, shall be in his co- 
 feoffees. 
 
 c " First, that where di- 
 " vers of the king's sub- 
 jects having cause of ac- 
 " tion by formedon in the 
 " descender, or else in the 
 " remainder, by force of 
 " any tail for lands and te- 
 f nements, be defrauded 
 *' and delayed of their said 
 " actions, and oftentimes 
 " without remedy, because 
 " of feoffments made of the 
 " same lands and tenements 
 " to persons unknown, to 
 *• the intent that the de- 
 " mandant should not 
 " know, against whom they 
 E 
 
 " shall take their actions ; 
 " it is ordained, that the 
 " demandant in every such 
 " case have his action 
 " against the pernor or per- 
 " nors of the lands, &c. 
 '* demanded, whereof any 
 " person or persons had 
 " been enfeoffed to his or 
 " their use; and the same 
 " pernor or pernors named 
 " as tenant or tenants in 
 " the said action, have the 
 " same vouchers, and their 
 " lien thereupon, aid pray- 
 " er, and all other advan- 
 " tages, as the same pernor 
 " or pernors should have 
 " had, if they were tenants 
 " indeed, or as their feof- 
 " fees should have had, if 
 " the same action had been 
 " conceived against them," 
 &c.
 
 52 Uses and Trusts before [chap. i. 
 
 Sect. vii. aid prayer, voucher, age, and other advan- 
 
 Thc history of taS^S. 
 uses continued ~ 
 to 23 Hen. 8. 
 
 This statute, which gave a formedon only 
 by express name against cestuique use, was 
 construed to extend to a scire facias to ex- 
 ecute an estate tail in remainder by equity d . 
 But in the construction of this act, it was 
 held in a case 6 , where a scire facias was 
 brought against the pernor of the profits, 
 that the pernor should not vouch ; for it 
 should be intended in such action, in which 
 he might vouch : and that the words of the 
 act did not alter the law of vouchers, and 
 give to the pernor any new voucher. 
 
 Among the inconveniences, which attend- 
 ed the introduction of uses, it was found, that 
 lords lost the benefit of wardship; and, there- 
 fore, by a statute 4 Hen. 7. c. 17. the sta- 
 tute of Marl bridge was confirmed; and it 
 was also provided, that the heir of cestuique 
 use of lands held by knight service, being 
 within age, should be in ward ; and being of 
 full age, should pay relief. On the contrary 
 for the benefit of the heir of cestuique use 5 
 the same statute provided, that he should 
 have an action against his guardian commit- 
 ting waste. 
 
 d 1 Co. 131. b. e 11 Co. 62. b.
 
 chap. i.J Stat. 27 H. 8. c 10. 53 
 
 By the 19th Hen. 7. c. 15. the lands of ces- Sect. vii. 
 tuique use were made subject to execution Tllc hist0 . r y °f 
 
 *■ ° uses continued 
 
 for his debt, by judgment, recognizance, to23Hen - 8 « 
 
 statute merchant, and of the staple. The 
 
 lands of cestuique use holden in socage, were 
 
 also made liable to satisfy the lord his relief, 
 
 heriot, and other duties. Cestuique use also 
 
 was allowed to have the same advantages 
 
 he might have had, if he had been tenant of 
 
 the land. And, lastly, the lands of cestuique 
 
 use, being a bondman, were made seizable 
 
 by the lord. 
 
 VIII. We have seen, that by the statute sect. viii. 
 of 15 Rich. 2. c. 5. lands conveyed to the of the statute 
 
 . IT 23 HeB - 8 ' aIld 
 
 use oi religious houses, or bodies corporate, the construction 
 were amortized by license from the crown. 
 But that statute did not extend to convey- 
 ances in trust for parish churches, chapels, 
 churchwardens, companies, fraternities, &c. 
 erected by common assent, and not being bo- 
 dies corporate. Now these alienations were 
 as prejudicial to the lords, as alienations in 
 mortmain : for they thereby lost their wards, 
 heriots, reliefs a , &c. To remedy this mis- 
 chief the statute of 23 Hen. 8. c. 10. was 
 made. It recites, " That by reason of feoff- 
 " ments made of trust of manors, &c. to the 
 " use of parish churches, chapels, church war- 
 " dens, guilds, fraternities, commonalties, 
 
 1 l Co. 23. b. 
 e 3
 
 54 Uses and Trusts before [chap. i. 
 
 Sect. viii. " companies, or brotherhoods, erected or 
 Of the statute " made of devotion, or by common assent of 
 
 23 Hen. 8. and . . 
 
 the construction << the people, without any corporation, and to 
 
 thereof. . . . 
 
 " the uses and intents to have obits perpetual, 
 "or any continual service of a priest for ever, 
 "&c. or to any other like uses and intents, 
 " there groweth to the king our sovereign 
 " lord, and to other lords and subjects of the 
 "realm, the same like losses and inconve- 
 " niences, and is as much prejudicial to them, 
 " as doth and is in case where lands are alien- 
 "ed in mortmain: be it therefore enacted, 
 "That all and every such uses, intents, and 
 " purposes, of what name, nature, or quality 
 " the same shall be called, &c. shall be ut- 
 "terly void ; and if any person, in default of 
 "this statute, do bind their heirs, &c. that 
 " then every such pain, penalty, craft, co- 
 lour, and every other thing, &c. shall be 
 '' utterly void : and that this statute shall be 
 " always interpreted, &c. most beneficially to 
 "the destruction of such uses, &c. and of 
 "all other like uses and intents." 
 
 I shall make a few observations on this 
 statute. — In the first place, it was made to 
 prevent conveyances of land, &c. in trust 
 for superstitious purposes, such as to pray 
 for souls supposed to be in purgatory; but 
 it was not intended to prevent alienations 
 in trust for good and charitable purposes; 
 such as finding of a preacher, maintenance
 
 chap. I.] Stat. 27 H. 8. c. 10. 55 
 
 of a school, relief and comfort of maimed Sect.viii. 
 soldiers, sustenance of poor people, repara- °/ the statute 
 tion of churches, highways, bridges, cause- th e construction 
 
 , thereof. 
 
 ways, discharging of poor inhabitants of a 
 town of common charges, for making of a 
 stock for poor labourers in husbandry, and 
 poor apprentices, and for the marriage of 
 poor virgins, and other like charitable uses ; 
 for, as it has been properly observed, " no 
 " time has been so barbarous as to abolish 
 " learning and knowledge, nor so uncha- 
 " ritable as to prohibit relieving the poor ." 
 
 2dly. This act did not make the convey- 
 ance itself, void, nor did it give the lord any 
 title to enter for mortmain (like the 15 Rich- 
 ard 2. c. 5.) : but it made the use void. 
 Therefore if the feoffment had been within 
 this statute, the feoffees (if no consideration 
 had been expressed) would have stood seised, 
 notwithstanding the declaration of uses, to 
 the use of the feoffor and his heirs ; but if 
 there had been a consideration, though 
 merely nominal, the use would have vested 
 in the feoffees d . 
 
 IX. I have now noticed all the statutes, sect. ix. 
 which I am aware of, relating to uses, pre- The requisites to 
 
 ^ be observed in 
 
 viouslv to the statute of 27 Hen. 8. c. 10. raising uses. 
 
 1 Co. 24. a. 26. a. torney General v. Whoi- 
 
 d 1 Co. 24. a. See At- wood, 1 Ves. 536. 
 
 E 4
 
 56 Uses and Trusts before [chap. i. 
 
 Sect. ix. These statutes all tend to consider cestuique 
 The requisites use as the real owner of the land ; and indeed 
 
 to be observed 
 
 in raising uses, he was made completely so by the statute 
 27 Hen. 8. c. 10. But it will be necessary, 
 in this place, to consider the learning of 
 uses before that statute was enacted. Uses 
 had undergone many refinements ; and al- 
 though several acts were passed to prevent 
 the injustice, which these refinements pro- 
 duced, yet none of them were found effectual 
 to remedy the evil. 
 
 I shall now consider the requisites to be 
 observed in raising uses. 
 
 a person capa- (1.) There should have been a person or 
 Sfsed toTuse! 8 persons capable of standing seised to a use. 
 Generally every common person not incapa- 
 citated to take, by way of grant, could stand 
 seised to a use: and, therefore, a feme covert, 
 or an infant, might have stood seised to a 
 use 8 . 
 
 A use was before described to be a trust 
 or confidence, which was not issuing out of 
 land, but as a thing collateral, annexed inpri- 
 vity to the estate, and to the person touching 
 the land. It follows from this explanation of 
 a use, that whenever the legal estate vested in 
 a person, in whom the confidence of person, or 
 
 1 Ba. Uses, 58. Bro. Feof. al. Uses, p. 51. Shep. T. 516.
 
 chap. I.] Stat. 27 H. 8. c. 10. 57 
 
 •privity of estate failed, the use was either de- Sect. ix. 
 stroyed, or for a time suspended. T1 ": requisites 
 
 ' *■ to be observed 
 
 in raising uses. 
 
 Therefore, a lord by escheat, or of a vil- As toprivityof 
 lein, could not stand seised to a use ; because 
 the title of the lord accrued to him either by 
 reason of the seignory of the land, or of the 
 ■villein ; which title was higher than the use, 
 or confidence, and therefore could not be 
 subject to it. And the same rule applied to 
 a lord, who entered for mortmain, or who re- 
 covered by a cessavit, &c. ; for his title was 
 paramount to the use b . 
 
 Tenant by the curtesy could not stand 
 seised to a use ; for he was in by the act of 
 law in consideration of marriage, and was 
 not in in privity of estate . And it seems, 
 by the better opinion, that a tenant in dower 
 could not stand seised to a use d ; and that for 
 the same reason. This point, however, has 
 been doubted by Gilbert, though he seems to 
 acquiesce in it in another place 6 . So nei- 
 ther could a disseisor, abator, nor intruder 
 stand seised to a use, although he had noticed 
 So if a feoffee to uses had bound himself in 
 a statute, &c. and the conuzee had taken out 
 
 b 1 Co. 122. a. 139. b. and the cases collected in 
 
 B. N. C. 60. the notes to pi. 15. 16. 
 c 1 Co. 122. a. e Gilb. Uses, 11. 171. 
 
 d Ibid. See 22 Via. 184. f 1 Co. 122. a. 139. b.
 
 58 Uses and Trusts before [chap. i. 
 
 Sect. ix. execution thereupon, he would have held the 
 
 The requisites | anc | discharged of the uses g . 
 
 to be observed ° 
 
 in raising uses. 
 
 Confidenceof Although there had been privity of estate, 
 
 person. y e t jf confidence, either expressed, or implied, 
 
 failed in the person, the use was destroyed, 
 or suspended. Thus, if a feoffee to uses had 
 for a valuable consideration enfeoffed another, 
 who had no notice of the former uses, there 
 was privity of estate, but no confidence in 
 the person of the second feoffee ; and con- 
 sequently the use was gone h . If the feoff- 
 ment had been made without consideration to 
 a person, who had no notice 1 ; or upon a va- 
 luable consideration to one, who had notice k ; 
 in each case the privity of estate, and con- 
 fidence in the person, were preserved ; and 
 the feoffee took the estate subject to the for- 
 mer uses. 
 
 If there had been tenant for life, remainder 
 in fee to the use of another, and the tenant 
 for life had made a feoffment to one, who 
 had notice; the feoffee could not have stood 
 seised to the former use ; for that use was 
 aunexed to one estate, and he was in of 
 another 1 . 
 
 « Bro. Feof. al. Uses, pi. ' 1 Co. 122. b. 
 
 10. k Plowd. 351. Year Book 
 
 h 1 Co. 122. b. Abbot 5 Ed. 4. 7. 
 
 of Bury v. Bokenham, Dy. ' 1 Co. 122. b. 
 8. 33 Hen. 6. 16.
 
 chap. I.] Stat. 27 H. 8. c. 10. 59 
 
 The king could not stand seised to a use ; Sect. ix. 
 and therefore if lands had been conveyed to Th , e re q u ' s ' ,te * 
 
 ^ to be observed 
 
 the king and a subject, pour term de leur vies, in raisinguses. 
 to certain uses, such uses were void as to a 
 moiety of the lands™. Neither could the 
 queen be a feoffee to uses". 
 
 A corporation, abbe, mayor, commonalty, 
 and persons attainted , were under the like 
 disability. So in a case, where an alien and 
 another person were enfeoffed to uses, the 
 crown became entitled to a moiety of the land 
 discharged of the uses p . 
 
 I have already stated the grounds and au- 
 thorities, upon which I conclude, that neither 
 tenant in tail, for life, nor years, could stand 
 seised to a use. It must be added, that an 
 occupant could not stand seised to a use q . 
 
 (2.) There should have been a person ca- a person ca- 
 
 , , p . . , , . „ , pable of receiv- 
 
 pable oi receiving or taking the use. in gor taking the 
 
 m Year Book 7 Ed. 4. 22 Vin. 182, 183. and the 
 
 17. Ba. Uses, 56, 57. Berk- several cases collected in 
 
 ley's case. Plowd. 238. (e). note to pi. 6. as to a corpo- 
 
 See the cases collected in ration, 
 
 notes to pi. 4. in 22 Vin. p King v. Boys, Dy. 283. 
 
 182. b. See cases collected in 
 
 n Bac. Uses, 57. note to pi. 18. in 22 Vin. 
 
 B. N. C. 60. Bro. Feof. 184. 
 
 al. Uses, 40. 1 Co. 122. a. « Bro. Feof. al. Uses, pi. 
 
 Ba. Uses, 57, 58, 59. Dy. 10. 22 Vin. 183. pi. 7. 
 
 8. b. See Halfpenny's case, The case in Hard. 468. was 
 
 Year Book 14 Hen. 8. 8. a. a trust, and not a use.
 
 60 Uses and Trusts before [chap. i. 
 
 Sect. ix. As to this point it may be observed, that 
 
 The requisites a ll persons capable of taking a conveyance 
 
 to be observed « 
 
 in raising uses, of the lands, might have taken the same es- 
 tate by way of use ; therefore the limitation 
 of a use to a corporation was good, if a li- 
 cense for that purpose had been obtained r . 
 So the king could have been cestuique use by 
 matter of record ; and therefore if a fine had 
 been levied, or recovery suffered, and the use 
 declared to the king by deed iurolled, the 
 king would have been entitled as cestuique 
 use, though he was not a party to the decla- 
 ration". But it was necessary, that both the 
 declaration and conveyance should be mat- 
 ter of record. 
 
 The limitation of a use to the parishioners 
 of any particular place was void 5 . 
 
 Whether an alien could have been cestui- 
 que use was an undetermined point ; some 
 holding, that a use, being merely in con- 
 science, equity might have directed the exe- 
 cution of it for the benefit of the alien 1 ; whilst 
 others contended, that an alien could not 
 have compelled the feoffees to execute the use ; 
 it being contrary to the policy of the law of 
 
 r Shep. T. 509. ■ 12 Hen. 7. 28. a. Bro. 
 
 r Bac. Uses, GO. Feof. al. Uses, pi. 29. Al- 
 
 s Year Book 13 Hen. 7. len, 14. Vide Preamble to 
 
 9. b. Bro. Feof. al. Uses, the Stat. 27 Hen. 8. c. 10. 
 
 29. Shep. T. 509. See 22 
 
 Vin. 247. (E. a.)
 
 chap, i.] Stat. 27 H. 8. c. 10. 01 
 
 the kingdom, that an alien should plead or Sect.ix. 
 be impleaded touching lands in any of our 7 h ^ re i uisiles J 
 
 r ° * to be observed 
 
 COUrts". in raising uses. 
 
 (3.) There should have been either a con- a consideration 
 
 . . l i « or declaration of 
 
 sideration to raise, or a declaration of, the use. the use. 
 Indeed, where an express declaration of the 
 use was made on the feoffment, a pecuniary 
 consideration, or the want of it, could not 
 vary the use so declared w . Therefore, if A. 
 had delivered money to J. S. for the purpose 
 of purchasing lands for him, and J. S. had 
 purchased them to his oivn use, no use could 
 have resulted to, or be implied in, A\ So if 
 
 A. in consideration of 100/. paid to him by 
 
 B. had enfeoffed B. and C. ; the declaration 
 of the use to B. and C. would have been good, 
 notwithstanding the payment of the money 
 by B. only y . 
 
 When no declaration of the use was made, 
 the consideration paid by the feoffee or gran- 
 tee created a use for him. If neither a con- 
 sideration had been paid or reserved, nor a 
 declaration made, the use would have resulted 
 to the grantor 2 , and he would have been in 
 
 u Gilb. Uses, 43. Allen, Calthorp's case, Moor, 102. 
 
 15, 16. Styles, 40. Ba. 1 Co. 176. b. 
 
 Uses, 43. See 22 Vin. x Bro. Feof. al. Uses, 40. 
 
 247. and cases collected in See infra, chap. 3. as to 
 
 note to pi. 1. See post, trusts. 
 
 whether an alien may be y Same's case, 2 Roll. A b, 
 
 cestuique trust at this day. 791. 
 
 w Perk. s. 537. See ■ Perk. 533.
 
 62 Uses and Trusts before [chap. i. 
 
 sect. ix. as of the old use. It was therefore deter- 
 The requisites m ined, that if a man, seised ex parte materna, 
 
 to be observed £ 
 
 in raising uses. h a( ] made a feoffment, levied a fine, or suffer- 
 ed a recovery without having declared the 
 use, and without consideration, the use would 
 have resulted to him and his heirs on the part 
 of his mother". This observation will apply 
 to the conveyance by lease and release, as I 
 shall endeavour hereafter to explain. So if 
 there had been two joint tenants, the one in 
 fee, and the other for life, and they had le- 
 vied a fine without having declared the use, 
 it would have resulted to them according to 
 their estates or interests in the land b . In like 
 manner, if A. seised in fee of an estate, had 
 joined with B. in levying a fine, without a de- 
 claration of the use, it would have resulted 
 to A. 07ily, and his heirs . 
 
 It should seem, that any pecuniary consi- 
 deration, however trifling it might have been, 
 or any rent reserved, however inconsiderable, 
 would have been sufficient to raise the use to 
 the feoffee, conuzee, or recoveror d . 
 
 The above remarks applied only to con- 
 veyances in fee. The conveyance or creation 
 
 a 1 Co. 100. b. Har. Co. b Beckwith's case, 2 Co. 
 
 JLitt. 12. b. N. 2. 2 Salk. 58. a. 
 
 591. 3 Lev. 406. 2 Roll. c Ibid. 
 
 Ab. 780. 2 P. W. 139. See d Porter's case, 1 Co. 
 
 22 Vin. 184. pi. 4, 5. and 24. a. 2 Roll. Ab. 787, 788. 
 the cases collected in the 
 notes.
 
 chap. I.] Stat. 27 H. 8. c. 10. 63 
 
 of estates tail, for life, or years, (so far as re- 6ect - ix 
 lated to the doctrine of uses), depended upon The requisites 
 
 ' * r to be observed 
 
 different principles 6 . in raising uses. 
 
 In respect of grants of incorporeal pro- 
 perty, it must be noticed, that if a man 
 seised of a rent-charge in fee, had made a 
 conveyance of it, without having declared 
 the use, and without any consideration, the 
 grantee would have stood seised to the use of 
 the grantor and his heirs f . But if the pro- 
 prietor of lands had granted a rent-charge 
 thereout unto a stranger, the law would not 
 presume, that such grant was intended for 
 the grantor's use, though no use had been de- 
 clared, nor consideration paid 5 ; and upon 
 a conveyance of a seignory or rent in tail, 
 for life, or for years, without declaration of 
 the use, and without consideration, the gran- 
 tee would have been seised to his own use\ 
 
 (4.) There should have been a sufficient a substance or 
 
 , .. . . hereditament. 
 
 substance or hereditament, out of which the 
 use might have arisen. Thus, all local inhe- 
 ritances, as lands, houses, rents in esse, re- 
 versions, remainders, liberties, and fran- 
 chises, might have been conveyed to uses. 
 But it was different as to personal inherit- 
 ances, such as annuities. So, it was said, 
 
 e See ante 30. et seq. e Ibid. 631. 
 
 f Perk. s. 530. " Ibid. 537.
 
 04 Uses arid Trusts before [chap. |< 
 
 Sect. ix. t\ ia t uses could no t have been raised out of 
 
 tob/obscrved sucn things, qua? ipso usuconsummitur, as com- 
 
 w raising uses. monS) ways in gross, or authorities granted to 
 
 a man and his heirs to hunt in a park, chase, 
 
 or forest 1 . 
 
 Sect. x. x. I shall now examine the properties of 
 
 The properties tne use 
 of a use. 
 
 it was descend- (\\ It was descendible according to the 
 
 ible. K ' b 
 
 rules of the common law respecting estates of 
 inheritance* ; the courts of equity having, 
 in this instance, adopted the maxim, cequi- 
 tas sequitur legem. There might have been 
 a possessio fratris of a use b ; though indeed 
 lord Bacon calls this a vulgar opinion ; 
 observing, that it meant nothing more, 
 than that the chancellor would consult with 
 the rules of law, where the intention of the 
 parties did not specially appear. The rule, 
 however, was certainly established in chan- 
 cery. 
 
 ' Wm. Jones, 127. heirs, although no express 
 
 a 2 Roll. Ab. 780. If a particular use was limited 
 
 man holds of the king be- to him. Sir John Hussey's 
 
 fore the statute of uses, and case, Bro. Nosme, pi. 1. 
 
 infeoffs others to his own 40. March. N. C. 87. Dy- 
 
 use during his life, with re- er, 133. pi. 6. See post, 
 
 mainder over in tail, re- ch. 2. s. 5. (2.) 
 
 mainder to his right heirs, b Year Book 5 Ed 4. 
 
 and dies : the reversion de- 7. b. 1 Co. 88. a. 121. b. 
 
 scends to the heir, Bro. Li- 4 Co. 22, a. Co. Litt. 10. 
 
 very, pi. 61. So if the ul- b. Dy. 10, 11. Plowd. 58. 
 
 timate limitation of the use c Bac. Uses, 11. 
 was to the grantor's right
 
 chap. I.] Stat. 27 H. 8 c. 10. G5 
 
 So the use of lands held in borough Eng- s *ct.x. 
 lish would have descended to the youngest Jf ie u P roperties 
 son, and that of gavelkind to all the sons d ; 
 and where there was a custom of a manor, 
 that the lands should descend to the eldest 
 daughter, in default of sons, it was deter- 
 mined, that the use should descend in like 
 manner 6 . 
 
 (2.) The use was devisable before the sta- Jt w *s dev '*- 
 
 v . able. 
 
 tute of wills. After the conquest a devise 
 could not operate upon the lands ; because, 
 by the common law the ceremony of livery 
 of seisin was necessary to the transfer of 
 them ; and because it was contrary to the 
 nature of a feud, that the feudatory should 
 dispose of it by will. But the courts of equity, 
 under the colour of allowing a devise of the 
 use, did in effect permit the legal interest in 
 the lands to be devised f . An infant however 
 was disabled from devising the use ? . 
 
 (3.) As cestuique use might have devised, it was alien- 
 so he might have aliened or transferred the a 
 use h ; and by the statute 1 Rich. 3. he might 
 have conveyed the legal estate. But it is ob- 
 
 d 2 Roll. Ab. 780. 1 Co. * See Year Book 21 Ed. 
 
 88. a. 4. 24. 2 Roll. Ab. 779. 
 
 e 2 Roll. Ab. 780. h Bro. Feof. al. Uses pi. 
 
 f See Wright's Ten. 172. 44. B. N. C. 75. Plowd. 
 
 174. ed. 17G8. Year Book 350. Bac. Uses, 16. 
 10 Hen. 7. 26. 27 Hen. 8. 
 7, 1 Co. 123. b. 
 
 VOL. I. F
 
 66 Uses and Trusts before [chap. i. 
 
 sect. x. servable, that in the case of a feme covert, a 
 The properties fi ne was necessary to pass her use 1 . 
 
 of a use. 
 
 cestuiqucuse (4.) But cestuique use, ill respect to the 
 
 in re r nor ad legal ownership of the land, had neither jus 
 in re, nor ad rem k . Therefore when in pos- 
 session, he was considered merely as tenant 
 by sufferance 1 . He could not bring an ac- 
 tion, avow, nor justify for damage faisant in 
 his own name™. When he made a lease pur- 
 suant to the statute 1 Rich. 3. the reversion 
 still continued in the feoffees, who might 
 have brought an action for waste, or have en- 
 tered for a forfeiture 11 . By force of the last- 
 mentioned statute, he might have granted 
 the herbage or corn, yet he could not have 
 taken them for his own use°. So his wife 
 was not dowable of the use p ; and the hus- 
 band of feme cestuique use could not have 
 his curtesy q . Cestuique use did not forfeit 
 
 5 Year Book 7 Ed. 4. 462. 463. In Doe v. Pott, 
 
 14. Doug. 710. the estate 
 
 k I Co. 121. b. W.Jones, of a mortgagor was consi- 
 
 127. Bac. Uses, 5. dered as a tenancy at will, 
 
 1 Year Book 15 Hen. 7. and as such capable of re- 
 
 2. 4 Ed. 4. 8. Bro. Feof. ceiving a surrender. But 
 
 al. Uses, 39. Plowd. 3. a. cont. Bac. 24. Sem. 
 
 (Basset v. Manxell.) See m Bro. Feof. al. Uses, pi. 
 
 22Vin. 286. pi. 2, 3. and 39. 13. b. 
 
 the cases collected iu the n Ibid. 26. Year Book 
 
 note to pi. 3. It should 5 Hen. 7. 5. 
 
 seem from Hard. 491. that • Bro. pi. 13. 5 Hen. 
 
 he was considered as tenant 7. 2. 
 
 at will, and might therefore p Perk. s. 349. 
 
 have taken a release; and i Ibid. 463. 1 Co. 123, 
 
 this seems to be the true b. 
 construction. See Litt. s.
 
 chap. I.] Stat. 27 H. 8. c. 10. 67 
 
 his lands for treason nor felony r ; and the sect.x. 
 use was not considered as assets in the hands T „ be p^pe^e* 
 
 of a use. 
 
 of the heir, nor executor, to satisfy credi- 
 tors 5 . 
 
 The several statutes before enumerated, 
 and the preamble of the statute 27 Hen. 8. 
 c. 10. point out other inconveniences attend- 
 ing* the above principle, that cestuique use 
 had no legal right nor title to the lands. 
 
 (5.) Cestuique use, indeed, might have Cestuique use 
 
 might have been 
 
 been sworn upon an inquest 1 : but this rule swo '» upon an 
 
 . . • . inquest. 
 
 was established under particular circum- 
 stances ; for, as sir Edward Coke observes, 
 at the time of making the statute 2 Hen. 5. 
 c. 3. the greater part of the lands in the king- 
 dom was held in use ; an event occasioned by 
 the unhappy controversy between the houses 
 of York and Lancaster. Now that statute 
 was made to remedy a mischief, which hap- 
 pened from the sheriffs having frequently re- 
 turned men of no understanding", and it 
 therefore provides, that he should return pro- 
 per men. The courts, therefore, for the ad- 
 vancement and expedition of justice, extend- 
 ed it (against the letter) to the cestuique use 
 of lands, and not to his feoffees. 
 
 15 
 
 r Jenk. Cent. 190. 
 
 * Co. Litt. 272. a. 
 
 Year Book 5 Ed. 4. pi. 
 
 u See Year Book 
 
 18. 
 
 Hen. 7. 13. 
 
 8 1 Co. 121. b. 
 
 
 ¥ 2
 
 (58 Uses and Trusts before [chap. i. 
 
 Sect.x. (6.) As to the feoffee, he was complete 
 
 The properties owner of the land at law. He performed the 
 
 of a use. . •/'iii v j 
 
 feudal duties*; his wife had dower x ; and 
 The feoffee was j^g es tate was subject to wardship, relief, &c. 
 
 complete owner. 
 
 He had power of selling the lands, and for- 
 feited them for treason or felony. In short, 
 he might have brought actions, and have ex- 
 ercised every kind of ownership over, or in 
 respect of, the lands y . 
 
 Uses differed in (7.) We have seen, that the use did, in 
 
 many instances . 
 
 from cases of some instances, ensue the nature of the land ; 
 
 as in cases of descent, and where it had been 
 
 declared, or resulted, to the grantor, or feoffor. 
 
 But, uses, as Bacon observes, differ in many 
 
 instances from cases of possession. Thus, by 
 
 the common law, warranty could not have 
 
 bound the right of a use, as it would have 
 
 done the right of possession 2 . There was no 
 
 necessity at common law for a consideration 
 
 to establish a deed, nor did notice constitute 
 
 covin : but it has already been explained, how 
 
 materially a conveyance to uses was affected 
 
 by the want of a consideration, or by notice. 
 
 In the case of possession, a rent out of land, 
 
 and the land itself, cannot stand together : 
 
 but it was otherwise in the case of a use. To 
 
 w See note 1. Butl. Co. y Dy. 9. b. Jenk. 190. 
 
 Litt. 271. b. and the several cases before 
 
 x Bro. Feof. al. Uses, pi. cited. 
 10. z Bac. Uses, 12.
 
 chap. i.J Stat. 27 H. 8. c. 10. 69 
 
 the above differences, mentioned by Bacon 1 , Sect.x. 
 I may add, that the word, heirs, was neces- T j ,e P ro P ert5es 
 
 * ' of a use. 
 
 sary at common law to create an estate in fee- 
 simple. But if a bargain and sale had been 
 made before the statute of uses, the bargainee 
 would have had an estate in fee in the use 
 without the word heirs b ; because the bar- 
 gainee having paid a valuable consideration, 
 the courts of equity would have directed the 
 use according to the intention of the parties. 
 So if an estate had been limited at common 
 law to a man, and to such a woman as he 
 should afterwards marry, the man would have 
 taken the whole ; but the limitation of the 
 use in the above manner would have been 
 good 13 . So if there had been a feoffment in 
 fee to the use of A. for years, with remainder 
 to the use of the right heirs of J. S. this 
 contingent remainder would have been good ; 
 for the feoffees remained tenants of the free- 
 hold 6 . 
 
 XI. Such then was the learning, and such The statute 27 
 
 .'..,. Hen. 8. c. 10. 
 
 the state of uses at the time, when it was 
 deemed expedient to pass the statute 27 Hen. 
 8. c. 10. commonly called the statute of uses. 
 They were attended, as the reader must have 
 remarked, with considerable inconveniences, 
 
 a See Bac. Uses, from 11 c Moor. 96. pi. 240. 
 
 to 18. d 1 Co. 101. a. Dy. 190. 
 
 b 1 Co. 100. b. Co. Litt. pi. 17, 18. 
 9. b. e 1 Co. 135. a. 
 
 F 3
 
 70 Uses and Trusts before [chap. i. 
 
 Sect. xi. and serious mischiefs ; and they had hitherto 
 The statute 27 baffled the partial attacks of the legislature. 
 
 Hen. 8. c. 10. r ° 
 
 It was now found expedient to apply some 
 effectual remedy to the evil ; and it is said, 
 that Henry the eighth, being displeased at 
 the loss of wardships, and at other injuries 
 done to him, complained to the judges of the 
 defect of the law in that respect ; and that 
 they hinted to him, " that if the possession 
 " might be joined to the use, all would go 
 " weir." This advice probably laid the 
 foundation of the statute of uses*. 
 
 Preamble. The statute recites, " Where by the com- 
 
 " mon laws of this realm, lands, tenements, 
 " and hereditaments be not devisable by tes- 
 " tament, nor ought to be transferred from 
 " one to another, but by solemn livery and 
 " seisin, matter of record, writing sufficient 
 " made bona fide without covin or fraud ; yet 
 " nevertheless divers and sundry imagina- 
 " tions, subtle inventions, and practices have 
 " been used, whereby the hereditaments of 
 " this realm have been conveyed from one 
 " to another by fraudulent feoffments, fines, 
 " recoveries, and other assurances, craftily 
 " made to secret uses, intents, and trusts ; 
 " and also by wills and testaments sometime 
 " made by nude parolx, and words sometime 
 " by signs and tokens, and sometime by 
 
 ' 2 Leon. 17, 18. c. 1. s. 1. in Ireland, is sirai- 
 
 * The 10 Car. 1. sess. 2. lar to the 27 Hen. 8. c. 10.
 
 chap. I.] Stat. 27 H. 8. c. 10. 71 
 
 " writing ; and for the most part made by Skct.xl 
 
 statute 
 8. c. 10. 
 
 " such persons as be visited with sickness, in £ he statute 27 
 
 r ' Hen. 
 
 " their extreme agonies and pains, or at such 
 " time as they have scantly had any good 
 " memory or remembrance ; at which times 
 " they being provoked by greedy and covet- 
 " ous persons, lying in wait about them, do 
 " many times dispose indiscreetly and unad- 
 " visedly their lands and inheritances ; by 
 " reason whereof, and by occasion of which 
 '* fraudulent feoffments, fines, recoveries, and 
 " other like assurances to uses, confidences, 
 " and trusts, divers and many heirs have been 
 " unjustly, at sundry times, disherited, the 
 " lords have lost their wards, marriages, re- 
 " liefs, harriots, escheats, aids pur fair fitz 
 " chivalier, 8$ pur file marier, and scautly 
 " any person can be certainly assured of any 
 " lands by them purchased, nor know surely 
 " against whom they shall use their actions, 
 " or execution, for their rights, titles, and 
 " duties ; also men married have lost their 
 " tenancies by the courtesy, women their 
 " dowers ; manifest perjuries by trial of such 
 " secret wills, and uses, have been commit- 
 " ted ; the king's highness hath lost the pro- 
 " fits and advantages of the lands of persons 
 " attainted, and of the lands craftily put in 
 " feofiments to the uses of aliens born, and 
 " also the profits of waste for a year and a 
 " day of lands of felons attainted, and the 
 " lords their escheats thereof; and many
 
 72 Uses and Trusts before [chap. i. 
 
 Sect. ix. " other inconveniencies have happened, and 
 The statute 27 » c ] a il v do increase among the kind's subjects, 
 
 Hen.8.c.l0. * . , , , • • i 
 
 " to their great trouble and luqiuetness, and 
 " to the utter subversion of the ancient com- 
 " mon laws of this realm : for the extirpating 
 " and extinguishment of all such subtle prac- 
 " tised feoffments, fines, recoveries, abuses, 
 " and errors heretofore used and accustomed 
 " in this realm, to the subversion of the good 
 " and ancient laws of the same, and to the 
 " intent that the kings highness, or any 
 " other his subjects of this realm, shall not 
 " in anywise hereafter, by any means or in- 
 " ventions be deceived, damaged, or hurt by 
 " reason of such trusts, uses, or confidences, 
 " it may please the king's most royal majesty, 
 " that it may be enacted by his highness, by 
 " the assent of the lords spiritual and tem- 
 " poral, and the commons in this present par- 
 " liament assembled, and by the authority of 
 " the same, in manner and form following, 
 ** that is to say, That where any person or 
 " persons stand, or be seised, or at any time 
 " hereafter shall happen to be seised, of and 
 " in any honours, castles, manors, lands, te- 
 " nements, rents, services, reversions, re- 
 " mainders, or other hereditaments, to the 
 " use, confidence, or trust of any other person 
 " or persons, or of any body politic, by rea- 
 " son of any bargain, sale, feofTment, fine, 
 " recovery, covenant, contract, agreement, 
 " will, or otherwise, by any manner of means
 
 chap. I.] Stat. 27 H. 8. c. 10. 73 
 
 " whatsoever it be; that in every such case Sect. xi. 
 " all and every such person and persons, and The statute 27 
 " bodies politic, that have, or hereafter shall „,. 
 
 r ' lhe possession 
 
 " have, any such use, confidence, or trust, in sha ! lbei ! lhim 
 
 ' J ' 3 or them that 
 
 " fee simple, fee tail, for term of life, or for have the use - 
 
 " years, or otherwise, or any use, confidence, 
 
 " or trust in remainder, or reverter, shall 
 
 <{ from henceforth stand, and be seised, deem- 
 
 " ed, and adjudged in lawful seisin, estate, 
 
 " and possession, of and in the same honours, 
 
 " castles, manors, lands, tenements, rents, 
 
 " services, reversions, remainders, and here- 
 
 " ditaments, with their appurtenances, to all 
 
 " intents, constructions, and purposes in the 
 
 " law, of and in such-like estates, as they had 
 
 " or shall have in use, trust, or confidence, of 
 
 " or in the same; and that the estate, title, 
 
 11 right, and possession, that was in such 
 
 a person or persons, that were or hereafter 
 
 " shall be seised of any lands, tenements, or 
 
 " hereditaments, to the use, confidence, or 
 
 " trust of any such person or persons, or of 
 
 " any body politic, be from henceforth clearly 
 
 " deemed and adjudged to be in him or them, 
 
 " that have or hereafter shall have such use, 
 
 " confidence, or trust, after such quality, 
 
 " manner, form, and condition, as they had 
 
 11 before in or to the use, confidence, or trust 
 
 " that was in them. 
 
 2. " That where divers and many persons s. 2. Convey- 
 " be, or hereafter shall happen to be, jointly different persons
 
 74 Uses and Trusts before [chap. i. 
 
 Skct. xi. « se i se( j f an( j m ail y lands, tenements, rents, 
 
 The statute 27 tt reversions, remainders, or other heredita- 
 
 Hen. 8. c. 10. ' ' 
 
 to the use of one " ments, to the use, confidence, or trust, of 
 or some of the,,,. « any of tnem tnat be s0 jointly seised, that 
 
 " in every such case, those person or persons 
 " which have or hereafter shall have any 
 " such use, confidence, or trust, in any 
 " such lands, tenements, rents, reversions, 
 " remainders, or hereditaments, shall from 
 " henceforth have, and be deemed and ad- 
 " judged to have only to him or them that 
 " have or hereafter shall have any such use, 
 " confidence, or trust, such estate, possession, 
 " and seisin of and in the same lands, tene- 
 " ments, rents reversions, remainders, and 
 " other hereditaments, in like nature, man- 
 " ner, form, condition, and course, as he or 
 " they had before in the use, confidence, or 
 " trust of the same lands, tenements, or he- 
 saving of the " reditaments : saving and reserving- to all 
 
 right of stran- , , ■ _. ... 
 
 gers. " and singular persons, and bodies politic, 
 
 " their heirs and successors, other than those 
 " person or persons which be seised, or here- 
 " after shall be seised, of any lands, tene- 
 ft ments, or hereditaments, to any use, con- 
 " fidence, or trust, all such right, title, entry, 
 " interest, possession, rents, and action, as 
 " they or any of them had or might have had 
 " before the making of this act. 
 
 Saving of the 3. ll And also saving to all and singular 
 
 right feoffees to . ... . 
 
 ti.eiiownuse. " those persons, and to their heirs, which be
 
 chap, i.] Stat. 27 H. 8. c. 10. 75 
 
 " or hereafter shall be seised to any use, all Sect. xi. 
 " such former riffht, title, entry, interest, The statute 27 
 
 ° ' /' ' Hen. 8. c. 10. 
 
 " possession, rents, customs, services, and ac- 
 " tions, as they or any of them might have 
 " had to his or their own proper use, in or to 
 " any manors, lands, tenements, rents, or 
 " hereditaments, whereof they be, or here- 
 " after shall be, seised to any other use, as if 
 " this present act had never been had nor 
 " made, any thing contained in this act to 
 " the contrary notwithstanding 1 *. 
 
 4. " And where also divers persons stand 
 " and be seised of and in any lands, tene- 
 " ments, or hereditaments, in fee simple or 
 " otherwise, to the use and intent that some 
 " other person or persons shall have and per- 
 " ceive yearly to them, and to his or their 
 " heirs, one annual rent of 10/. or more or 
 " less, out of the same lands and tenements, 
 " and some other person one other annual 
 " rent to him and his assigns, for term of life 
 " or years, or for some other special time, ac- 
 " cording to such intent and use as hath 
 " been heretofore declared, limited, and made 
 " thereof: 
 
 5. a Be it enacted therefore by theautho- 5 s. The exe- 
 
 .... * . , rr,, . , . cution of rents. 
 
 " nty aforesaid, 1 hat in every such case, the 
 
 b Upon this clause, see 245. 1 Mod. 107. See as 
 
 Ferrers v. Ferinor, Cro. to a feoffment made by a 
 
 Jac. 648. L Vent. 195. lord to his copyholder to 
 
 280. Cecil's case, 7 Co. the use of others, Ised's 
 
 19. b. 20. a. 2 Roll. Rep. case cited 7 Co. 39.
 
 76 Uses and Trusts before [chap. i. 
 
 Sect. xi. " same persons, their heirs and assigns, that 
 The statute 2? « have such use and interest, to have and per- 
 
 Hen. 8. c. 10. r 
 
 " ceive any such annual rents, out of any 
 "lands, tenements, or hereditaments, that they 
 " and every of them, their heirs and assigns, 
 " be adjudged and deemed to be in possession 
 " and seisin of the same rent, of and in such 
 "like estate, as they had in the title, interest, 
 " or use of the said rent or profit, and as if 
 " a sufficient grant, or other lawful convey- 
 " ance, had been made and executed to them, 
 " by such as were or shall be seised , to the 
 " use or intent of any such rent to be had, 
 " made, or paid, according to the very trust 
 " and intent thereof; and that all and every 
 " such person and persons as have or hereafter 
 " shall have any title, use, and interest, in 
 " or to any such rent or profit, shall lawfully 
 " distrein for non-payment of the said rent, 
 " and in their own names make avowries, or 
 " by their bailiffs or servants make conisances 
 " and justifications, and have all other suits, 
 " entries, and remedies, for such rents 1 , as 
 " if the same rents had been actually and 
 " really granted to them with sufficient 
 " clauses of distress, re-entry, or otherwise, 
 " according to such conditions, pains, or 
 " other things, limited and appointed upon 
 " the trust and intent for payment or surety 
 " of such rent. 
 
 c Dyer, 3G2. b. pi. 21. Bascawin and Herle v. 
 
 d See upon this head Cooke, 1 Mod. 223.
 
 chap, l.] Stat. 27 H. 8. c. 10. 77 
 
 <5. " And be it further enacted, by the an- Sect.xi. 
 u thority aforesaid, That, whereas divers per~ T|ie statute 27 
 
 / r Hen. 8. c. 10. 
 
 " sons have purchased, or have estate made 
 " and conveyed of and in divers lands, tene- 
 " nients, and hereditaments, unto them and 
 u their wives, and to the heirs of the hus- 
 " band, or to the husband and to the wife, 
 " and to the heirs of their two bodies be- 
 " gotten, or to the heirs of one of their bo- 
 " dies begotten, or to the husband and to 
 " the wife for the term of their lives, or for 
 " term of life of the said wife ; (2.) or where 
 " any such estate or purchase of any lands, 
 " tenements, or hereditaments, hath been, or 
 " hereafter shall be made to any husband and 
 " to his wife in manner and form expressed, or 
 " to any other person or persons, and to their 
 " heirs and assigns, to the use and behoof 
 " of the said husband and wife, or to the use 
 " of the wife as is before rehearsed, for the 
 " jointer of the wife ; (3.) that then, in 
 "every such case, every woman, married, 
 " having such jointer made, or hereafter to 
 " be made, shall not claim, nor have title to 
 " have any dower of the residue of the lands, 
 " tenements, or hereditaments, that at any 
 " time were her said husband's, by whom 
 " she hath any such jointer, nor shall de- 
 " mand or claim her dower of and against 
 " them that have the lands and inheritances 
 '.' of her said husband ; (4.) but if she have 
 " no such jointer, then she shall be admitted
 
 78 Uses and Trusts before [chap. i. 
 
 sect. xi. " and enabled to pursue, have and demand 
 The statute 27 « jj er d ower Dy wr jt f dower, after the due 
 
 Hen. 8. c. 10. * 
 
 " course and order of the common laws of 
 " this realm ; this act, or any law or provi- 
 " sion made to the contrary thereof, notwith- 
 " standing. 
 
 7. " Provided alway, That, if any such 
 " woman be lawfully expulsed or evicted 
 " from her said jointer, or from any part 
 " thereof, without any fraud or covin, by 
 " lawful entry, action, or by discontinuance 
 " of her husband ; then every such woman 
 " shall be endowed of as much of the re- 
 " sidue of her husband's tenements or here- 
 " ditaments, whereof she was before dowable, 
 " as the same lands and tenements, so evict- 
 " ed and expulsed, shall amount or extend 
 " unto. 
 
 8. " Provided also, That this act, nor 
 " any thing therein contained or expressed, 
 " extend, or be in any wise hurtful or preju- 
 c ' dicial to any woman or women heretofore 
 " being married, of, for, or concerning such 
 " right, title, use, interest, or possession, as 
 " they or any of them have claim, or pretend 
 " to have for her or their jointer or dower of, 
 " in, or to any manors, lands, tenements, or 
 " other hereditaments of any of their late hus- 
 11 bands, being now dead or deceased, any
 
 chap. I.] Stat. 27 H. 8. c. 10. 79 
 
 " thing* contained in this act to the contrary Sect.xi. 
 " notwithstanding. T h e statute n 
 
 ° Hen. 8. c. 10. 
 
 9. " Provided also, That if any wife 
 " have, or hereafter shall have any manors, 
 " lands, tenements, or hereditaments, unto 
 " her, given and assured after marriage, for 
 " term of her life, or otherwise in jointer, ex- 
 " ceptthe same assurance be to her made by 
 " act of Parliament, and the said wife after 
 " that fortune to outlive her said husband, 
 " in whose time said jointer was made or as- 
 " sured unto her, that then the same wife 
 " so overliving, shall and may at her liberty 
 " after the death of her said husband, refuse 
 " to have and take the lands and tenements 
 " so to her given, appointed, or assured du- 
 " ring the coverture, for term of her life or 
 " otherwise in jointer, except the same as- 
 " surance be to her made by act of Parlia- 
 " ment, as is aforesaid ; (2.) and, thereupon 
 " to have, ask, demand, and take her dower 
 " by writ of dower or otherwise, according 
 " to the common law, of and in all such 
 " lands, tenements, and hereditaments as her 
 " husband was, and stood seised of any 
 " state of inheritance at any time during the 
 " coverture, any thing contained in this act 
 *i to the contrary thereof notwithstanding. 
 
 10. " Provided also, That this present 
 " act, or any thing herein contained, extend,
 
 80 Uses and Trusts before [chap. i. 
 
 Sect. xi. " nor be at anytime hereafter interpreted, 
 The statute 2r « expounded, or taken, to extinct, release, 
 
 Hen. 8. c. 10. . L 
 
 " discharge, or suspend any statute, recog- 
 " nizance, or other bond by the execution of 
 " any estate of or in any lands, tenements, or 
 " hereditaments, by the authority of this act, 
 " to any person or persons, or bodies politic ; 
 " any thing contained in this act to the con- 
 " trary thereof notwithstanding. 
 
 11." And forasmuch as great ambiguities 
 " and doubts may arise of the validity, and 
 " invalidity of wills heretofore made of any 
 " lands, tenements, and hereditaments, to 
 " the great trouble of the king's subjects : 
 " (2.) the king's most royal majesty, mind- 
 " ing the tranquillity and rest of his loving 
 " subjects, of his most excellent and accus- 
 11 tomed goodness, is pleased and contented 
 " that it be enacted by the authority of this 
 " present Parliament, that all manner true 
 " and just wills and testaments heretofore 
 " made by any person or persons deceased, 
 " or that shall decease before the first day of 
 " May that shall be in the year of our Lord 
 " God 1536, of any lands, tenements, or 
 " other hereditaments, shall be taken and 
 " accepted good and effectual in the law, 
 " after such fashion, manner, and form as 
 " they were commonly taken and used at any 
 " time within forty years next afore the 
 " making of this act; any thing contained
 
 chap. I.] Stat. 27 H. 8. c. 10. 61 
 
 " in this act, or in the preamble thereof, or Sect.xi. 
 " anv opinion of the common law to the con- £ he statule 2r 
 
 • x Hen, 8. c. 10. 
 
 " trary thereof, notwithstanding. 
 
 12. " Provided always, That the king's 
 " highness shall not have, demand, or take 
 " any advantage or profit for or by occasion 
 " of the executing of any estate, only by 
 " authority of this act, to any person or per- 
 " sons, or bodies politic, which now have, or 
 " on this side of the first day of May which 
 " will be in the year of our Lord God 153G, 
 " shall have any use or uses, trusts or confi- 
 " dences in any manors, lands, tenements, or 
 " hereditaments holden of the kings highness, 
 " by reason of premier seisin, livery, ouster le 
 " main, fine for alienation, relief, or harriot ; 
 " (2.) but that fines for alienations, reliefs and 
 " harriots, shall be paid to the king's high- 
 " ness, and also liveries and ouster les mains 
 " shall be used for uses, trusts,and confidences 
 " to be made and executed in possession by 
 " authority of this act, after and from the said 
 " first day of May, of lands and tenements, 
 " and other hereditaments holden of the king 
 " in such-like manner and form, to all intents, 
 " constructions, and purposes, as hath here- 
 " tofore been used or accustomed by the order 
 "of the laws of this realm. 
 
 13. " Provided also, That no other per- 
 u son or persons, or bodies politic, of whom 
 
 VOL. I. G
 
 iV2 Uses and Trusts before [chap. 
 
 Sect. xi. « anv l an( ] Sj tenements, or hereditaments be, 
 
 ikn.s^io 27 " or "ereafter shall be holden mediate orim- 
 " mediate, shall in any wise demand or take 
 " any fine, relief or harriot, for or by oc- 
 " casion of the executing of any estate by 
 " the authority of this act, to any person or 
 " persons, or bodies politic, before the said 
 " first day of May which will be in the year 
 " 1536. 
 
 14. " And be it enacted by the authority 
 " aforesaid, That all and singular person and 
 " persons, and bodies politic, which at any 
 " time on this side the said first day of May 
 " which shall be in the year of our Lord God 
 " 1536, shall have any estate unto them ex- 
 " ecuted, of and in any lands, tenements, or 
 " hereditaments by the authority of this act, 
 " shall and may have and take the same 
 " or like advantage, benefit, voucher, aid, 
 " prayer, remedy, commodity, and profit by 
 " action, entry, condition, or otherwise, to 
 " all intents, constructions, and purposes, as 
 " the person or persons seised to their use 
 " of or in any such lands, tenements, or he- 
 " reditaments, so executed, had, should, 
 " might, or ought to have had at the time 
 " of the execution of the estate thereof, by 
 " the authority of this act, against any other 
 " person or persons, of or for any waste, 
 " disseisin, trespass, condition broken, or 
 " any other offence, cause, or thing con-
 
 chap. I.] Stat. 27 H. 8. c. 10. 03 
 
 " cerning or touching the said lands or te- Suct.xi. 
 " nements so executed by authority of this Thc statute n 
 
 J J Hen. 3. c. 10. 
 
 " act. 
 
 15. " Provided also, and be it further 
 " enacted by the authority aforesaid, That 
 " actions now depending against any person 
 " or persons seised of or in any lands, tene- 
 " ments, or hereditaments, to any use, trust, 
 " or confidence, shall not abate, ne be dis- 
 " charged for or by reason of executing of 
 " any estate thereof, by authority of this act, 
 " before the said first day of May which shall 
 " be in the year of our Lord God 1536, any 
 " thing contained in this act to the contrary 
 " notwithstanding. 
 
 16. " Provided also, That this act, nor 
 any thing therein contained, shall not be 
 
 ' prejudicial to the king's highness, for ward- 
 1 ships of heirs now being within age, nor 
 1 for liveries, or for ouster le mains, to be 
 ' sued by any person or persons now being 
 ' within age, or of full age, of any lands or 
 ' tenements unto the same heir or heirs now 
 ' already descended ; any thing in this act 
 ' contained to the contrary notwithstand- 
 ing- 
 
 17. il Provided also, and be it enacted 
 "by the authority aforesaid, That all and 
 " singular recognizances heretofore know- 
 
 G 2
 
 84 Uses, 8$c. before 27 H. 8. c. 10. [chap. i. 
 
 Sect. xi. « lodged, taken or made to the king's use, 
 The statute 27 a f or or concerning any recoveries of any 
 
 Hen. 8. c. 10. ° 
 
 " lands, tenements, or hereditaments hereto- 
 " fore sued or had, by writ or writs of entry, 
 " upon disseisin in le post, shall from hence- 
 " forth be utterly void and of none effect, to 
 " all intents, constructions, and purposes. 
 
 18. " Provided also, That this act, nor 
 any thing therein contained, be in any wise 
 prejudicial or hurtful to any person or per- 
 sons born in Wales, or the marches of the 
 same, which shall have any estate to them 
 executed by authority of this act, in any 
 lands, tenements, or other hereditaments 
 within this realm, whereof any other per- 
 son or persons now stand or be seised to the 
 use of any such person or persons born in 
 Wales, or the marches of the same, but 
 that the same person or persons born in 
 Wales, or the marches of the same, shall, 
 or may lawfully have, retain, and keep the 
 same lands, tenements, or other heredita- 
 ments, whereof estate shall be so unto 
 them executed by the authority of this act, 
 according to the tenour of the same ; any 
 thing in this act contained, or any other 
 act or provision heretofore had or made, to 
 the contrary notwithstanding."
 
 <^ dC^ftm <rf t%'4' f L sf u^o-Jc-CtS Xy v* ^'"'""' /i.e. 
 
 V- '^chap n.f Of Uses since 27 tl. 8. c. 10. 85 
 
 fa-r*c<.^rt£.C <r> te Ce a-SCC. $fi. fwtef^ g£- $L<.ls C S f y ■* a. At&**-A<^ty Ar/» 
 
 g fej j, £<ntc<eij <*<.+< C^/<? tfi-co ' ,y<r jcuiM***** pi ° A S c <Jjhc <+, zc &«-*£*. <£ y 
 U42 £ A^zCL 7 ^<'< ^'^ '%*■'* CS e*K^A*^$r <£**&. J*-y"? &r*~*"^ ca* 
 
 ^ LjjZ £w «*->***, <^* *** «*^ yt v****~r?* "**' 
 
 T 7 ' ,, CHAP. II. ^^ r^.^y- ^ s£^ /L^ f fry* *o*~o t 
 
 O/ t/Jsc5 «mm /Ae Stffiute 27 //<?«. 8. c. 10. | K ^ .; T: 
 
 Whatever mifflit have been the intention of Sect. i. \ ^ ^ o >; 
 the legislature- the statute of 27 Hen. 8. e. 10. Tl,e * ta ! u, l c did > ^ C J L \, 
 
 ° 7 not auohsh uses rs gr f f\tf 
 
 certainly did not abolish the practice of con- altogether. j> • & . * 
 
 veying to uses: it has merely destroyed the ', ^ 3 
 
 intervening estate of the feoffees, or grantees; <s£\ x V <k % 
 
 and thereby converted the equitable , into a V 1 K'l * ' 
 
 legal, estate. ^ i v * \ 
 
 ft PS ?>< 
 
 Some have thought*, that the legislature y ^ ' ? i\ 
 
 meant, that lands should not pass subse- ^ - ^ N '* 
 
 quently to the statute by way of use, but ? ik F r" ^ 
 
 only by solemn livery ; and therefore they ^ v J> k 
 
 held, that these words of the statute, "Where t * ^ ! r -* 
 
 u any person or persons stand, or be seise^, or ^^ f 
 
 
 " at any time hereafter shall happen to be ^ J ^ J ; 
 
 " seised," are not evidence, that the makers of ; * ;^ ^ 
 
 theact expected, thatuses would be continued ^ H^| ) 
 
 afterwards; but thatthose words were insert- . fe 
 
 
 edto provide for a case, which possibly might \^ : * 
 
 occur : as, supposing a feoffee to uses had been jj ^ ^ 
 
 disseised before theact, and the disseisin had } K' ^n 
 
 continued until the act passed ; at the time of j srf* ^K 
 
 , . V J 
 
 ^ 
 
 • 1 Cor. 125. a, b. f M "^ | 
 
 G 3 1\J ^. Jk J
 
 truest- <rt«. tJL y£ J/^t-; 
 
 «7- Lc 2. fl&C^J 
 
 4U. 
 
 /U^^cS- fle^Jfr, 
 
 
 
 
 TTta 
 
 '<< da <+£i 
 
 y y* 
 
 (&c™> &y 
 
 e,U, Jv tf**-**- ^ 2 ' '/*<-«*- *^ 
 
 5" 
 
 <r«t^y r1-i*.fra(£_ 
 
 86 
 
 Of Uses since the [chap. n. 
 
 ^K 
 
 not 
 altogether. 
 
 >V 
 
 S5 
 
 ^ 
 
 X V 
 
 Sect. i. the act, he was not seised to the use of any 
 The statute did nerson • buthe might after wards, by his entry, 
 
 lbolisn uses tr 7 ° . 
 
 revest the uses, and then being seised to the 
 uses after the act, the use would have been 
 executed in the cestuique use. But this ap- 
 pears to me to be a refined construction upon 
 the words of the statute. Can it be supposed, 
 that the framers of an act, which, as sir Fran- 
 cis Bacon has observed 15 , contains the wisest 
 and fittest ordinances, and the most foresee- 
 ing and circumspect savings and provisoes, 
 could not foretell, that there might have been 
 future conveyances to uses ? Were they un- 
 acquainted with the doctrine of resulting 
 uses? And if they had intended, that lands 
 should not pass by future conveyances, ope- 
 rating by way of use, and that resulting uses 
 should not be executed by the statute, can it 
 be supposed, that they would not have ex- 
 pressed themselves clearly upon these points? 
 To me it appears evident, that, although the 
 statute, by incorporating the use and posses- 
 sion, has virtually extinguished the separate 
 existence of the use, it was not in the con- 
 templation of the legislature to prevent con- 
 veyances to uses. This opinion is supported 
 by the statute of inrolments, which makes an 
 additional ceremony necessary to the transfer 
 of the use, and by the twelfth section of the 
 statute of uses, which speaks of uses to be 
 
 Bac. Uses, 30,
 
 4vc4i~«s a^ou^y &n*s<>Cj & A*s sUsihz^ cXWfLo c*^- £^ut.ut^t,^rv\^ 6*-<^ ^A/Z- <--<*-&v 
 -^U^O. of &-<^C~Lty <Z- ycSt yC^Uy £m<^. jUu*~ ■ j}&. S. / 6 S; &tt?£fr ://?'*;• f& 
 
 £L 'tJl,t<! <***? y/> 6 y* *>ifi; f<*- ^XsX 44. 4* a* 4jg£?%£ 
 
 Stal.Tl H.Q.c. 10. 
 
 CHAP. II.] 
 
 made and executed in possession, after a par- Se ". i. 
 ticular period: and it is sanctioned bv Sir The statute did 
 
 * " not abolish uses 
 
 Francis Bacon c , who, with respect to the case altogether. 
 of the disseisin before the statute, observes, 
 that the regress of the feoffees, after the sta- 
 tute, was excluded by the two savings ; for 
 the first saving respects the right of all per- 
 sons, except the feoffees; and the second saves 
 the right of the feoffees to their own use; s© 
 that between both, the right of the feoffees t# 
 the use of another, was shut. out d . 
 
 7 ty*fjU*t 
 
 J10--1 -fern 9- / 
 
 II. There are several circumstances ne- sect.il 
 cessarv to the raising and execution of uses 0f thc circum 
 by virtue of the statute. 
 
 V- 
 
 stances neces- 
 sary to the exe- 
 cution of uses. 
 
 (1.) As to the person seised to the use. 
 
 The statute 27 Hen. 8. did not, nor in- Persons seised 
 deed could, alter the nature of the use 6 . It 
 would be a contradiction in terms to say, that 
 an equitable interest, not within the statute 1 
 Rich. 3d, was a use, within the statute 27 Hen. 
 8. : and it must therefore follow, that a per- 
 son not capable before the statute 27 Hen. 8. 
 of being seised to a use, cannot be a grantee 
 to uses after it. I have already mentioned 
 the several persons incapacitated to stand 
 
 c Bac. Uses, 40. 
 
 " uses, but doth not create 
 
 £ ? 
 
 11 Ibid. 51. 
 
 " any new uses." Per 
 
 e " The statute 27 Hen. 
 
 Coke, in Cowper v. Frank- 
 
 & K 
 
 " tt. doth only execute old 
 
 line, S Bids. 185. 
 
 
 G 
 
 4 
 
 
 • 
 
 
 MS 
 
 >> 

 
 <j^ e?ZL $fi -==-/?— — ' 7 Of Uses since the [chap, ii 
 
 a. <fpia*i- 
 
 V 
 
 H 
 
 M 
 
 5 * 
 
 % iiEGT. ii. seised to uses' ; and it is only necessary to 
 ^( of the circnm- re mark in this place, that if an alien be en- 
 
 tx stances neces- 
 
 £ s sary to the exe- feoffed to uses, the statute executes the use 
 
 6- cu;ionof uses. . c 
 
 v ^ until office found: but upon office beingtound, 
 
 the use is destroyed by relation". It is the 
 same, if a person, having committed treason, 
 is made grantee to uses, and is afterwards 
 attainted*. 
 
 But the statute 27 Hen. 8. executes trusts 
 
 I t £s and confidences, as well as uses; audit appears 
 
 v f j» •* obvious to me, that under these words, the 
 
 "> -- ^ ^ legislature intended, that every beneficial in- 
 
 f ) J I s terest, in the shape of a trust, for theperform- 
 
 i • ance of which the subpoena would lie against 
 
 \ $> v; the trustee, and where the old use, or legal 
 
 r ' ?' t.fc estate was not, either by express declaration 
 
 ; "^^ or necessary construction, vested in him, 
 
 , ^ & should be executed by the statute, notwith- 
 
 N; * ^^ standing the trustee, on account of his 
 
 ^ r .1 £ limited or inferior estate, or by reason of 
 
 ^"n ? \ tenure, could not stand seised to a use be- 
 
 * ^ j^ ^ fore the statute. By attending to this dis- 
 
 ^■^^ tinction, I apprehend, that the apparent con- 
 
 x r. r ; J tradictions in the books, upon the subject un- 
 
 5 v v ^ der consideration, may be reconciled. 
 
 V 
 
 I have already stated the grounds, which 
 have ocurred to me in support of the con- 
 
 f Ante 50, & seq. h Bac. 50, 59. Tlirog- 
 
 ? Bac. 59. Kin» v. Bovs, morion's case, cited Moor, 
 Dyer, 203- b. pi. 31. 390, 391.
 
 fc /k i/n-ttf /y &■ S<rtc l>c y<^£ #. / y e iW t <*t t^pt. /^ . +sy / .£e+ t A? Off, ■?/£ 
 Aci<L <U J+ttJ&C*/- cf /Uou&t, 1- &< <r*t. 10/ , ye C* ^^ / yf 4L' A*6»~ 
 
 chap. II.] Slat. 27 H.Q.c. 10. 8dflu^ 
 
 elusion, that neither tenant forjife, nor for sect. n. ^v> u s s 
 years, could stand seised to a use before the 0f,hecircum - %^ t X 
 
 ■*■ , *" ; — ; — > — — ,- stances ncccs- - r > ^ Pv 
 
 statute 1 ; but it is clear, that the statute exe-« ar y to theexe- ^ 
 
 cution of uses. ^ >- ^ T 
 
 cutes the trust declared upon the seisin of a 
 grantee for life k : and so it would have exe- 
 cuted the trust declared upon a term for years, 
 if the statute had used the word, " possessed" 
 as well as " seised;" for the reason assigned 
 by the books, that the trust is not executed in 
 the latter case, is, that the word "possessed," 
 is omitted in the statute 1 , and not because a 
 termor for years could not stand seised to a 
 use. 
 
 To pursue this distinction : if the statute, 
 in describing the persons standing seised to a 
 use, had used the words, "body politic 1 "/' I 
 apprehend, that there would have been no 
 ground to contend, that the trust declared 
 upon the estate of a corporation, would not 
 have been executed by the statute ; for the 
 reason, that a corporation could not stand 
 seised to a use was, that the subpoena did not 
 issue against it to compel the performance of 
 the trust" ; a reason which has ceased to ope- 
 rate". 
 
 8 Vide ante 32, & seq. ' See Jenk. 195. 
 
 k Shep. T. 507. 2 Leon. m See Bac. 57. 
 
 1G. Vaugh. 49. Crawley's n See Jenk. 195. 
 
 case, Cro. Eliz. 721. Dy. ° 2 Vern. 412. 1 Ves. 167, 
 
 186. a. See Williams v. 4G0. 
 Jekyll, 2 Ves. 682. 
 
 V' 
 
 J' 
 
 I
 
 £t./ f 6*t£ 4-C^C- ic^lC UC A'^Chv/ filet #f- ™~'' 0UsrL 1&" I** , **- Tf&^xjfU 
 
 6c/* A4 ^^ + */*■ *&***/£- '<"<V tJ^/Aa ^£?^ *fy* ?^ 
 k cs «x r 00 Of Uses since the [chap, n- 
 
 * ? fc. sect. ii. The same construction, I conceive, will 
 
 ^ g> Of the circum- apply to a trust declared upon the estate of a 
 
 stances ncces- 
 
 j£\*^ 8* $ sary to the exe- tenant in tail ; for although Coke, Bulstrode, 
 
 N y* ^s^ anion of uses. 
 
 v 3 ^ ^^is and others report 1 , that in the case of Cooper 
 
 v £;£v ^ v. Franklyn, it was determined, that he could 
 
 ^N ^ s not stand seised to a use, either by express 
 
 <*\ *, £ declaration, or by implication: yet, admitting 
 
 X • J fc 5' this construction in the fullest extent, the 
 
 §t i | question will still be, whether the words of the 
 
 o^M J statute do not include trusts declared upon, 
 
 v \ cn r or limited to arise out of, the seisin of a te- 
 
 v k v ' "\ nant in tail? The statute mentions the word 
 
 \ & ft c "trust" as well as "user and there is no 
 
 k V^J r doubt, that the word '- seised" will extend to, 
 
 & ' • ; : and comprise, every freehold seisin; and there 
 
 f >^ k is nothing in the statute, which saves the 
 
 r * \ - right of a tenant in tail. 
 
 l' ^ v P 
 
 J" k ' ' £ The case of Cooper v. Franklyn is in fact 
 
 P LnJ^ rightly determined. The use in that case 
 
 . ^ * ^ could not have been executed by the statute; 
 
 ^v P Is and therefore it became necessary to ascertain, 
 
 £ |/ . * whether tenant in tail could, before the sta- 
 
 j . k & tute, stand seised to a use. It was thus : John 
 
 s- r P c\ Walter enfeoffed Thomas, his son, t o hold to 
 
 *v % ^ him_aiid_the_ Jjeir&iiLhis Jjojdy, to th e use o f 
 
 1 *| »\ 'j him and his heirs _fQ.r_ever. Now, the use 
 
 i | h j ^ being limited to the feoffee himself, the sta- 
 
 W"S^ "Co. Litt. 19. b. 2 Co. Shep. T. 609. Jenk. 195. 
 
 \ X 78. a. 3 Buls. 184. Cro. Jac. Vide contra, Godb. '269. 
 
 ■ '*> S J SV 400. Moor, 818. 1 Roil. Bacon, 07, 58. Dyer, 311. 
 
 ;,v- Rep. 384. 2 Roll. Ab. 780. b 
 
 i 

 
 &, /^tV ^ £**/ & */ e . <6U& <?fi£- £r*'6Jk / , 4&tc<^ /£ y«f fkir&Tr £t+ ^^^ ye Aa 
 kri/L fa 4c~*-il ' - *-/- &-*■*> &* J^Jt^a. fee ^-#^y^ 4*~*t /€*&*/*>£- <*-/*** ef*> 
 
 chap. II.] Stat. 27 H. 8. c. 10. 91 
 
 tute could not execute it; as the statute exe- Sect. ii. 
 cutesthe use in those cases,where it is limited of the drenm- 
 
 stances neces- 
 
 to third persons , as I shall show in the next sary to the exe^ 
 
 ~~. _,. , cution of uses. 
 
 section, lne question, therefore, whether a 
 trust declared upon a seisin conveyed to a 
 person in tail, in trust for another person, and 
 his heirs, be not executed by the statute, did 
 not arise in, and certainly was not determined 
 by, the case of Cooper v. Franklyn q . J £^ £ 
 
 (2.) As to cestuique use. a cestuique use 
 
 \ 
 
 in esse. 
 
 I must observe, that all persons, who were > ^ js, 
 
 capable of receiving or enforcing the use be- J ^ fc 
 
 fore the statute, can now take under the limit- 
 ation of a use r ; and the statute on the part 
 of cestuique use particularly couples the 
 words body politic with that of person. 
 
 The statute says, " That where any person 
 " or persons stand or be seised, &c. to the use, ? "J? ^ '^ 
 
 "confidence, or trust of any other person or fc\? J l*j 
 
 " persons, &c. :" and therefore if a use be limit- 
 ed to a feoffee, conuzee, recoveror, or releasee, 
 such use, generally speaking, is not executed 'J [% fc\ 
 
 by the statute, but the feoffee, &c. is in by the * * <** 
 
 common law s . In this case, notwithstanding 
 
 fJ In Brent's case, 2 Leon. " nurc upon the lease or 
 16. Manwood observes, " gift, yet the use express- 
 that, " at this day, a gift " ed shall be good." 
 " in tail or a lease for life, r See ante, Ch. i. S. XI. 
 " is made to another's use ; (2.) 
 
 " yet/notwithstauding that s Samme's case, 13 Co. 
 
 " ihe law doth create a tc- 56. Altham v. Anglesey,
 
 / 
 
 / 
 
 
 an 
 
 V 
 
 &J> *t> 
 
 
 Of Uses since the 
 
 <t <t4L*~* ri--r & testis 4 
 
 
 N 
 
 ^"^ .92 Of Uses since the [chap. n. 
 
 Sbct. ij. tJ ie grantee is in by the common laiv, yet after 
 of the circum- ^\ ie declaration of the use to him, he has not 
 
 stances neces- 
 sary to the exe- on iy a se isin, but a use; although not the use, 
 
 cution of uses. * ' ° 
 
 which the statute requires ; and therefore that 
 seisin, which before the limitation of the use 
 to himself, was open to serve uses declared to 
 a third person, is by the limitation filled 
 up, and will not admit of any other use 
 being limited on it ; upon the principle, that 
 a use cannot be limited upon a use. In 
 Tippins v. Cosins (Comb. 313.), Hale ob- 
 serves, M Whether feoffees take by the com- 
 " mon law, or by the statute, yet where the 
 " use is once disposed of to them and their 
 " heirs (whether the statute executes it or 
 " not), there cannot be a use upon an use, nor 
 "a trust upon such an use to be executed by 
 " the statute 1 ." 
 
 *k 
 
 
 Gilb. Rep. 16, 17. Long 
 v. Buckeridge, 1 Stra. 106. 
 Ba. Uses, 43. 62. Gwam 
 v. Roe, 1 Salk. 90. 
 
 '" Possession is transfer- 
 " red to the use by the sta- 
 *' tute; and therefore an use 
 " cannot be expressed upon 
 ' ' a use, as feoffment to J. S. 
 " to his own use, and that 
 " he shall be seised to the 
 " use of R. H.; this is void 
 " to R. H. because the use 
 " and possessionwere to J. S. 
 " before." Moor,46. pi. 138. 
 
 " A. enfeoffed B. and C. 
 " (his two sons) to the use 
 li of himself for life, and af- 
 " ter to the use of them and 
 " their heirs, ad ultimam vo- 
 " lunlaian suam perimplen- 
 " dam, and afterwards de- 
 
 " vised it to D. PtrGaivdy, 
 " D. shall not have the 
 " land, for a use cannot be 
 " limited to a use. So that 
 " when he limits it to the 
 " use of his two sons and 
 " their heirs, he cannot af- 
 " terwards limit it to the 
 " use of his last will ; but 
 " the words ad ultimam, 
 " &c. are void words, as 
 " to the limiting any uses 
 " thereby. And to that 
 " opinionCYencA, J. agreed; 
 " but Fenner, J. doubted. 
 " Girland v. Sharp, Cro. 
 " Eliz. 382. pi. 2." 
 
 " If one without any con- 
 " sideration enfeoff another 
 " by deed, habeud. to the 
 " feoffee and his heirs, to 
 " his own use, and tin 
 
 8\
 
 
 
 
 
 /*fZ. *< &z <*? &t^€*«^*e^z> *.<y -ye at 
 CHAP. II.] 
 
 Stat. 27 H. «. c. 10. 
 
 The ground of this construction is, that 
 
 Sect. II. 
 
 before the statute, real property was divided of *• circnm-^ 
 
 11 stances neces- 
 
 into use and possession ; but there was no sai 7 to *e exe- 
 
 cution of uses. 
 
 third kind of interest then known. Conse- 
 quently, when the seisin was transferred to 
 A. B. and his heirs, and it was added, to the 
 use of him, and his heirs, he had both the legal 
 and beneficial interest ; and there is nothing 
 in the statute to alter the nature of his estate. 
 
 In a case", where M. gave his land to E. 
 R. and his wife, habendum to the said baron 
 and feme, to the use of them, and the heirs of 
 their two bodies, and for want of such issue, 
 remainder to E. M. and his heirs ; the ques- 
 tion was, whether the baron and feme had an 
 estate tail, or an estate for their lives only ? It 
 was argued, that the estate, out of which the 
 use should arise, was an estate for their lives, 
 and the use could not make the estate larger 
 than the limitation of theseisin : butthe judges 
 conceived, that there was a difference, where 
 an estate was limited to one, and the use to a 
 stranger, for there the use should not be more 
 than the estate, out of which it was derived ; 
 but not when the limitation was to two, ha- 
 
 " feoffee suffer the feoffor 
 '* to occupy the lands se- 
 " veral years ; yet the right 
 il is in the feoffee ; because 
 " express use is contained 
 " in the deed." And. 37. 
 
 pi. 95. Anon. See post, 
 chap. 2. s. 5. (8.) 
 
 u Jenkins v. Young, Cro. 
 Car. 230. 244. See Young 
 v. Dyniock, Dy. 18G. a. in 
 notis. 
 
 h 
 
 * 
 
 *. 
 
 14 
 
 ^
 
 \^94 • Of Uses since the [chap. ir. 
 
 j Sect, il bcndum to them, to the use of the heirs of 
 £v ft 0f t,,e circum - their bodies : for this was no limitation of the 
 
 '* N stances ncces- ^ 
 
 r 
 
 ■* 
 
 f ^ sary to the cxe- use> nor wa s it executed bv the statute ; but 
 
 . ^^S. cution of uses. 
 
 £ . p it was a limitation of the estate to them and 
 
 the heirs of their bodies by the course of the 
 ^ common law. 
 
 \ 
 
 So if an estate be conveyed to A. B. and 
 
 C. and their heirs, " To hold unto the said 
 
 " A. B. and C. their heirs and assigns, to the 
 
 " use of the said A. B. and C. for and durins: 
 
 \\ f * the natural lives of them, and the life and 
 
 & Si <c lives of the survivor and survivors of them ;" 
 
 J it should seem, that this is not a statute-use ; 
 
 but that A. B. and C. will take an estate of 
 
 freehold for their lives by the common law w . 
 
 fr^, 
 
 % 
 
 ^ 
 
 ^ \\ \\. Sir Francis Bacon * observes, " that the 
 
 1 & - ~ 
 SYK nj " statute ought to be expounded, that where 
 
 " the party seised to the use and the cestuique 
 «' use is one person, he never taketh by the 
 
 ^ " statute,except there be a direct impossibility 
 
 " or impertinency for the use to take effect by 
 
 a " the common law." When a grantee to uses 
 
 takes a partial or limited estate under the 
 limitation, and the remaining portion of the 
 use is declared to a third person, the grantee 
 may, in some cases, acquire a legal estate by 
 
 w Bac. Uses, 63. See Collection of Cases and 
 an excellent opinion upon Opinions, vol. 2. 281. 
 
 this case by the late Mr. x Bac. Uses, 63. 
 
 Booth, published in the
 
 
 <7~ SKU<TJZ- /Ct~tXn 
 
 ■*-! si*e-^c*t~-(f ,, 
 
 y^ 
 
 
 ' 'chap, ii.] £to. 27 #. 8. c. 10. ^ 95 » gk ^ 
 
 I: * } F^ 
 
 the statute; and I apprehend, that the ground s ECT .ii. 
 
 of this construction is, that the words of the of the circum> "^ v 
 
 stances neces- yr jv 
 
 statute being satisfied by the limitation of sary tothcexe- .^ ^ ^ r 
 
 part of the use to a third person, courts of 
 law will give effect to the whole limitation in 
 such a way, as to make it conformable either 
 to established rules of law, or to the inten- 
 tion of the parties. 
 
 First, where the use is limited to the feoffee 
 in tail out of his own seisin in fee, and the 
 remainder .over to another: as if a feoffment 
 be made to J. S. in fee, to the use of himself 
 in tail, with remainder to D. in fee; or if J. S. 
 covenant to stand seised to the use of himself 
 in tail, with remainder to the use of his wife 
 in fee ; in both these cases the estates tail 
 limited to J. S. are executed by the statute*. 
 But I apprehend, that the construction would 
 have been different in the case of the feoff- 
 ment, if the whole seisin had not been limited 
 to the feoffee ; thus, if the feoffment had 
 been made to J. S. generally, habendum to and 
 to the use of himself in tail, with remainder 
 to the use of A. B. in fee. Now in this case, 
 J. S. has not a seisin to serve the use to A. B. ; 
 and therefore, if the remainder to him can 
 take effect at all, it must take effect by the 
 livery made to J. S. in the course of posses- 
 sion by the common law y . So too the con- 
 
 13 Co 
 
 cution of uses. 
 
 * Bac. Uses, 63 
 56. 
 
 » See 2 Roll. Ab. 68, 
 
 Litt. sec. 60. If a feoff- 
 ment had been made to A. 
 for years, remainder to B. 
 
 
 <S 
 
 s 
 
 
 ^4 n v
 
 tr .A./4-, lJ*/t>; a-TL^ . jby sty ^ /L£ . f#. <? 
 
 s 1^ t^- 96 Of Uses since the [chap. n. 
 
 Sect. ii. structioii is different, if the use upon the 
 s $ K V or the circum- feoffment be in the first instance limited to 
 
 > Vv $L K. ^ stances neces- 
 
 . ^Or. sar y to the exe- the feoffor or a stranger for life, or in tail, 
 
 *j * ^ H cution of uses. . /•/*•• 
 
 r* ■ .* s with the remainder to the feoffee in fee 2 ; and 
 
 :k^ ^ ^ should also seem, that if the first use be 
 
 r^t* ^ limited to the feoffee for life, or for years, 
 
 ^ X ^ r w * tn the remainder over in fee, he will take 
 
 f Ai ?K by the common law a . 
 
 \\f \ Secondly. Where the whole seisin in fee 
 
 ^Sv^ l * s conve y e( ^ t0 ^ ie feoffee, and many estates 
 
 K ^ N N in the use are carved out of such seisin, one 
 
 *1 of which estates the feoffee takes : as if A. 
 
 jo jj^ ^ be enfeoffed to the use of C. D. for life, re- 
 
 ^ v mainder to the use of himself for life, re- 
 
 mainder to the use of J. N. in fee ; the use 
 limited to the feoffee will be executed by the 
 statute; for the law will not admit fractions 
 of estates 5 . 
 
 Thirdly. If J. S. be enfeoffed to the use 
 of himself and a stranger; or if a feoffment 
 be made to a bishop and his heirs, to the use 
 of himself and his successors ; the use is exe- 
 cuted by the statute in both cases . 
 
 X in fee, and the livery had l Co. Litt. 22. b. Bac. 
 
 v V ^k been made to A. this would Uses, C4. 
 
 £ V \1 nave passed the fee to B. in a Bac. Uses, 63. and see 
 
 course of possession at Booth's Op. cited ante. 
 
 ^ ^ common law. b Ibid. 04. 
 
 v ^ £ , c Bac. Uses, 64. 
 
 v* AA
 
 
 
 chap, ii.] Stat. 27 H. 8. c. 10. ' 97^ |M^ 
 
 ft 
 
 1\ 
 
 Here I cannot with propriety omit the ad- Ssct.ii. 
 vice of Lord Bacon d . " Now let me advise 0f the circum - 
 
 stances neces- v£ 
 
 " you of this, that it is not a matter of sub- 8ar y totheexe- .* 
 
 cution of uses, v^^ 
 
 " tilty or conceit to take the law right, when j^ 4 
 " a man cometh in by the law in course of 
 
 " possession, and where he cometh in by the v 
 
 " statute in course of possession ; but it is £ 
 " material for the deciding of many causes 
 
 " and questions, as for warranties, actions, S^ 
 " conditions, waivers, suspicions, and divers 
 
 " other provisoes." Jp 
 
 r> 
 (3.) The statute requires, that there a use in esse. ? 
 should be a use in esse in possession, reversion, k 
 or remainder. That use may be either ex- 
 pressed or implied. ^ 
 
 First; Of express uses. The statute men- of express uses, ^ 
 
 .•.i t i •» t t/. anc * ^y what 'rf 
 
 tions the words use, trust, and confidence. If words created. ^ 
 
 lands be conveyed to A. and his heirs in trust r 
 for B. and his heirs, or in confidence, that he 
 
 and they shall take the profits, the legal estate ^ 
 
 is vested in B. by virtue of the statute 6 : .^ 
 
 and it is to be observed, that upon the execu- \ 
 
 tion of every use or trust by the statute, ces- £ > 
 
 tuique use shall have the legal estate, after ^ ^ 
 such quality, manner, form, and condition, as he 
 
 d Bac. Uses, 65. trust by will to pay the 
 
 e Eure v. Howard, Prec. rents to A., or to permit him 
 
 Cha. 345. Broughton v. to receive the same, was p ? V\ ^ 
 
 Langley, 2 Salk. 670. considered as a use exe- ^^fcs ^ jk 
 
 Right ex dem. Phillipps cuted. Doe dem. Leicester v!\^^ k ^ 
 
 v. Smith, 12 East, 455. A v. Biggs, 2 Taunt. 109. 
 
 VOL. I. H
 
 ■UL**-- 
 
 i^yxLS- /l^*-^ ^2-<2-**- ts/L yJ2 UT^z^jZ dL*~9 nfi. o4-r jr ~&A.4yf~ X *f-fe. <^J 
 
 ts/t A-^. /h-^t*-*- ^ir^trist^-cde^- ^ sK ^ ^ # iZu*) « 
 
 90 Of Uses since the [chap. n. 
 
 S Sect. u. had before in or to the use, confidence, or trust, 
 
 %\\ 
 
 V -h . Of the circuui- t ] mt was fa farf 
 
 P Si X *<L stances ncces- 
 
 r, ^ T sar y t0 tlle exe " 
 
 ^f X J cution of uses. 
 \ x <^ Besides the words mentioned by the sta- 
 
 ^ t |k ^ tute, the word intent will raise a use g . Thus 
 
 \ £, ^ a man made a feoffment in fee, sub condi- 
 
 & y> c ^ tione, ea intentione, that his wife should have 
 
 X V? ^' the land for her life, with remainder to his 
 
 \ younger son in fee; the feoffor died, and also 
 
 ^ ' £ 5v P the feoffee, without having made any estate. 
 
 fS^r / ^ The heir of the feoffor entered as for a con- 
 
 N f. dition broken ; but it was resolved, that this 
 
 X v ^ was no condition, but an estate executed pre- 
 
 x \ » ' ^ sently by the statute, according to the intent 
 
 ^ of the parties' 1 . So if it appears, that the 
 
 m J^^ parties intended to create a use, though that 
 
 §h IcT P\ ^ intention be not expressed by the word intent, 
 
 or by any other of an express fiduciary im- 
 
 r> ^ r > port, yet the use will be executed by the s ta- 
 il £ I P ^ tute. Therefore in a case 1 , where A. in 4th 
 
 * R X\ Hen. 7. made a feoffment in fee, and accom- 
 
 ^ ft -a 
 
 \ N 4n > panied it with a deed of defeazance or decla- 
 
 ' Pr £> x ration, which gave the feoffor and his heirs a 
 
 ^ £ ^ iv power of entry after quiet enjoyment by the 
 
 ^ f ^ r r feoffees for 100 years ; it was held by the 
 
 5^ * judges, after the term had elapsed, that the 
 
 lands were vested in the heir of the feoffor by 
 
 VI ft 
 
 si C* the statute 27 Hen. 8. ; for that it appeared 
 
 ^ K ^ f See upon these words, 4 Leon. 22. 5 Vin. 44. pi. 
 
 j* *v \ ' Bac. Uses, 47. 5. and notes. 
 
 *\ * ■ e Humraerston's case, h Anon. 4 Leon. 2. pi. 3. 
 
 \ k, ^ ^ Dyer, 166. a. in notis. Bet- | Boydell v. Walthall, 
 
 L (S (^ R nam v - Bateson, ibid, and Moore, 722. 
 
 k -ft- v e
 
 e^e^H.^- $i& 4&-<**t- *-** /**■ £^**<^^ ~& into- 4c<^4,tl~gL^i3 </ W^',,^, ^ &-iL+t^r& 
 
 ^/^cfiXtflEf*" Stat. 27 H. 8. c. 10. 90 
 
 to be the intent of the feoffor, that he should Sect - 1l 
 have the lands after the 100 years possession 0f the circum - 
 
 J * stances neces- 
 
 by the feoffees. This intent was the use of sar -Y t0 *' ie cxe " 
 
 •' cution of uses. 
 
 the feoffment, which arose out of the posses- \ ^ K 
 
 sion of the feoffees, and was executed by the ^ "\ 
 
 statute of uses d . * ^ ^ 
 
 ^ I' * 
 
 It has been said, that if A. (the grantor) ^ ? n 
 
 be entitled to a remedy at common law by ^ ^ .^ 
 
 an action of covenant in order to compel B ^ \ §*> 
 
 (the grantee) to execute estates, there, as no ^ f 
 
 subpoena will lie for A. as cestuiqueuse against > ' f 
 
 B. ; so no use can be executed in A. by the ^ ft 
 
 statute*. v ^ \ 
 
 Secondly ; Of implied or resulting uses, of implied or 
 
 • • resulting uses ■ 
 
 As the statute did not expressly abolish all 
 future limitations of, and estates created by, 
 uses, there was actually no avoiding the ex- 
 ecution of uses, limited or occasioned by 
 conveyances made subsequently to the act. 
 When a feoffment was made without consi- 
 deration and declaration of the use, what 
 construction was to be adopted ? We have 
 seen, that, before the act, the chancery, which 
 judged according to the intention of the 
 parties, would have construed the possession 
 to be in the feoffee, and the use in the feoffor. 
 
 a See Callard v. Callard, tleton, Dyer, 162. a. See 
 
 Cro. Eliz. 344. 2 Roll. Ab. post, 6th subdiv. of this 
 
 788. Moore, 687. Sec. 
 
 e See Wingfield v. Lit- 
 
 H2 
 
 * 
 
 N>
 
 ^ * t 100 Of Uses since the [chap. u. 
 
 Kslf { sect. ii. Does the statute destroy this construction? 
 if t ^ k 0fthe circum " On the contrary, the case appears to come 
 
 £ A. \ y stances neces- r *■ ' 
 
 i sary to the exe- di re ctly within the meaning of it ; the words 
 
 ^ H ~^. r cution of uses. J 
 
 \ £ s\ h being, that where any person, &c. stands seised 
 
 ^^ ^ to the use of another, by reason of any feoff- 
 
 i^l k merit, &c. or by any ?nanner of means tvhat- 
 
 £ (t w^ soever, then, &c. In this case, the feoffee 
 
 stands seised to the use of another; viz. the 
 | I' feoffor, by an admitted construction before 
 
 the act. The act certainly did not intend to 
 alter the manner of raising uses ; nor did it 
 
 ;.I 
 
 A 
 
 ^> 
 
 | . mean to make any thing pass by a convey- 
 
 & v ance, which did not pass before ; that is to 
 
 H p say, it did not mean, that the land and use 
 
 P ' should now pass in a case, in which the land 
 
 only passed before the statute f . It may 
 
 therefore be considered as a general rule, 
 
 that if a feoffment be made, a fine levied, or 
 
 ^ recovery suffered without consideration and 
 
 declaration of the use, the use will result to 
 
 the feoffor, &c. and be executed in him by 
 
 the statute 8 . 
 
 a. 
 
 '* Indeed it is said 1 ', that if a feoffment be 
 
 pleaded, the use need not be averred to the 
 feoffee ; because if nothing appear to the 
 
 
 
 f Vide 2 Raym. 800. Roll. Ab. 781. Read v. 
 
 Co. Litt. 22. b. Jenk. Errington, Cro. Eliz. 321. 
 
 Cent. 253. 22 Vin. 214. pi. l. and 
 
 ' Armstrong v. Wolsey, notes. 
 
 2 Wils. 19. Doug. 26. h Shortridge v. Lam- 
 
 Beckwith's case, 2 Co. 5G. plugh, 2 Salk. 678. 7 Mod. 
 
 08. b. Dyer, 146. b. 2 71. 1 Stra. 107. 
 
 V 

 
 £**• Xs £M~-£jZ US**^*- /l*^*-"' w^w- r r rj<^ - -^ ~ „ ^ -"c-^j^r^j 
 
 chap, ii.] Stat. 27 H. 8. c. 10. 101 Z~7 
 
 contrary, the use must be intended to be in Sect. n. jk , K 
 
 him : and that such was the form of pleading: 0f the drcum - * 
 
 ' ' o stances neces- ^j 4 
 
 before the statute. If this be the course of sa 7 tot c heexe " « "\ T 
 
 •^ cution of uses. ^^ 
 
 pleading, it may be asked, what utility can $ a £ 
 
 arise from the doctrine of resulting uses? ^ '^ J', 
 
 To which it may be answered, that although 
 the rules of pleading do not require an aver- 
 ment of the use in favour of the feoffee, yet 
 it may be averred to be in the feoffor ; and 
 that the want of a consideration and declara- 
 tion of the use is a sufficient circumstance to 
 prove, that it was intended for him 1 . 
 
 ^s 
 
 I must here observe, that uses generally 
 result according to the estate and interest of 
 the person or persons making the convey- 
 ance 1 " ; and he or they, in that case, claim 
 
 ► 
 
 1 Auglesea v. Altham, 
 Holt Rep. 737. 1 Stra. 
 107. In the margin of Sal- 
 keld's Reports, which be- 
 longed to the late Serjeant 
 Hill, opposite to the case 
 of Shortridge v. Lamplugh, 
 is the following MS. note, 
 which, although not in the 
 hand-writing of, is evidently 
 dictated by, the learned 
 Serjeant. 
 
 " Contra Vin. Uses (Y. 
 " a.) pi. 1. and the notes, 
 " pi. 24. ; but most of the 
 " cases there cited before 
 "the statute; and, there- 
 *' fore, Q. if since the sta- 
 " tute it is not necessary, 
 " in pleading a feoffment 
 " or release, for the feoffor 
 
 II 
 
 " or releasor to make an 
 " averment, that it was to 
 " his use : and it seems, that 
 " the want of a considera- 
 " tion would be evidence of 
 " the truth of such aver- 
 " ment, if traversed ; but if 
 " the deed purports a valu- 
 " able consideration, the 
 " feoffor or releasor cannot 
 " be admitted to take such 
 " averment. Dyer, 169. pi. 
 " 21. S. P. 9. Co. 11. b. 
 " accordingly as to a reco- 
 " very, and Salk. 676. pi. 
 " 2. as to a fine and feoff- 
 '* ment." 
 
 k See ante Ch. T. S. ix. 
 (3.) Roe v. Popham, 
 Doug. 24. and 22 Vin. 215. 
 pi. 2. and notes, and pi. 6,7. 
 
 3 
 
 \ 
 
 10 
 
 .1 
 
 s
 
 ^^ '^^ 102 Of Uses since the [chap. \i. 
 
 5 5 * sect. ii. under the old use. However, when a tenant 
 
 V ^ . 0f the c,rcum - in tail suffers a recovery without Considera- 
 bly '-v ^. ^ stances neccs- ^ 
 
 s q sary to theexe- tioii or declaration of the use, the use (not- 
 
 i; n iv cution of uses. v 
 
 tk ^ n. § withstanding the aspect of some of the cases 1 ) 
 
 f^ ^ will result to the recoveree in fee m : for as 
 
 ^ K < ^ the recoveror or demandant acquires a seisin 
 
 in fee, the use, if it result at all, must result 
 according to the extent of that seisin ; the 
 words of the act being, that the estate, title, 
 right, and possession of the person seised to 
 the use shall be transferred to the cestuique 
 use ; and in the very distinguished argument 
 of the chief justice Lee, in delivering the 
 opinion of the court in the case of Martin v. 
 Strachan", is the following passage : " It is 
 " the use of the fee simple that passes to the 
 " recoveror from tenant in tail, and which 
 " results to him (i. e. tenant in tail) and his 
 " heirs, if no use is declared ." 
 
 Where A. is tenant for life, with remainder 
 to B. in tail, with remainder to A. in fee, and 
 A. and B. levy a fine without declaring the 
 uses of it : it should seem, that the use would 
 result to A. for life, with remainder to B. 
 and his heirs so long as he shall have issue, 
 and in default of his issue, to A. and his heirs. 
 
 1 See Algol v. Cheney, " 5 Term Rep. 107. 110. 
 
 Latch. 82. Walter v. Snow, in note. 
 
 Palm. 1359. ° See post, as to the ef- 
 
 '" 9 Co. 8. b. Gilb. Uses, feet of a declaration, or the 
 
 61. Nightingale v. Ferrers, want of one, in breaking 
 
 3 P. W. 206. I he descent. 
 
 a 
 
 *?
 
 fbuJi tci* &> td&k 2/ i*<_*6 e£+'^ tA^/t 4<-^<-m. &<- /e* y ^^ 
 
 chap. ii.] Stat. 27 H. 8. c. 10. 103 *^ f S 
 
 But I am not aware, that the point has been Sect - n. ^ r* ^ ^ 
 determined. 0f tllc c,rcum - . Ss ^ 
 
 stances neces- -^ t "^ 
 sary to the exe- ^ N <, ' * ? 
 cution of uses. Jl 4 r 
 
 The preceding observations are made N - ' f 
 
 upon the case of a feoffment or other con- & * ' " '* 
 
 veyance without consideration, and without *" C J •> ? 
 
 the declaration of any part of the use. The &^V <• • 
 
 Jaw equally favours a resulting use upon a t- v-'^ ^ 
 
 conveyance, where only part of it is limited, ^ *> ^ | 
 and the remainder left undisposed of; it 
 being a rule, that so much of the use, as the 
 
 grantor does not dispose of, remains in him p . > . (* \ 
 
 Thus, if a feoffment in fee be made to the J ^ £ S^ 
 
 use of the heirs of the body of the feoffor, a ( . ^ S 
 
 the use is undisposed of during his life; it J v ^ \ 
 
 will therefore result, and then he will have an H j ^ 
 
 estate tail executed in him q . So if the use ^ * * 
 upon a feoffment in fee be declared to the 
 
 feoffee for life, and no further declaration be | £ 
 
 
 *>> 
 
 K* 
 
 made, the remainder of it will result to the ^ sb ? 
 
 feoffor 1 : or if the use in the first instance be J^ ? f 
 
 limited to the feoffor in tail without any fur- M '^ & 
 
 ther declaration, the use in reversion will .^Nf 
 result to him 5 : but not so, if the use be li- ? k J 
 
 mi ted to the feoffor for life or for years ; x v> 
 
 p Co. Litt. 23. a. Wood- collected in the note. Ibid. ^ ^ * T 
 
 lifF v. Drury, Cro. Eliz. 200. and cases in note to x N " 
 
 439. Audtey's case, Dy. pi. 7. Post, s. 5. (5.) p jfr * ^ ^ 
 
 166. a. r See next page and 1 & • IN \ ^ 
 
 1 1 Mod. 161, 162. 1 Ves. 488. ^ « £ < < 
 Roll. Rep. 240. 22 Vin. s Vide Dy. 111. b. in a ^ * 
 
 283. pi. 2. and the cases notis. f 4 .^ > K 
 
 •V * - 
 
 K
 
 ~ 7 J y r t**-t^ edit /tyTM><£y* t^yjL* a^' /U^A 6* <ic**e*^ y J^fe^ 6&«4^ 
 L^^ / r A ^'/ / ^..S*^ iJrJL,-. JLU*^, ^Az^duU*. 
 
 /IT 104 r Of Uses since the [chap. If. ^ 
 
 sect. n. because if it did, the feoffor could not have 
 
 I 
 
 ^ ^ of the dream- an estate for life or years, as he intended 1 . 
 
 ^ ^ stances neces- * 
 
 V ^ sary to the exc- 
 
 M; § \^> cution of uses. 
 
 It is the intention of the parties, to be 
 collected from the face of the deed, that gives 
 effect to resulting uses. Therefore, it has 
 k ['? been said, that the payment of 5s. or the 
 
 p^ J * like, serves as an implied declaration of the 
 
 use to the feoffee, when it is not otherwise 
 expressly disposed of. On the contrary, the 
 want, both of consideration and declaration 
 shows, that the feoffor never intended to part 
 with the use. This has been the construc- 
 tion, when no part of the use has been ex- 
 pressly limited. But the same rule does not 
 hold, as I have already stated, where any 
 part of the use is limited from the feoffor, 
 . j . &c. ; and the residue left undisposed of; for 
 
 «. \ the express declaration in this case is pre- 
 
 r<sf . sumptive proof, that he did not mean, that 
 
 the grantee should have the remainder of the 
 use. Therefore if an estate be granted even 
 for a valuable consideration to feoffees and 
 their heirs, to the use of them for their lives, 
 it should seem, that the remainder of the use 
 will result to the grantor 1 ' : for the extent of 
 
 1 Ibid. Adams v. Savage, Moor, 876. Piers v. Hoe, 
 
 2 Salk. 679. Rawiey v. Cro. Eliz. 131. 1 Leon. 
 
 Holland, 22 Vin. 18!). pi. 125.— Booth's opinion cited 
 
 11. sup. See more of resulting 
 
 u See Wilkes v. Leuson, uses post, sec. 5th ; subdi- 
 
 Dy. 169. Wilkins v. Perrat, visions 2d and 5th, 
 
 fe 
 1 
 
 fr * 
 
 { i^ 
 
 Is? 
 
 v <\ 
 
 *f 
 
 
 ^ k 
 
 ■tl 1 
 
 U 
 
 
 h 
 
 
 •\ 
 
 ft V 
 
 5' &
 
 $Ul 4^>lf^n.j. M'*-*- • «#£z ^v^-t^v /£■&: vi^rfiLe-^, 4^<. 44f SHO- <Z-c& *<./^+*- 
 (jZsrt-1^ ae^e^^/ty / </ /#t*^ ,^>t^.«^/ Ic #*t 4^ft<^n<. *f +/< <Z4s*< ^U* s<~<*y 
 
 ^^ &£?it.-\ Stat. 27 H.O. c. 10. ^ 105 jp ^ • 
 
 the express limitation is the measure of the Sect - u - ^. £ $S*SS 
 consideration. of the circum- ^ & ^ ^ v 
 
 stances neces- t^ <• K s 
 
 sary to the exe- ■ sr 
 
 cution of uses. 
 
 But when in a conveyance to a purchaser, 
 the contract is recited to be for the purchase 
 of the absolute fee simple, the consideration 
 extends to the entire use; so that I conceive, 
 there can, in that case, be no resulting use 
 to the grantor or vendor. The payment of ^ ^ t> 
 
 the consideration money divests him of any x V £ 
 
 beneficial interest, which constituted the use K ; % 
 
 before the statute ; and if any part of the use I <.- ^ 
 
 were to remain unlimited, it would vest, as it v. 
 
 should seem, in the purchaser, upon the prin- t , 
 
 ciple of modern trusts, resulting or arising by 3 v 
 
 implication; " trusts result to the party from 
 " whom the consideration moves." Pelly v. 
 Maddin, 21 Vin. 498. pi. 15. A perplexing 
 case sometimes arises in practice. A pur- *i 
 
 chased estate is conveyed to the use of the $\ 
 
 releasee and his heirs during the life of, and S V 
 
 in trust for, the purchaser, in order to prevent k 
 
 dower, and after the determination of that 
 estate, to the use of the heirs and assigns of 
 the purchaser. According to the limitation, 
 the heirs would take as purchasers a contin- 
 gent remainder in fee ; and if the use resulted 
 to the vendor, the purchaser could not con- i < 
 
 vey, nor devise it, without another convey- v> ^ 
 
 ance by the vendor ; which construction * y ^ 
 
 appears to me improper, as the consideration ?v \ \ 
 
 has exhausted the use. The use would, I I ^v ^
 
 ~- *~t~^ y r fist***, j^A^t* ^^ ieM ^^ ,^^. 
 
 *S~^. >lr ^ f &«, <* <wfe*^ ^ x. ^., ^^ ^ 
 
 1 ^ 106" Of Uses since the [chap. ii. 
 
 ^ J Sect. ii. apprehend, vest in the purchaser by imphca- 
 fc 0f the circum " tion either for life (which would obviate all 
 
 ^ stances neccs- v 
 
 sary to the exe difficulty), or in fee, subject to the contingent 
 
 * cution of uses. Jn . 
 
 JL remainder; and in the latter case, the pur- 
 
 chaser and his trustee might defeat the con- 
 tingent remainder ; but if not defeated, the 
 purchaser would be prevented from devising 
 the estate at law. In any way of considering 
 the case, I think the purchaser must be con- 
 sidered as entitled to the beneficial interest in 
 fee ; for the limitation to the right heirs 
 
 k, could not be considered as an advancement 
 
 ?* for them. 
 
 
 In the case of a springing use, arising 
 from a seisin in fee simple, where there is no 
 express limitation of the use, until the event 
 happens upon which the springing use is to 
 arise, the use will result to the grantor in 
 fee simple. Thus if A. enfeoff B. and his 
 heirs, to the uses following, that is to say, 
 after marriage had between A. and Anne, his 
 intended wife, to the use of A. and Anne, and 
 the heirs of A. ; the use, until the marriage, 
 will result to A. in fee v . 
 
 The statute of frauds, 29 Car. 2. c. 23. by 
 an express saving, does not extend to trusts 
 and confidences, that arise or result by impli- 
 cation of law. It has however been said, that 
 as a use now becomes a legal estate by the 
 
 1 22 Vin, 220. pi. 1. (P.)
 
 chap, ii.] Stat. 27 H. 8. c. 10. 107 
 
 operation of the act, that clause is not appli- s EC t. ir. 
 
 Cable tO it . stances neces- 
 
 sary to the exe- 
 _ . ... cution of uses. 
 
 It has been determined, that a resulting 
 use may be rebutted by parol evidence*. But 
 neither the grantor nor grantee can aver a 
 use to a third person since the statute 7 . 
 
 merit. 
 
 (4.) By the words of the statute every An heredita- 
 species of real property (except copyhold 
 estates 2 ), whether corporeal or incorporeal, 
 in possession, reversion, or remainder, may 
 be conveyed to uses. The property, however, 
 must be in esse at the time of the creation of 
 the use. Therefore if A. covenant to stand 
 seised of lands, which he shall afterwards 
 purchase, to certain uses ; no use can arise 
 by virtue of such covenant upon lands, of 
 which he may afterwards become the pur- 
 chaser 1 . So if A. convey his lands by bar- 
 gain and sale to J. S. in fee, with a way over 
 other lands ; the right of way does not pass 5 : 
 because by the operation of the bargain and 
 sale the use is first vested in the bargainee ; 
 and consequently there is no previously exist- 
 ing seisin of the right of way, out of which 
 
 * Lamplugh v. Lamplugh, 27. pi. 7, 8, 9. A feoffment 
 
 1 P. W. 112. in fee upon condition that 
 
 * Roe v. Popham, Dougl. if feoffor do such a thing, 
 26. he shall re-enter and retain 
 
 » 2 Salk. 676. the land to the use of a 
 
 x See post, sec. 8. stranger, the use is void. 
 
 a Yelverton v. Yelvcrton, 1 Leon. 269. pi. 362. 
 
 Cro. Eliz. 401. Moor, 342. b Beaudley v. Brook, 
 
 2 Roll. Ah, 070. 22 Vin. Cro, Jac. 189.
 
 108 Of Uses since the [chap, n, 
 
 Sect. ii. the use can arise. But the grant of rent- 
 Of the circum- c h ari re de novo to uses is within the statute : 
 
 stances ncces- ° 
 
 sary to the exe- b ecause the land is the seisin out of which 
 
 cution of uses. 
 
 it arises. 
 
 There must be (5.) In order that a use may be executed 
 
 a seisin in the .... 
 
 feoffee or gran- by the statute, there must be a seisin in the 
 
 tee. 
 
 feoffee or grantee at the time of its execu- 
 tion : for, as Lord Bacon has observed 15 , " the 
 " matter and substance of the estate of ces- 
 " tuique use is the estate of the feoffee, and 
 " more he cannot have." When a feoffment is 
 made to A. and his heirs, to the use of B. and 
 his heirs, or to the use of B. for life, with re- 
 mainder to the use of C. in fee ; here the sei- 
 sin of A. is entire, and upon the execution of 
 the conveyance, it is immediately transferred 
 from him according to the limitation of the 
 use. Vested remainders or reversions may be 
 legally granted ; and consequently uses may 
 be limited upon the seisin so transferred in 
 remainder or reversion ; but consistently with 
 the rule just noticed, as contingent remain- 
 ders, or rents already granted to take effect 
 upon a contingency, cannot be transferred at 
 law during the suspense of the contingency 
 it follows, that no use can be limited upon 
 the transfer of such contingent remainder or 
 rent. The statute transfers the legal posses- 
 sion or estate to the use ; but a seisin, not le- 
 gally vested, cannot serve a use. 
 
 ' Bac. Uses, 43. d Ibid. 47.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 109 
 
 It sometimes occurs in practice, that a sect. n. 
 conveyance is made to A. B. and C. D. and £*; +£■ 
 
 the survivor of them, and the heirs of such sar ? t0 l } e exe " 
 
 ' cution of uses. 
 
 survivor, to uses limiting the estate in strict 
 settlement. In this case, the remainder to 
 the survivor of A. B. and C. D. is a contin- 
 gent remainder ; and until the death of one 
 of them, there is no actual vested seisin to 
 serve the uses. 
 
 The seisin transferred by feoffment, fine, 
 recovery, and lease and release, for the pur- 
 pose of serving uses, may be called an actual 
 seisin ; but by the operation of the statute 
 there maybe a possibility of seisin, or scintilla 
 juris. 
 
 First. Of the actual or present seisin. It 0f . an actual 
 
 "* * seism co-exten- 
 
 may be considered as a general rule, that the sive with the 
 
 • rr* i e9tate * 
 
 seisin of the feoffee, releasee, &c, must be 
 
 commensurate to the use declared upon it ; 
 
 or in other words, cestuique use cannot have 
 
 an estate in the use more extensive, than the 
 
 seisin out of which it is raised. Thus if land 
 
 be conveyed to A. for life, to the use of B. for 
 
 life, in tail, or in fee, the estate of B. must 
 
 determine upon the death of A e . 
 
 If a seisin in fee be properly created, that 
 seisin will serve uses declared upon it, al- 
 
 e Dy. 186. a. Vaugh. 49. Crawley's case, Cro. Eliz. 
 Bac. Uses, 47. Cro. Car. 721. 
 231. 3 Bulst. 184. See
 
 ] 10 Of Uses since the [chap. ii. 
 
 sect. ii. though the person, who created it, had not an 
 0f the circum " estate in fee-simple in the lands conveyed. 
 
 stances nc-ces- * "> 
 
 sary to the exe- Thus, when a tenant in tail suffers a recovery, 
 
 cution of uses. \ J 
 
 the use may be declared in fee f : and if a te- 
 nant for life or years make a feoffment in fee, 
 and the use be declared in fee, such use will 
 be executed according to the extent of the 
 tortious seisin acquired by feoffment 5 . 
 
 or the possibi- Secondly. Of the possibility of seisin. The 
 
 lity of seisin. . .„ . . ., .... ~ . . 
 
 scintilla juris, or possibility 01 seisin, is sup- 
 posed to exist in feoffees, releasees, &c, to 
 uses, when all actual seisin is taken from them 
 by the operation of the statute, in two parti- 
 cular cases : first, upon the limitation of 
 springing uses : 2dly, upon the creation of 
 contingent uses. I shall in this place speak 
 of springing and contingent uses, so far only 
 as they will explain the nature of the scintilla 
 juris. 
 
 First, if a feoffment or lease and release be 
 made, a fine levied, or recovery suffered to A. 
 and his heirs, to the use of B. and his heirs, 
 until C. pay a sum of money, and then to the 
 use of C. and his heirs ; in this case the use 
 is executed in B. and his heirs by the statute ; 
 and as this use is co-extensive with the seisin 
 of A., there can be afterwards no actual seisin 
 remaining in him : but when C. pays the mo- 
 
 'See ante, 101, 102. *Co. Litt, 10. a. 180, b. 
 
 108. a,
 
 chap, ii.] Stat. 27 H. 8. c. 10. Ill 
 
 ney, the former use to B. ceases, and a new sect. ii. 
 use springs up, and is executed in C. in fee. 0f the circuni 
 
 *■ ^ L stances neces- 
 
 The question is, out of whose seisin is the sar -7 t0 the exe * 
 
 cution of uses. 
 
 secondary use to be served ? It cannot be 
 served out of the possession of B., because he 
 is cestuique use ; nor out of the original seisin 
 of the feoffor, &c. ; because the livery, &c, 
 entirely divested him of all possession what- 
 ever 11 . Neither could the use to C. be exe- 
 cuted until payment of the money; because 
 the two uses could not exist at the same time 1 . 
 To avoid these difficulties, it was said, that 
 the use should arise out of the original seisin 
 of A. the grantee ; that although no actual 
 seisin remained in him after the execution of 
 the use to B., yet upon the cesser of the use 
 limited to B., the original seisin reverted to 
 A. for the purpose of serving the secondary 
 use to C. : and that before the money was 
 paid, this possibility of reverter of the ori- 
 ginal seisin should be considered as a possi- 
 bility of seisin, or scintilla juris. 
 
 Secondly. A feoffment is made to J. S. in 
 fee, to the use of A. for life, remainder to the 
 use of his first son unborn in tail, with re- 
 mainder to the use of B. in fee. Does any 
 and what seisin remain to J. 8., until the birth 
 of a son of A.? The solution of this ques- 
 tion formed the great difficulty in Chudleigh's 
 
 u Vide 1 Leon. 269. » Co. Lift. 271. b.
 
 112 Of Uses since the [chap. n. 
 
 sect. ii. case k . On the one hand it was said, that an 
 of the circum- ac t ua ] estate in remainder vested in J. S. to 
 
 stances neces- 
 sary to the exe- serV e the contingent use, when it came in esse; 
 
 cution of uses. . , 
 
 whilst others were of opinion, that no part of 
 the original seisin remained in J. S., and that 
 the contingent use, when it should arise, must 
 be served out of the former seisin of the 
 grantee: that is to say, that as the whole sei- 
 sin was taken out of J. S., so much of it as 
 was necessary to serve the contingent use, 
 when it came in esse, should remain in the 
 preservation and custody of the law, and 
 should not return to, or revest in, him. But 
 both these opinions were considered erro- 
 neous : for with regard to the first, as the use 
 was limited to A. for life, remainder to B. in 
 fee, this was commensurate to the whole fee, 
 and did not admit of any intervening estate, 
 until that limited to the son should arise; be- 
 sides, if J. S. had a vested estate in remain- 
 der, he might enter for a forfeiture, and punish 
 waste, &c. ; and it is clear, that the parties 
 intended him no such benefit. With respect 
 to the second notion, it was thought to be 
 against the words and meaning of the statute, 
 which requires the grantee to be seised at the 
 time of the execution of the use. But the true 
 construction appears to be, that J. S. has not 
 an actual estate or seisin during the suspense 
 of the contingency ; nor is the whole seisin 
 
 ^See the case post, s. 8. 1 Co. 120. a.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 1 13 
 
 taken from him ; but that the possession is sect. ir. 
 executed according to the limitation of the Of the drcum- 
 uses; that as a new use will arise upon thesaryto theexe- 
 
 ,.,»«, ijit'j cutiou of uses. 
 
 birth of A. s son, so as to precede the limita- 
 tion to B., so upon that event a seisin, co- 
 extensive with the estate in use limited to 
 such son, will vest in J. S. for the purpose of 
 serving it : and that until the contingency 
 happens, J. S. has a mere possibility of seisin, 
 which may never become actually vested in 
 him. 
 
 The doctrine of scintilla juris, or possibi- 
 lity of seisin, has been generally admitted 
 since the decision in Chudleigh's case, in the 
 reign of Elizabeth 1 , until the late Mr. Fearne'" 
 suggested some doubts, as to the necessity 
 and propriety of it in the case of contingent 
 uses. The point has since become the sub- 
 ject of earnest controversy": but the author 
 of this work, following the received opinion , 
 considers the doctrine established upon prin- 
 ciple and authority; and consequently he 
 
 1 1 Co. 120. a. the doctrine of scintilla ju- 
 
 m 1 Fearne, 446 to 446. ris established. See Opi- 
 
 n Sugden on Powers, 17. nion at the end of Shep- 
 
 Note to Gilb. Uses, 296. herd's Touchstone. Indeed 
 
 Rowe's Bacon, 151. and his lord Eldon, in Mauudrell v. 
 
 Scintilla. Maundrell, 10 Ves. 255. 
 
 ° Probably no man more seems to consider the doc- 
 
 accurately understood the trine as peculiarly Mr. 
 
 laws of uses, aud the con- Booth's: " the use would 
 
 struction of the statute, " engraft itself upon what 
 
 than the late Mr. Booth; " Mr. Booth calls scintilla 
 
 and he certainly considered "juris, in the releasees." 
 
 VOL. I. I
 
 114 Of Uses since the [chap, n, 
 
 sect. ii. thinks that this possibility of seisin may be 
 of the ci,cuin_ released or destroyed, or by the failure of 
 
 stances neccs- J ^ 
 
 sary to the cxe- h e j rs f the grantee to uses become extin- 
 ction of uses. ° 
 
 sruished". 
 
 By what con- (q\ The words of the statute expressing 
 
 veyance the use 
 
 may be raised, the conveyance or deed, by which the use is 
 created, are these, " bargain, sale, feoffment, 
 " fine, recovery, covenant, contract, agree- 
 '* ment, will, or otherwise, by any manner of 
 " means whatever* 1 ." Notwithstanding the 
 generality of the above words, in order to 
 raise the use by the statute, there must be 
 either a direct or actual conveyance, operating 
 by way of transmutation of possession, or a 
 contract or covenant, operating as a bargain 
 and sale, or a covenant to stand seised to uses : 
 for as to contracts and agreements, which are 
 merely referrible to actual conveyances, they 
 certainly do not raise uses under the statute". 
 Thus , where T. S. by indenture, covenanted 
 and granted, in consideration that A. B. had 
 conveyed divers lands and tenements to him 
 in fee-simple after the death of the said A . B., 
 that the said T. S. would levy a fine to conu- 
 
 p See post, sec. 5. (0. 7.) Note to pi. 1. 22 Vin. 209. 
 
 sec. 8. (O. 3.) 
 
 'i It seems, that there n See Hore v. Dix, 1 Sid. 
 
 may be a surrender to a 25. Petfield v. Pearce, 2 
 
 use. Cro. Eliz. 080. A use Roll. Ab. 789. 
 
 cannot be raised upon a re- ° Bainton's case, Dy. 90. 
 
 Jease operating by way of a. Shep. Touch. 82. 
 Mitter h droit. 13 Co. 55.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 115 
 
 zees of others lands ; by which fine the said Sect. n. 
 other lands should be assured to the saidT. S. °? ,he circum - 
 
 stances neces- 
 
 for life, remainder to the said A. B. in tail; "7 j8 * e «- 
 
 ' ' cution of uses. 
 
 and no fine was levied : it was determined, 
 that the covenant to levy a fine did not of it- 
 self change or raise a use. 
 
 In another case p , A. by indenture cove- 
 nanted, that she would assure lands by reco- 
 very to B. (her son-in-law) to and for such 
 uses, as should in a subsequent part of the 
 said indenture be declared. B. covenanted, 
 that within eight months after the assurance 
 made, he would make an estate to A. for life, 
 remainder to B. and C. his wife in tail, re- 
 mainder over in fee. The recovery was suf- 
 fered accordingly; but no further declaration 
 of the uses was made in the said indenture; 
 nor were the estates conveyed by B. pursuant 
 to his covenant. It was held, that neither 
 the recovery, nor covenant by B. could 
 change or declare the use, so as to execute it 
 in A. for life, &c. ; and that it could not re- 
 sult to A. in fee : because as she had her re- 
 medy against B. at common law by an action 
 of covenant, no subpoena would lie to compel 
 him to execute the estate. 
 
 By more modern resolutions, it has been 
 determined, that articles entered into before 
 
 p Wingfield v. Littleton, ley's case, ibid. 166. a. 
 Dy. 162. a. See also Aud- 
 
 i 2
 
 1 1 6 Of Uses since the [ch a p . 1 1 . 
 
 sect. ii. marriage, to settle lands to certain uses, do 
 of the circum- n0 fc a l one raise the uses; but that an actual 
 
 stances neces- 
 sary to the exe- conveyance is necessary q . This principle 
 
 cution of uses. ^ 
 
 was adopted in the case of Trevor v. Trevor r , 
 There A., in consideration of an intended 
 marriage, covenanted with trustees before 
 the end of two years to settle lands upon the 
 said trustees, to the use of himself for life, 
 without waste, remainder to the use of his 
 intended wife for life, remainder to the use of 
 the heirs male of him on her body to be be- 
 gotten, and the heirs male of such heirs male 
 lawfully issuing, remainder to his own right 
 heirs: and A. covenanted, that in case the 
 uses were not well raised according to the 
 meaning of the articles, then he and his heirs 
 would stand seised of the premises, until such 
 time as a farther assurance should be made 
 thereof, to the uses mentioned in the articles. 
 No settlement was made pursuant to the ar- 
 ticles, and several years afterwards A. and his 
 wife levied a fine of the same lands to other 
 uses. The Lord Chancellor considered the 
 whole of these articles, as in their nature exe- 
 cutory : and, among other things, observed, 
 that the covenant to stand seised in the latter 
 end of them, could not be taken as a final 
 settlement from the words of it ; and that the 
 precedent part of them was provisional only, 
 
 « See Edwards v. Free- r 1 P. W. 622. 1 Eq. Ab. 
 
 man, 2 P.W. 436. 430. 447. 387.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 1 17 
 
 viz. to stand seised till a settlement should be Ssct.il 
 made a ^ '^ e c ' rcum ' 
 
 stances neces- 
 sary to the exe- 
 cution of uses. 
 
 The preceding cases are upon covenants or 
 contracts referring to a subsequent convey- 
 ance. The same rule seems to have prevailed, 
 where the covenant is merely executory, and 
 upon which an action of covenant appears to 
 have been the proper remedy, in case the co- 
 venant was not performed. Thus, when a 
 father covenanted with his eldest son, that 
 certain lands should, after the death of the 
 father, descend, remain, or be to the son and 
 his heirs ; no use arose upon this covenant, be- 
 cause, as the book states, it was executory, 
 and for which an action of covenant would 
 lie'. So where A., seised in fee, convenanted 
 with B. in consideration of a marriage to be 
 had between J. S. and J. D., that certain 
 lands should, after the death of A. remain 
 unto the use of the said J. D. and J. S. and 
 to the heirs of the said J. D. : the marriage 
 took effect; but it was determined, that no 
 use was raised by the covenant; it not being 
 
 » In Hylton v. Biscoe, 2 " he had the legal estate, 
 
 Ves. 304. 308. Lord Hard- " the covenant to stand 
 
 wicke seems to have thought " seised would have had its 
 
 differently: " If John the " operation in pointof law." 
 
 "father had had the legal s Blitheman v. Blitheraan, 
 
 "estate, the deed in 1694 Cro. Eliz. 279. See Benl. 
 
 "would have passed it; 121. pi. 163. Moor, 122. 
 
 " therefore it does not rest pi. 209. 
 " barely in covenant. If 
 
 I 3
 
 113 Of Uses since the [ciiap.il 
 
 sect. ii. a covenant to stand seised, but merely that 
 of the circum the lands should remain*. 
 
 stances neces- 
 sary to the exe- 
 cution of uses. 
 
 To the preceding observations, it seems 
 necessary to add the following case. — A. bar- 
 gained and sold land to B. and his heirs for 
 500/., upon condition that if A. paid B. 500/. 
 he might re-enter, and be seised to the use of 
 himself and his heirs, until he attempted to 
 alien without the assent of B., and then to 
 the use of B. and his heirs ; and a fine was 
 levied to those uses. A. paid the 500/. and 
 entered ; and afterward aliened to J. S. with- 
 out assent of B. 
 
 Per Ld. C. Egerton, no use will arise to 
 B. ; because A., entering for the condition 
 broken, ought to be in of the old use and es- 
 tate, and cannot be seised to the other use 11 . 
 
 Sect, in. III. Having considered the several cir- 
 
 As to the effect cumstances necessary to the raising and exe- 
 
 of the union of 
 
 the use and pos- cution of uses by the statute ; 1 shall now 
 state the effect of the transfer of the posses- 
 sion to the use by the statute, as between the 
 grantee and the cestuicjue use. 
 
 ' Buckler v. Syrnons, 2 daughter should take. See 
 
 Roll. Ab. 703. In Crossing the different cases upon 
 
 v. Scudamore, 1 Vent. 141. this point collected in pi. 
 
 it is said, that no use arose 1. 22 Vin. 211. 
 
 in the case in Moor, 122. " Holloway v. Pollard, 
 
 pi. 269. for the uncertainty, MborJ 761. 
 how it was iiitended the
 
 chap, ii.] Stat. 27 H. 8. c. 10. 119 
 
 1st. As to the estate of the grantee. It Sect. in. 
 is obvious, that as the statute has made the As to the effect 
 
 of the union of 
 
 estate of cestuique use lesral instead of equi- the use and pos- 
 
 1 ° * session. 
 
 table, and entirely divested the feoffees, re- T ., „ 
 
 »■■-•> "In respect to the 
 
 leasees, &c. of all estate whatever, most f' coffee ' releasee ' 
 
 &c. 
 
 the incidents, which attended the use in its 
 fiduciary state, are now at an end. With re- 
 spect to the feoffee, he has no interest at all 
 in the land ; and therefore on his account, it 
 cannot escheat, nor be forfeited ; nor is it sub- 
 ject either to dower or courtesy on account of 
 his momentary seisin w . However, as the sta- The grantee 
 tute only transfers the legal estate to the use, possesion of e 
 it does not interfere with the title-deeds: and t,tlcdteds * 
 therefore it is a point, which appears to me 
 to be clearly settled, that the feoffee, or 
 grantee to uses is entitled to the custody of 
 them*. Upon this account it has been re- 
 peatedly determined, that aprqfert is not ne- 
 cessary in pleading a gift under the statute 
 of uses\ 
 
 2dly. But as to the estate of cestuique use, 
 it is subject to escheat, to courtesy, dower, 
 and all the incidents, to which a legal estate 
 is liable 2 . 
 
 w See 2 Comm. 333. Cro. Jac. 217. Reynell v. 
 
 Sneyd v. Sneyd, 1 Atk. Long. Carth. 315. VVhit- 
 
 443. Note, pi. 31. Dyer, field v. Fausset, 1 Ves. 307. 
 
 283. b. 394. 
 
 x Estofte v. Vaughan, y See cases supra, and 
 
 Dyer, 277, a. Stockman 3 Term Rep. 156. 
 
 v. Hampton, Cro. Car. 441. r See 2 Comm. 333. 
 Huntingdon v. Mildmay, 
 
 I 4
 
 session. 
 
 ]20 Of Uses since the [chap. ii« 
 
 sect. hi. Rents conveyed or limited to uses are ex- 
 
 Asto the effect ecu ted by the statute: and cestuique use is 
 
 of the union of ^ _ x 
 
 the use and pos- entitled to all remedies and rights relative 
 thereto ; but not to collateral rights 2 . 
 
 The 14th section of the statute of uses, 
 which vests in cestuique use the same or the 
 like advantage, benefit, voucher, &c, is ex- 
 pressly confined to estates made before the 
 1st of May 1536; and from this circumstance 
 there is ground to suppose, that none of these 
 benefits would have been carried to the ces- 
 tuique use by the general words of the act. 
 But it is clear, that cestuique use is entitled 
 to all benefits and advantages inherent to the 
 estate, and to covenants running with, the 
 land. 
 
 In Lincoln College's case, it is said, " that 
 "he who hath a reversion by a limitation of 
 " a use, although he be in the post, yet he 
 " shall take benefit of a condition, as an as- 
 " signee* within the stat. of 32 H. 8. c. 34 b ." 
 
 1 Boscawen and Herle v. power of exchanging, re- 
 
 Cooke, 1 Mod. 223. 2 served in a settlement, there 
 
 Mod. 138. S. C. should be an express power 
 
 a But an assignee cannot reserved to the cestuique 
 
 take advantage of the im- use of entry in case of evic- 
 
 plied condition annexed tion. See tit. Lease and 
 
 to an exchange. Bustard's Release, 2 vol. at the end 
 
 case, 4 Co. 121. a. See of that title, 
 
 also Coventry v. Coventry, b Co. Litt. 215. a. b. Ap- 
 
 3 Atk. 365. It seems to powel v. Monuoux, Mo. 97. 
 
 follow, that where an ex- 8 Leon. 225. in Scot's case* 
 change is made under a
 
 chap, ii.] Stat. 27 H. 8. c. 10. 121 
 
 And in Smith v. Tyndal c , it is one of the Sect. in. 
 resolutions of the court, " that though a ces- As t0 the . eff ec 
 
 of (he union of 
 
 " tuique use is in the post, and not in the per, the use and pos- 
 
 1 session. 
 
 " yet he may take advantage of warranty 
 " annexed to his estate; ratio est, because by 
 " the statute of uses, the estate in law in pos- 
 " session is transferred to his use, and he is 
 " tenant of the legal estate, and has all ad- 
 " vantages, that the tenant had before to de- 
 " fend his estate ; therefore he may rebut, for 
 " that is to defend; but he cannot vouch, for 
 " that is to recover in value for the loss." 
 
 In the case of Roll v. Osborne d , Warbur- 
 ton thought, " that the stat. 27. H. 8. of uses 
 " gave the benefit of the warranty to cestuique 
 " use, and that he shall vouch as assignee, 
 " and have warrantia charts ; and that tenant 
 " for life created by an use, shall have benefit 
 " for his time of the warranty, and may 
 " vouch, or have warrantia chartae ; but that 
 " he must make his count accordingly." 
 
 IV. I proceed to explain, in what respects sect. iv. 
 legal estates created, or uses executed, by Of limitations 
 
 of uses which 
 
 the statute, correspond with the rules of the agree with the 
 
 , rules of the 
 
 COmmOll law. common law. 
 
 And first, with respect to the limitation of 
 estates in fee-simple. 
 
 c 2Salk.685. d Mo. 859. pi. 1180. 
 
 Trin. 9 Jac.
 
 122 Of Uses since the [chap. ii. 
 
 sect. iv. It is settled, that the same words, which 
 
 of limitations are necessary to create an estate in fee upon 
 
 of uses which ^ •*• 
 
 agree with the a conveyance at common law, are equally ne- 
 commoniaw. cessary upon a conveyance to uses since the 
 As to estates in statute. It is true, that if before the statute, 
 a man had bargained and sold his lands for a 
 valuable consideration, without having limit- 
 ed the use to the heirs of the bargainee, chan- 
 cery, which considered the intention of the 
 parties, would have decreed an estate in fee 6 . 
 But as the statute now executes the use, and 
 the bargainee has a legal estate, the same con- 
 struction must be had upon this legal estate 
 by the statute, as upon estates by the com- 
 mon law ; and, therefore, in the case put, the 
 bargainee since the statute, can only have an 
 For life. estate for life f . So it seems, that if a feoff- 
 
 e 1 Co. 100. b. 
 
 1 Corbet's case,ibid.87.b. 
 Jenkins, 332. pi. 65. » Tbe 
 " use of a fine is limited to 
 " A. by indenture, without 
 " mention of any estate in 
 <{ particular: this is an es- 
 " tate for life." 
 
 It is proper to notice in 
 this place the case of Ken- 
 worthy v. Bate, 6 Ves. 793. 
 An estate was settled by 
 deed "to the use of such 
 " child or children of B. P. 
 " without adding, for such 
 " estate or estates), as the 
 " said B. P. should by will 
 " appoint." The Master of 
 the Rolls is reported to have 
 said, " In this case, there is 
 " an absolute power to give 
 " the fee-simple to any one 
 " of the children." 
 
 It is probable, that the 
 Master of the Rolls did not 
 advert to the omission in 
 the power of the words, 
 " for such estate or estates;'' 
 for it would be difficult to 
 show, that the power with- 
 out these words would au- 
 thorize the appointment of 
 the legal estate in fee- 
 simple to a child. If the 
 estate had been settled by 
 the deed itself" to the use 
 " of the child or children 
 « of B. P.," without add- 
 ing words of limitation, 
 the children would, beyond 
 doubt (even in the case of 
 a will, Foster v. Romney, 
 11 East, 594.), have taken 
 life-estates only : and the 
 power merely authorizing 
 an appointment " to the
 
 chap, ii.] Stat. 27 H. 8. c. 10. 123 
 
 ment be made to the use of B. and his heirs sect.iv. 
 male lawfully engendered, as this limitation 0f 'imitations 
 
 ** " ° of uses which 
 
 would at common law have created an estate agree wHbibe 
 
 rules of the 
 
 in fee-simple, so it will upon a conveyance to common law. 
 uses g . 
 
 (2.) It is a rule generally established, that Estates tail. 
 the word heirs is necessary to create an estate 
 tail upon a conveyance at common law h . It 
 is the same with respect to a deed operating 
 by way of use. Therefore, if a feoffment be 
 made to the use of J. S. and the issue, or issue 
 male, of his body, this limitation cannot raise 
 an estate tail in J. S. 1 In the case of Leigh 
 v. Brace, a feoffment was made to A. and B. k > 
 and their heirs, to the use of W. B. for life, 
 with remainder to the use of T. B. and his 
 heirs for ever ; and for default of issue of the 
 
 " use of such child or chil- a power, where there were 
 " dren;" upon what ground no words of a similar im- 
 can the limitation of the port. See King v. Mar- 
 use by the exercise of the quis of Stafford, 7 East, 
 power be more extensive, 521. 526. 
 than the same limitation e Abraham v. Twig, Cro. 
 would have been, if origin- Eliz. 478. note 2. Har. Co. 
 ally inserted in the deed Litt. 20. b. 
 itself? In a subsequent case h Co. Litt. 20. a. 2 Inst, 
 of a will, where there is a 334. 
 
 greater latitude of con- 'Nevel v. Nevel, 1 Roll, 
 
 struction, the Court of Ab. 837. 1 Brown!. 152. 
 
 King's Bench considered Makepeace v. Fletcher, 
 
 the words, " in such man- Com. Rep. 457. 
 " ner and form," to be k Carth. 343. 3Salk.337. 
 
 equivalent to the words, 1 Ld. Raym. 101. Rep. 
 
 "for such estate or estates;" Temp. Holt, 668. 5 Mod. 
 
 but declined to give any 266. 
 opinion upon the effect of
 
 124 Of Uses since the [chap. ii. 
 
 Sect. iv. body ofT. B., remainder over. It was ad- 
 of limitations judcred, that T. B. took an estate tail. This 
 
 of uses which ** ~ 
 
 agree with the case, however, cannot be considered as an au- 
 
 rules'of the 
 
 common law. thority against the rule alluded to : for as the 
 limitation was to T. B. and his heirs, the sub- 
 sequent words, in default of issue of the body, 
 were only intended to explain the extent of 
 the preceding limitation, or what particular 
 class of heirs should take, viz. heirs of the 
 body. In this view, the same limitation would 
 have created an estate tail at common law 1 ; 
 and it is observable, that none of the report- 
 ers of this case (except Carthew) mention, 
 that it was determined upon the principle, 
 that limitations in a conveyance, operating by 
 way of use, should be construed in a different 
 manner from mere common law conveyances. 
 But admitting the case to have been adjudged 
 upon the principle stated by Carthew, the 
 subsequent case of Makepeace, v. Fletcher 1 " 
 has established the doctrine in Nevel v. 
 Nevel. 
 
 (3.) Whether words regulating or modify- 
 ing an estate created by a deed, operating by 
 way of use, shall be construed in a different 
 manner, when applied to a common law con- 
 veyance, is a point, upon which there has been 
 
 1 See Perk. s. 171. 173. 279. Mr. Booth's opinion. 
 
 Year Book 19 Hen. 6. 74. Co. Litt. 20. b. Year Book 
 
 per Varapage.Co. Litt. 21. 5 Hen. 5. 6. Shelly v. Sars- 
 
 a. Note to 1 P. W. 57. 2 field, 10 Vin. 256. pi. 9. 
 Vol. of Cases and Opinions, m Com. Rep. 457.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 125 
 
 a difference of opinion. Lord Hardwicke, in sect.iv. 
 a case where the question was, whether the °/ limitatio . n * 
 
 » ' of uses which 
 
 words, equally to be divided, would create a a s ree w j th L the 
 
 7 ■* ** rules of the 
 
 tenancy in common, in a deed operating by common law. 
 way of use, observed, that though limitations words of modi- 
 in a deed to uses could have no greater lati- facat1011, 
 tude than in common law conveyances, yet 
 as to words of mere regulation or modification 
 of the estate, he saw no harm in giving them 
 a reasonable construction to answer the in- 
 tention; and he accordingly held, that those 
 words created a tenancy in common": on the 
 other hand, Lord Thurlow, in a case nearly 
 similar , expressed himself thus : " The ques- 
 " tion is, whether deeds to uses, in the nature 
 " of wills, should be construed so widely 
 " as wills have been? I should be sorry to 
 " give into this; for I think no good has 
 *' been done by the wide construction of 
 " wills." 
 
 Yet it seems to have been in fact deter- 
 mined, that both in a covenant to stand seised 
 to uses, and in a lease and release a , and in a 
 
 n Rigden v. Vallier, 2 " in limitation of uses,where 
 
 Ves. 252. 257. 3 Atk. 731. " the intent is to guide the 
 
 See alsoGoodtitlev. Stokes, " estate, no more than 'tis 
 
 1 Wils. 341. and 2 Vent. " in devises." Moore, 
 
 365. Fisher v. Wigg, 1 P. 519. Arg. cites Paget's case, 
 
 W. 14. " Though the law 31 Eliz. 
 
 " is strict against estates at * Strattou v. Best, 2 Bro. 
 
 " common law, which are Cha. Rep. 233. 
 
 " to arise upon conditions * Goodtitle v. Stokes, I 
 
 " precedent, yet it is not so Wils. 341. 2 Vent. 365.
 
 126 Of Uses since the [chap. n. 
 
 Sect. iv. surrender of copyhold property 6 , the words, 
 oninfitations "equally to be divided" will create a tenancy 
 
 of uses which . 
 
 agree with the in common. There has then been a deviation 
 
 rules of the . • i /> 1 i 
 
 common law. from the strict rule of the common law, in 
 the case of creating a tenancy in common ; 
 and this deviation has been derived from the 
 construction of wills, in order to favour the 
 intention. It may, therefore, be a question, 
 how far the rule as to wills may be extended 
 to limitations of uses ? The word, " respec- 
 " tive c ," and the word, " several* ," in a will? 
 seem equivalent to the words, u equally to be 
 "divided;" and ought not these words to 
 have a similar operation in the limitation of 
 uses? 
 
 As to the cesser (4.) It is a maxim of law, that a condition 
 
 of the estate of ... . , . 
 
 tenant in tail or limitation annexed to an estate ought to 
 destroy the whole of the estate, to which it is 
 annexed, and not a part only of it p . This 
 rule is applicable to limitations by way of 
 use, which operate, so as to defeat or avoid 
 estates : therefore, if an estate be limited to 
 the use of J. S. in tail, with a proviso, that if 
 he do such an act, his estate shall cease during 
 his life, this proviso is void 1 . It was agreed, 
 that lands should be limited to the use of 
 H. C. and the heirs male of his body, with 
 
 b Fisher v.Wigg, IP. W. d See Sheppard v. Gib- 
 
 L4. bons, 2 Atk.441. 
 
 c Per Roll. C. J., in For- p 1 Co. 06. b. 4 Burr, 
 
 rell v. Frampton, Lyle, 434. 1941. Litt. s. 720, 721. 
 
 and see Heatlie v. Heathe, 722, 723. 
 
 2 Atlv. 121. ' ! 1 Co. 86. b.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 127 
 
 divers remainders over, and with this pro- Sect. iv. 
 viso, " That if the said H. C. or any of the ° f imitations 
 
 . of uses which 
 
 " heirs males of his body, should attempt or agree with the 
 
 rr n 1 j • ru ' es °* trie 
 
 "make any feoffment, &c., that his estate common law. 
 " should cease, as if he was dead, and that 
 " then the said W. B. and the other feoffees, 
 " and their heirs, should stand seised to the 
 " use of such person, to whom it ought to de- 
 " scend or remain by the said deed intended, 
 " as if he was dead, with the remainders over 
 " as aforesaid." The proviso was considered 
 repugnant and void r . However, as a condi- 
 tion may be annexed to an estate tail to de- 
 termine it wholly by the re-entry of the donor 
 or his heirs 3 , so a limitation by way of use 
 may enure to defeat an estate tail, as if tenant 
 in tail were dead, ivithout heirs of his body 1 . 
 This doctrine has given rise to the introduc- 
 tion of two species of provisoes in modern 
 practice. The one is adopted in a settlement 
 of estates, where it is intended, that the per- 
 son in possession of them, under the settle- 
 ment, should use the name, and bear the arms 
 of the settlor ; and in case of refusal or neg- 
 lect, that the uses and estates thereby limited 
 shall cease and determine, as if the person so 
 refusing or neglecting, being tenant for life, 
 were dead, or being tenant in tail, were dead 
 
 * Cholmley v. Humble, 8 Litt. s. 362. Croker v. 
 
 cited 1 Co. 86. a. See Cor- Trevithin, Cro. Eliz. 35. 1 
 
 bet's case, ibid. 83. b. Mild- Leon. 292. 
 
 may's case, 6 Co. 40. a. ' Vide Mary Portiugton's 
 
 Tarrant's case, Moor, 470. case, 10 Co. 36.
 
 128 Of Uses since the [chap. ii. 
 
 Sect. iv. without issue, inheritable under the intail u . 
 of limitations The other proviso is used in settlements, for 
 
 of uses -which * 
 
 agree with the the purpose of defeating the estate of a tenant 
 
 common law. j n tail, in case he shall become entitled to a 
 
 certain other estate ; and limiting or shifting 
 
 the use upon that event, to another person, as 
 
 if such tenant in tail were dead without issue v . 
 
 Fractions in the (5.) Another maxim is, that a man can- 
 
 limitations of . • . 
 
 the use. not make a fraction in an estate, in the case of 
 
 a limitation by way of use, which cannot be 
 done in a conveyance by livery in possession. 
 Therefore Walmesley w , justice, said, " If a 
 " man makes a feoffment in fee of land to 
 " the use of A. and his heirs every Monday, 
 " and to the use of B. and his heirs every 
 " Tuesday, and to the use of C. and his heirs 
 " every Wednesday, these limitations are 
 " void, for we do not find any such fractions 
 " of estates in law." 
 
 Uses cannot be (Q\ \t remains to observe, that the statute 
 
 limited so as to 
 
 abrogate the executes no limitations of a use, which if exe- 
 
 taw. 
 
 cuted would be fraudulent, and thereby abro- 
 gate the law. Thus, if there be a limitation 
 to the use of A. and his heirs, provided that 
 if he give a mortal blow to any person, the 
 
 u See the form of such Bridg. Con. 304. also Nicolls 
 
 power, Butl. note, 2 Co. v. Sheffield, 2 Bro. Cha.Ca. 
 
 Litt. 327. a. and 2 Bridg. 215. Doe v. Heneage, 4. 
 
 Con. 8. 10. 4G9. 575. and Term Rep. 13. Stanley 
 
 Appendix I. v. Stanley, 16 Ves. 491. 
 
 T See Appendix II. 1. w 1 Co. 87. a.
 
 chap, ii.] Stat. 27 //. 8. c. 10. 129 
 
 use shall cease as to him, and remain over; Sect.iv. 
 this is fraudulent to prevent an escheat, and ° f f limi,at »<? n i s 
 
 1 'of uses which 
 
 therefore void 7 . a s ree with the 
 
 rules of the 
 common law. 
 
 V. However, in some cases the manner of Sect. v. 
 creatine: and limiting: estates has undergone °, flimi,ations 
 
 ° ° ~ of uses, and cre- 
 
 considerable alterations since the introduc- ationof le e al 
 
 estates by the 
 
 tion of conveyances to uses. statute, which 
 
 differ from the 
 rules of the 
 common law. 
 
 (l.)lt was absurd, that a man should 
 make a conveyance, or give possession by of uses limited 
 
 J or •'to, and legal 
 
 livery of seisin, to himself; and therefore if a estatesvestedin, 
 
 the grantor by 
 
 feoffment had been made to a stranger and his own con- 
 
 vevsnec. 
 
 the feoffor, the stranger took the whole 2 . But 
 now, if a feoffment be made to the use of the 
 feoffer, or to the use of the feoffor and a 
 stranger, it is a good limitation of the use, 
 and the statute executes it in the feoffor alone 
 in the first instance, and in him and the 
 stranger in the second. As this manner of 
 limiting the use to, and vesting the legal 
 estate in, the feoffor, releasor, &c. by one and 
 the same conveyance, is quite contrary to the 
 simple mode of conveyancing adopted by the 
 common law, so it is the more convenient 
 and the less expensive method. Thus, for 
 example, it frequently happens, that upon 
 the death or removal of trustees, it becomes 
 necessary to fill up their number pursuant to 
 a power for that purpose usually introduced 
 
 y Moor, 633. 3 Atk. 180. z Perk. s. 203, 
 
 VOL. I. K
 
 j 30 Of Uses since the [chap. n. 
 
 sect.v. into settlements of real property. In order 
 of limitations y effect this, it is now the practice for the 
 
 of uses, and 
 
 creation of le- old trustees to make a conveyance, which 
 
 gal estates by . • 
 
 the statute, operates by way of transmutation of posses- 
 winch differ . . 
 
 from the rules sion (generally by lease and release) unto 
 ?aw. ' the new trustees and their heirs, to the use of 
 
 the old and new trustees and their heirs a . 
 Without the assistance therefore of the sta- 
 tute of uses, it would have been necessary in 
 the above case, that the old trustees should 
 have first enfeoffed A. B., who would have 
 re-enfeoffed the old and new trustees jointly; 
 thereby making two conveyances necessary. 
 Indeed, in the case of terms of years and 
 other personal property, two assignments are 
 still required for the above purpose 5 . 
 
 As a man could not at common law con- 
 vey to himself, so neither could he make a 
 conveyance to his wife ; but by limiting a 
 seisin to the feoffee, releasee, &c. he may 
 declare the use to his wife, which use will be 
 executed by the statute d . 
 
 This method of vesting the legal estate in 
 the grantor by his own conveyance can be 
 effected by a feoffment, fine, recovery, or lease 
 
 a See precedents, 1 Moyse v. Gyles, 2 Vern. 
 
 Horsra. 319. 334 to 343. 385. Lucas v. Lucas, 1 
 
 b See a precedent, 1 Atk. 271. note 2. last Ed. 
 
 Horsm. 303 to 307. d Co. Litt. 112. a. 
 
 c Co. Litt. 3. a. 114. 
 
 a
 
 chap, ii.] Stat. 27 H. 8. c. 10. 131 
 
 and release; for in each of these, the seisin Sect. v. 
 is conveyed to the feoffee, &c, and that seisin °/ limitations 
 
 * J J of uses, and cr 
 
 is sufficient to serve uses declared to the feof- atio ? of J egal 
 
 estates by the 
 
 for, &c, or to any other person. But in a statute, which 
 
 ^ l differ from the 
 
 bargain and sale, where the use first passes, rules of the 
 
 ° m 4 common law. 
 
 and then the possession is executed in the 
 bargainee by the statute, no other use can be 
 declared upon his estate; according to the 
 rule, that a use cannot be limited to arise out 
 of a use 6 . And yet a man may covenant to 
 stand seised to the use of himself. 
 
 (2.) By the common law a man could of uses limited 
 
 . i i • i / /.to the heirs of 
 
 not make his cwn heir a purchaser, even of t h e bodj f the 
 an estate tail 1 . This maxim was indeed a ^ eD y descent 
 necessary consequence of the preceding rule, or P urchase - 
 that a man could not convey, nor limit a re- 
 mainder to himself; iovfilius est pars patris g 
 — hceres est pars antecessoris h . Therefore if 
 a gift had been made in tail or for life, with 
 remainder to the heirs made of the body of mei*& 
 the grantor, this remainder would have been 
 void 1 . But since the introduction of uses, a 
 man may limit the use, so as to make his heirs 
 special take either by purchase or by descent. 
 Thus, if J. S. make a feoffment to A. in fee, 
 to the use of himself for life, with remainder 
 to the use of the heirs of his body; this is a 
 
 e Dyer, 155. a. b. 1 Co. b Co. Litt. 22. b. 
 136. b. 137. a. ' Greswold's case, Dy. 
 
 f Co. Litt. 22. b. 156. a. 
 
 8 Moor, 720. Dyer, 9. pi. 
 20. 
 
 K 2
 
 132 Of Uses since the [chap. ii. 
 
 sect. v. good estate tail executed in J. S k . So if the 
 of limitations use be limited to A . for life, with remainder to 
 
 of uses, and ere- ... /. 1 • i p ■» ci • 1 ■• 1 
 
 ation of legal the heirs of the body of J. S., in this case also 
 
 cstfitcs bv the 
 
 statute, which the heirs of the body will take by descent 1 : 
 ruiet of the for as the limitation to A. for life may deter- 
 mine during the life of J. S. (the grantor), 
 the law implies a use in J. S. for life, expect- 
 ant upon the determination of the estate of 
 A. ; according to the principle, that so much 
 of the use, as is not disposed of, results to 
 the grantor; and this implied estate in J. S. 
 for life in remainder, is sufficient to consoli- 
 date with the limitation to the heirs of his 
 body ; pursuant to the rule, that where there 
 is a limitation to the ancestor for life, with a 
 limitation to his heirs, or heirs of his body, in 
 the same conveyance, the heirs, or heirs of 
 the body, do not take by purchase, but by 
 descent" 1 . But if a feoffment be made to the 
 use of A. and his heirs during the life of the 
 grantor, with the remainder to the use of the 
 heirs of the body of the grantor; as the use 
 is expressly limited away during the life of 
 the grantor, there can be no implied estate in 
 him, so as to consolidate with the limitation 
 to the heirs of his body, and therefore his 
 issue must in that case take by purchase". 
 
 k Co. Litt. 22. b. " Tippin v. Cosin, Carth. 
 
 1 See Wills v. Palmer, 5 272. 4 Mod. 380. Else v. 
 
 Burr. 2615. 2 Black. 087. Osborne, 1 P. W. 387. See 
 
 '" See Fearne, 54 to 62. Fearne, 62. 
 4th ed.
 
 chap, iij Stat. 27 H. 8. c. 10. l.j.j 
 
 But a grantor cannot even under a con- SEeT - v - 
 veyance, which operates by way of use, enable °/J s i e nitati 'j ns 
 his heir general to take a remainder as nur- ation «fie g ai 
 
 ° r estates by the 
 
 chaser, under a limitation to his heirs: but s , ta i ute - which 
 
 differ from the 
 
 where the limitation is to the right heirs of mlesoftlie 
 
 . common law. 
 
 the grantor, the use so limited, is construed 
 to be the old use, and will be executed in him 
 as the reversion in fee, and not as a remainder . 
 Thus if a fine be levied to the use of the wife 
 of the conuzor for life, remainder to the use 
 of another in tail, remainder to the use of the 
 right heir of the conuzor ; the last limitation 
 of the use is void as a remainder ; for the old 
 use of the fee continued in the grantor as a 
 reversion 9 . So where a feoffment was made 
 to the use of the feoffor for 40 years, without 
 impeachment of waste, and afterwards to the 
 use of C. his second son in tail male, with 
 remainder to the use of the right heirs of the 
 feoffor; it was determined, that the use limit- 
 ed to the right heirs was the old use ; that it 
 was void as a remainder, and was merely the 
 reversion" 1 . 
 
 See 1 Co. 129. b. 130. Cholmondely v. Lord Clin- 
 
 a. Godolphin v. Abiugdon, ton, 2 Jacob and Walker, 1. 
 2 Atk. 57. This must be p Fenwick v. Mltford, 
 
 understood with the qualifi- Moor, 284. 1 Leon. 182. 
 
 cation, that the heir general Co. Litt. 22, b. Read v. 
 
 may take under a limitation Errington, Cro. Eliz. 321. 
 
 as a purchaser in the shape S. C. Semb. 
 of a contingent remainder, * Earl of Bedford's case, 
 
 as a limitation to such per- Moor, 718. 1 Co. 130. a. 
 
 son, as at the time of the Cro. Eliz. 334. Har. Co. 
 
 determination of the parti- Litt. note 3. 22. b. Bing- 
 
 cular estates, shall be the ham's case, 2 Co. 91. b. 
 right heir. See Marquis of 
 
 K 3
 
 134 Of Uses since the [chap. ii. 
 
 Sect. v. The difference is material. The grantor 
 
 of limitations taking the limitation to his right heirs, as a 
 
 of uses, and ere- 3 l ~ 
 
 ation of kgai reversion, it is his property, and he may grant 
 
 psiiiH's oy nit- 
 
 statute, which or d ev i se it. But if the right heir took as a 
 
 differ from the i i i 
 
 rules of the purchaser, the remainder would belong to him, 
 
 common law. ■* , . iii iii 
 
 and the grantor himself would be excluded 1 . 
 
 Sir Francis Bacon has observed, " that the 
 " very letter of the statute doth take notice 
 " of a difference between an use in remainder 
 "and an use in reverter; which though it 
 " cannot be properly so called, because it 
 " doth not depend upon particular estates, as 
 " remainders do, neither did they before the 
 " statute draw any tenures, as reversions do ; 
 " yet the statute intends, that there is a dif- 
 " ference, when the particular use and the use 
 " limited upon the particular use, are both 
 " new uses ; in which case it is a use in re- 
 " mainder ; and where the particular use is a 
 " new use, and the remnant of the use is the 
 " old use, in which case it is a use in re- 
 " verter\ n 
 
 of limiting the (3.) Again : by the common law, gene- 
 use by the ha- , , , . i i i 
 
 bmdum to a rally speaking, no person could take a present 
 named in the interest by the habendum of the deed, who 
 was not named in the premises 4 . But in a 
 
 r " Lands granted by A. s Bac. Uses, 45, 46. 
 
 " by fine, for the life of A., * 2 Roll. Ab. 67. Hob. 
 
 "remainder to A.'s right 313. note 4. Har. Co. Litt. 
 " heirs. It is a reversion in 26. b. But see Spry v. 
 " A., and he may grant it." Popham, 3 East, 115. 
 Note 3. Har. Co. Litt. 22. 
 b. See Jenk. 248. pi. 38. 
 and ante 64. in note. 
 
 premises.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 135 
 
 case", where A. enfeoffed B., habendum to Sect. v. 
 the said B. and C. their heirs and assigns, to °/ limitations 
 
 of uses, and cre- 
 
 the use and behoof of the said B. and C. their ation °f legal 
 
 estates by the 
 
 heirs and assigns : it was resolved, that as C. statute, which 
 
 ' , differ from the 
 
 was not named in the premises, he could take rules of the 
 
 . . hi i ii i common law. 
 
 no possession originally by the habendum ; 
 and that the livery, made according to the 
 intent of the indenture, did not give any thing 
 to C, because as to him it was void ; but 
 though the feoffment did not give any seisin to 
 C, yet it did to B. and his heir, which seisin 
 was sufficient to serve the use declared to C. 
 Therefore the use limited to B. and C was 
 good, and the statute executed it. But this 
 limitation of the use in a bargain and sale 
 to a person not named in the premises, after a 
 previous disposition of it to the bargainee, 
 would be void, for the reasons before men- 
 tioned. 
 
 (4.) So it is a rule of law, that if an estate of uses limited 
 
 ^ . to two, the one 
 
 be conveyed to two, the one being capable, being inca- 
 and the other incapable, at the time of the 
 grant, he who is capable shall take the whole 3 ; 
 and that joint tenants cannot take at different 
 periods\ But since the introduction of uses, 
 if A. make a feoffment in fee, to the use of 
 B. and his wife, that shall be; though the 
 
 u Sanime's case, 13 Co. a 1 Co. 100. b. 2. 13 Co. 
 
 55. See as to an exception 57. 
 
 after an estate limited by b Co. Litt. 9. a. 188. a. 2 
 
 way of use, Tregraiel v. Roll, Ab. 417. p!. 8. 
 Reeve, Cro. Car. 437. 
 
 K 4
 
 13G Of Uses since the [chap. n. 
 
 Sect. v. whole estate will vest in B. at first, yet upon 
 of limitations his marriage the wife shall take jointly with 
 
 of uses, and ere- n •/• j • • • i • 1 i 
 
 ation of legal him . So if a disseisin be had to the use of 
 statute, whieh two, and the one agrees to it at one time, and 
 ruieTofThe c the other at another, they shall be joint- 
 
 common law. a 
 
 tenants . 
 
 Of uses limited (5.) No estate of freehold can by the com- 
 
 in future, and , , - •/••••■ 
 
 to persons not mon law be granted to commence mjuturo ; 
 
 in esse, where .,, . . , • i ■ 1 
 
 no particular neither can a contingent remainder be sup- 
 estate is express. • ■% • •l , ,• i > . /> 
 
 ly limited ported without an express particular estate of 
 freehold. Therefore, if a grant be made to B. 
 and his heirs to commence four years after 
 the grant, or to A. for years, with remainder 
 to the right heirs of J. S. who is living f , in 
 either case the grant is void. But if a con- 
 veyance be made to J. S. for life, with re- 
 mainder to the first son unborn, or right 
 heirs, of J. D. ; or if a feoffment and livery 
 be made to J. S. for ten years, with remainder 
 to J. D. and his heirs; in these cases the in- 
 tervening estates are sufficient to support the 
 remainders. Now in conveyances to uses, the 
 courts have supported these future limita- 
 tions, when no particular estate has been 
 created, either in the shape of remainders, or 
 as springing uses 3 . Thus, if a man covenant 
 
 c Mutton's case, Moor, c Barwick's case, 5 Co. 
 
 96. Dyer, 274. b. 1 Co. 94. b. 2 Vent. 204. Roe v. 
 101: a. Sarame's case, 13 Traumer, 2 Wils. 75. 
 Co. 57. See Wells v. Fen- f Co. Litt. 217. a. 
 
 ton, Moor, 634. Stratton v. a See 1 Atk. 586. 
 
 Best, 2 Bro. Ch. Ca. 233. 
 
 d Co. Litt. 188. a. 13 Co. 
 57.
 
 chap. II.] Stat. 27 H. 8. c. 10. 137 
 
 to stand seised to the use of the heirs of his Sect. v. 
 own body b , or to Ihe use of another after his of limitations 
 
 " of uses and ere 
 
 own death 1 ' or if he bargain and sell his ationof legal 
 
 estates by the 
 
 lands after seven vears d ; in each of these statute, which 
 
 differ from the 
 
 cases the grant is good, and until the event rules of the 
 
 . common law. 
 
 takes place, the use results. J3ut in convey- 
 ances operating by way of transmutation of 
 possession, it is necessary, that a present sei- 
 sin should be transferred in order to serve 
 the resulting use. Thus if a feoffment, or 
 lease and release, be made to J. S. and his 
 heirs, to the use of J. S. and his heirs, to 
 commence four years from thence, or after 
 the death of the grantor 6 , the limitation of 
 the use to J. S. is good, for during the four 
 years, or the life of the grantor, it will result 
 and be executed. But if the conveyance had 
 been to J. S. and his heirs after the death of 
 the grantor, to the use of J. S. and his heirs ; 
 it would have been void ; because it is the 
 grant of an estate of freehold to commence 
 in future?. 
 
 When a feoffment is made to A. and his 
 heirs, to the use of the heirs of the body of 
 the grantor, the limitation to the heirs of the 
 body takes effect upon the death of the gran- 
 
 b Carth. 263. See 22 Vin. A Bac. Uses, 63. 
 
 283. pi. 2. and the cases c See 2 Salk. 675. and 
 
 collected in the note. the above cases. 
 
 c Osman v.Sheafe, 3 Lev. f Roe v. Tranmer, 2 Wils. 
 
 370. Roe v. Tranmer, 2 75. Lamb v. Archer, 1 
 
 Wils. 75. Salk. 225.
 
 138 Of Uses since the [chap. ir. 
 
 s*cr. v. tor, not as a springing use, but as a remain- 
 Of limitations der ; and the use resulting to the grantor for 
 
 of uses, and ere- ........ r , 
 
 ation of legal his life by way oi particular estate, the gran- 
 
 estates bv the . • „ , . , 
 
 statute, which tor, by the union ot the particular estate 
 
 differ from the , ,, -, , . . . . . . . 
 
 rules of the and the remainder becomes tenant in tail in 
 possession 5 . If the whole fee had resulted to 
 the grantor, the heirs of his body would have 
 taken, as purchasers, by way of springing 
 use : but the decision is formed upon the true 
 construction of the statute of uses ; that so 
 much of the use, as the grantor has not dis- 
 posed of, and no more, results to him. 
 
 But in other cases, not substantially differ- 
 ing, as it appears to me, in principle, from 
 the above, another construction is said to 
 have been established. In Davies v. Speed, 2 
 Salk. 675. the chief justice held, "thatafeoff- 
 " ment to the use of A. and his heirs, to com- 
 " mence four years from thence, was good as 
 " a springing use, and that the whole estate 
 " remained to the feoffor in the mean time ; 
 " so it is, if it were to commence after the 
 " death of A. without issue, if he died with- 
 " out issue in twenty years." This doctrine 
 is assumed by others 1 '; but it does not appear 
 
 g 1 Roll. Rep. 240. 22 the case of Canvardine v. 
 Vin. 283. and the cases Carwardine, Fearne by But- 
 cited in note, pi. 2. and 2 ler, 388. In the case of 
 Freem. 235. pi. 307. 258. Pybus v. Mitford, 1 Ventr. 
 pi. 326. Ante 101, 102. 379. Hale, chief justice, 
 
 11 See Pollex. 30. in the says, " so if he covenants 
 
 case Weale and Lower ; and " to stand seised to the use
 
 chap. II.] Stat. 27 II. 8. c. 10. 139 
 
 to have been considered with any degree of Sect. v. 
 attention. Bacon (G.'i,) expressly says, " If of limitations 
 
 x ' *■ * * of uses, and cre- 
 
 "I bargain and sell my land after seven afon of legal 
 
 ° _ estates by the 
 
 " vears, the inheritance of the use only pass- statute, which 
 
 J ' . J r differ from the 
 
 " eth ; and there remains an estate for years rules of the 
 
 /* i • n i ... common law. 
 
 " by a kind of subtraction of the inhent- 
 " ance ;" and this seems to be the proper 
 construction of the statute. 
 
 In the case of Davies v. Speed, before no- 
 ticed, a husband and wife, seised in right of 
 the wife, convey by fine and deed to the use 
 of the heirs of the body of the husband on 
 the wife begotten ; and for default of such 
 issue, to the use of the right heirs of the hus- 
 band. They had issue, which died in the life- 
 time of the husband and wife. The wife dies; 
 then the husband dies; and the question was, 
 whether the limitation to the right heirs of 
 the husband was good ? According to Sal- 
 keld's report of this case, it is said to have 
 been determined ; first, that no estate for life 
 resulted to the husband, because the estate be- 
 longed to the wife; " secondly, this limitation 
 " to the heirs of the body of the husband, &c. 
 " was merely void; for taking it as a remain- 
 " der, there is no precedent estate of freehold 
 
 " of J. S. after 40 years, of the terra of 40 years, 
 
 " there is a fee-simple de- the covenant does not take 
 
 " terminable in the cove- effect. Until that period, 
 
 " nantor. This is intelli- there is not any seisin to a 
 
 gible; for till the expiration use. See also 1 Leon. 194.
 
 140 
 
 Sect. V. 
 
 Of limitations 
 of uses, and cre- 
 ation of legal 
 estates bv the 
 statute, which 
 differ from the 
 rules of the 
 common law. 
 
 Of Uses since the [chap. it. 
 
 " to support it ; and taking it as a springing 
 " use, then it is a springing executory use to 
 " arise after a dying without issue, which the 
 " law will not expect." 
 
 There is a manifest error in this report of 
 the second resolution, by referring to the 
 limitation to the heirs of the body of the 
 husband and wife, instead of the limitation to 
 the right heirs of the husband ; for the ques- 
 tion was, whether the limitation to the right 
 heirs of the husband was good ; and unless 
 the resolution is taken with reference to that 
 limitation, then the observation, " taking it 
 " as a springing use, then it is a springing 
 " and executory use to arise after a dying with- 
 " out issue,"" would not have been applicable. 
 
 Springing uses. But the conclusion in that case, that the 
 limitation to the right heirs of the husband 
 was void as a springing use, is not very intel- 
 ligible. A springing use indeed, to take ef- 
 fect after a general dying without issue, 
 where it is not preceded by an estate tail in 
 the issue, is, no doubt, illegal ; but that was 
 not the case in Davies v. Speed. Admitting, 
 in that case, that the use did not result to the 
 wife and her heirs by way of particular estate 
 so as to support the limitation to the heirs of 
 the body of the husband and wife as a con- 
 tingent remainder, still the limitation to the 
 heirs of the body might have been good as a
 
 chap, ii.] Stat. 27 H. 8. c. 10. 141 
 
 springing use, to take effect upon the decease sect. v. 
 of the husband; and if that limitation had Of limitations 
 
 rr l ill l I • °* USes ' an( * cre " 
 
 taken enect, there could have been no objec- ationofiegai 
 
 1 t «, • i • 4 . i • estates by the 
 
 tion to the limitation to the right heirs oi statute, which 
 the husband, either as a remainder expectant raiesofihe 
 
 . i pp . n . common law. 
 
 upon, or as a springing use to take enect alter, 
 the estate tail a ; for in either case a recovery 
 by the tenant in tail might have destroyed it ; 
 and if the limitation to the heirs of the body 
 did not take effect, then the limitation to the 
 right heirs of the husband, must of necessity 
 have taken effect upon his death, and there- 
 fore not within the reasons of a perpetuity. 
 The limitation, as it appears to me, to the 
 right heirs of the husband, might, according 
 to the event, have taken effect, either as a re- 
 mainder, or as a springing use ; and during 
 the life of the husband, or the suspense of 
 the contingency, it was uncertain in which 
 way. If there had been at the death of the 
 husband, any person answering the descrip- 
 tion of heir of the bodies of husband and 
 wife, such heir could have taken an estate 
 tail under the springing use to him, with a 
 vested remainder to the right heirs of the 
 husband ; but if there had been no person 
 answering that description at the death of the 
 husband, then the limitation to his right 
 heirs might have been good as a springing 
 use : as a remainder, therefore.^)* take effect 
 
 1 The words would have Mandeville's case, Co. Litt. 
 created an estate tail. See 26. b.
 
 142 Of Uses since the [chap. n. 
 
 Sect.v. after an estate tail, it would have been good : 
 Of limitations and it would have been valid as a springing 
 
 of uses, and crc- . ,11 r 
 
 use to arise upon the decease ot a person in 
 
 ation of legal 
 estates by the 
 statute, which 
 differ from the 
 rules of the 
 commonlaw. 
 
 esse. 
 
 In the case of Adams v. Savage b , where 
 lands were conveyed by lease and release to 
 trustees and their heirs, to the use of A., the 
 releasor, for ninety-nine years, if he should so 
 long live, remainder to the use of the trustees 
 for twenty-five years, remainder to the use of 
 the heirs male of the body of A., it was de- 
 termined, that no use for life resulted to A., 
 and consequently, that the remainder to his 
 heirs male was void, there being no freehold 
 estate previously limited to support it. 
 
 If the above limitations had been in a will, 
 instead of a deed, the limitation " to the heirs 
 " male of the body of A.," would have been 
 good, as an executory devise" ; and there does 
 not appear to be any satisfactory reason, why 
 that limitation, in the case cited, should not 
 have been supported, as a springing use. But 
 it is singular, that the court did not, either in 
 this case, or in the case of Rawley v. Hol- 
 land* 1 , consider the limitation upon the doc- 
 trine of springing uses : they determined, that 
 the limitation was void, as a remainder; but 
 
 b 2Salk.679.LordRaym. 2157. Gore v. Gore, 2 P. 
 854. W. 28. 
 
 c Harris v.Barnes, 4 Burr. d 22 Vin. 189. pi. 11.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 143 
 
 they did not, it should seem, advert to the Sect. v. 
 circumstance, that it might have been good, Of limitations 
 
 of uses, and cre- 
 
 as a springing use 6 . ationofiegai 
 
 estates by the 
 statute, which 
 
 Probably the fact is, that at the time when rules of the e 
 
 ,i rAj o jt»i common law. 
 
 the cases of Adams v. lavage, and Kawley v. 
 Holland, were determined, the limitation, in 
 each of those cases, " to the heirs male of the 
 " body," was considered as too remote, even 
 if it had been an executory devise under a will : 
 in the one case, the limitation being to take 
 effect after a life in being, and a term of 
 twenty-five years ; and in the other, after a 
 life in being, and a term of 200 years : for it 
 does not appear to have been settled, until 
 the case of Gore v. Gore f (1722), that the 
 freehold might become vested under an exe- 
 cutory devise, although such freehold estate 
 were preceded by a term of 200 years, or 
 upwards. The case of Adams v. Savage was 
 determined in 1701, and Rawley v. Holland 
 in 1712. 
 
 (6.) It is a maxim of the common law, of springing or 
 that no estate can be limited upon a fee- after"? Upon a 
 simple; or, in other words, an estate in fee- ltllltatlonin ee ' 
 simple cannot be made to cease as to one, and 
 take effect by way of limitation, upon a con- 
 
 e Sergeant Hill, in a MS. " good as a springing use, 
 
 note to Adams v. Savage, " as it would in a will be a 
 
 Salk. 679. makes a query, " good executory devise." 
 " If this would not be as f 2 P. W. 28.
 
 common law. 
 
 144 Of Uses since the [chap. ii. 
 
 Sect.v. tingent event, in favour of another person. 
 of limitations Thus if a feoffment had been made in fee, 
 
 of uses, and cre- 
 ation of legal with a proviso to make it cease as to the 
 
 estates by the 
 
 statute, which feoffee, and go over to a stranger upon the 
 
 differ from the . ,.,... 
 
 rules of the payment of a certain sum, &c, this limitation 
 was void s . For as a remainder it could not 
 take effect ; a remainder being a remnant of 
 an estate in lands or tenements expectant upon 
 a particular estate 11 : and as a condition it was 
 void, for no person can take advantage of a 
 condition, but the grantor and his heirs 1 . But 
 it is established now beyond controversy, that 
 limitations of the above nature may take ef- 
 fect by way of use. 
 
 The principle seems to have been acknow- 
 ledged at a very early period. In Brooke's 
 Abridgment 1 *, it is admitted, that if a man 
 make a feoffment in fee to the use of W. and 
 his heirs, until A. pays a certain sum to W., 
 and then to the use of A. and his heirs ; the 
 use is first executed inW. by the statute; but 
 when A. pays the money, the use upon such 
 payments shifts from W., and vests in A. But 
 in that case (which was determined before the 
 rule was clearly settled, that all future or 
 
 s See Co. Litt. 18. a ' Doctor and Stud. Dial. 
 
 Seymor's case, 10 Co. 97. 2. c. 20, 21. Perk. s. 831. 
 
 b. 1 Salk. 231. pi. 9. Dyer, Litt. s. 347. 
 33. a. 1 Co. 85. b. 10 Mod. k Bro. Feoff, al. Uses, pi. 
 
 423. Plowd. 29. 30. cites 6 Ed. 6. B. N. C. 
 
 " Co. Litt. 143. a. See pi. 423. 
 Fearne, 8. 4th ed.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 145 
 
 springing uses must be served out of the sei- Sect. v. 
 sin of the grantees), it was said, that, toS'iJjSSel 
 avoid all doubts, A. should enter in the name at |°" cf , le f al 
 
 7 estates by the 
 
 of the feoffees, and in his own name. ^ ate i wlli ^ 
 
 ' differ from the 
 
 rules of the 
 common law. 
 
 So where a fine was levied to the use of A. 
 and his heirs, if R. should not pay a certain 
 sum to A. at an appointed time, and if he 
 should, then to the use of A. for life, remain- 
 der to the use of R. in fee ; upon the payment 
 of the money it was held, that the uses would 
 change according to the limitation 1 . 
 
 It seems, that a shifting or springing use, whether a 
 
 .... if shifting use, af- 
 
 after a previous limitation of the fee, cannot ter a limitation 
 
 . . . ... ..of the fee, can 
 
 be barred by the cestuique use by any kind ot be barred. 
 conveyance. Thus, if land be given to the 
 use of A. and his heirs, until B. pay him 10/., 
 and then to the use of B. ; A. cannot bar this 
 contingent use m . A contingent, or shifting 
 use, in this respect differs from a contingent 
 remainder, which may be destroyed : but it 
 agrees with an executory devise after a pre- 
 vious devise of the fee ; as it was determined 
 in Pells v. Browne". However , if a man 
 
 1 See Spring v. Caesar, 1 m Lloyd v. Carew, Prec. 
 
 Roll. Ab. 415. pi. 12.— For Cha. 72. Pig. Rec. 134. 
 
 other instances of springing Palm. 132. 135. Vide Bro. 
 
 uses after a previous litnita- Feoff, al. Uses, pi. 50. 
 
 tion of the fee, I must refer B. N. C. 137. 
 
 to the cases of Harwell v. n Cro. Jac. 590. 1 Eq. 
 
 Lucas, Moor, 99. and earl Ab. 187. 
 
 of Kent v. Steward, Cro. ° Wood v. Reignold. Cro. 
 
 Car. 358. Eliz. 764. 765. 854. Cases 
 
 VOL. I. L
 
 146 
 
 Of Uses since the 
 
 [chap. II. 
 
 sect. v. covenant to stand seised to the use of himself 
 or limitations j n f ee un i\\ marriage, and then to the use of 
 
 of uses and ere- ' © ' 
 
 ation of legal himself and his intended wife, and the heirs 
 
 estates by the 
 
 statute, which f n j s body, with remainders over: he may 
 
 differ from the J / . 
 
 rules of the before marriage destroy the future or contin- 
 
 coramon law. ° 
 
 gent uses, by making a feoffment in fee, in 
 tail, or for life, upon a good consideration, 
 and without notice : but a lease for years 
 would not destroy it, although it would bind 
 the future use p . 
 
 We may reconcile the last case to the pre- 
 ceding rule in this manner ; if the seisin, out 
 of which the springing or future use is to 
 arise, be destroyed, the future use cannot take 
 effect : therefore if A. covenant to stand 
 seised to the use of such a wife, as he shall 
 hereafter marry ; until the marriage the use 
 results to himself in fee, and it is out of his 
 seisin, that the use to the wife must arise : 
 now if he destroy that seisin before the use 
 comes in esse, the use consequently cannot be 
 served q . But if A. make a feoffment to B. 
 in fee, to the use of C. in fee ; but if D. pay 
 so much money, then to A. in fee ; here if C. 
 (who has the legal estate since the statute) 
 make a feoffment, suffer a recovery, or levy a 
 
 collected in note to pi. 4. 
 22 Vin. 225. and pi. 1. 224. 
 See also Gilb. Uses, 125. 
 
 p See Bould v. Wynston, 
 Cro. Jac. 168. Sed contra 
 Semb. Barton's case, Moor, 
 
 742. as to the lease for 
 years. 
 
 i The case in B. N. C. 
 137. which is contra, is 
 denied to be law. 2 Sid. 98.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 147 
 
 fine, the use to A. is not barred from taking Sect - v. 
 effect : because that shifting use is served out °/ Iimitati ° ns 
 
 ' ° ot uses, andcre- 
 
 of the seisin of B. the feoffee, and not out of atio "°f'e g ai 
 
 estates by the 
 
 the estate of cestuique use. But it appears to s **. ate > which 
 
 * *■ L differ from the 
 
 me, that if in this case B. (the feoffee) should r "iesof the 
 
 . common law. 
 
 join with C. in making a feoffment, the seisin, 
 or scintilla juris, of B. would be completely 
 destroyed, and in that case no future use 
 could arise to A. Indeed, if it is admitted, 
 that there is a possibility of seisin remaining 
 in the feoffee, to serve the contingent uses, it 
 will follow that it may be destroyed by release 
 or feoffment. 
 
 Brent's case" was in effect thus: R. B. 
 made a feoffment to the use of himself and D., 
 his wife, for their lives, with remainder, if 
 R. B. survives D., to the use of such woman 
 as R. B. should afterwards marry, for her 
 jointure ; remainder to the use of J. S. in fee. 
 
 J. S. and the feoffees, with the consent of 
 R. B.j join in a feoffment to other uses ; and 
 then R. B. levies a fine to the same uses, and 
 marries a second wife. 
 
 The question was, whether the contingent 
 use to the second wife was not destroyed by 
 the feoffment of J. S. and the first feoffees ? 
 It appears, that the point was not judicially 
 
 r 17Eliz. 2 Leon. 14. Dyer, 330. pi. 48. 
 L 2
 
 148 Of Uses since the [chap. n. 
 
 Sect. v. determined: but in Dillon v. Freine, Popb. 
 of limitations 7Q Anderson says, " And for Brent's case, I 
 
 of uses, and ere- J ' 
 
 ation of legal « nave a ]wavs taken the better opinion to be, 
 
 estates by the ^ * 
 
 statute, which « that the wife cannot take in the case for 
 
 differ from the 
 
 rules of the « the mean disturbance, notwithstanding the 
 
 common law. 
 
 "judgment, which is entered thereupon, 
 " which was by the assent of the parties :" 
 and in Woodliff v. Drury 5 , which was the 
 case of a feoffment before marriage, to the 
 use of the feoffor and his intended wife after 
 the marriage, and the heirs of their bodies 
 (no use having been limited until the mar- 
 riage) : all the justices held, " that although 
 " the feoffor be seised in fee until the mar- 
 " riage, yet by the marriage the new use shall 
 " arise, if there be no act in the mean time 
 " to destroy the future use, as in Chudley's 
 " case." 
 
 The argument in Perrot's case* appears to 
 me very satisfactory ; " a disturbance, which 
 " will impede the future use, ought to arise 
 " on the part of the feoffees ; as if an alien is 
 " enfeoffed to a use u , upon office founds the 
 " use is destroyed per 11 Regin. Dyer, fol. 
 " 283., in the case of the King v. Jasper; or 
 " if one, who had committed treason or fe- 
 " lony, is enfeoffed to uses, and afterwards is 
 " attainted, the use is destroyed': and that 
 
 ' Cro. Eliz. 439. " Bacon, Uses, 59. 
 
 'Moor, 368. 390. 391. v Ibid. 58. 59. 
 
 pi. 506. 36, 37 Eliz.
 
 chap. II.] Stat. 27 H. 8. c. 10. 149 
 
 " was the case of Francis Throckmorton, who Sect - v> 
 " was attainted for treason in the 26th Eli?;.: ^JJJj^ 
 " he was conuzee in a fine to the use of Mrs. ati °? of , le j> al 
 
 estates by the 
 
 " Scudamore, his sister, for her jointure, and ffc'jjjjjjjj 
 " that was after the treason committed, but rulesoft | ie 
 
 common law. 
 
 " before the attainder; and after his at- 
 " tainder, his sister sued to the queen, who 
 " granted to her the land by the advice of 
 " Monsieur Ploiv den, et divers autres de grand 
 " learning in le ley? 
 
 " So if the feoffees, before the future use 
 " shall arise, disable themselves from being 
 " seised of the land by their feoffment ; as in 
 " Chudley's case." 
 
 " And so 17 Eliz. Dyer, 340. (Brent's 
 " case), where the use was limited to such 
 " woman as he shouid marry, and before mar- 
 " riage he requires his feoffees to make another 
 "feoffment over: in these cases the future 
 " use is prevented (pvent) by the opinion of 
 "the greater part of the judges who argued 
 " the case of Dillon v. Friene." 
 
 " And so it seems, if the feoffees had been 
 " barred of seisin by collateral warranty, or 
 " the like." 
 
 (7.) It is a maxim of the common law, or shifting uses 
 
 . upon, or after, a 
 
 that every remainder must be limited, so as previous limita- 
 tion in tail or 
 to await the determination of the particular for life. 
 
 l3
 
 150 Of Uses since the [chap. ii. 
 
 or limitations estate, before it can take effect in possession*. 
 JiroMe d g a[ e " Therefore if an estate be limited to a person 
 StS wWch m ta ^3 or f° r ^^ e ' w * tn a condition for making 
 JSes'onhe* 6 ** cease upon an event, which may happen be- 
 common law. f ore \± s re gular determination, this condition 
 is void: for it cannot operate as a remainder 
 for the reason just stated; and as a condition 
 to vest the subsequent limitation by the entry 
 of the grantor, it can have no effect; for sup- 
 posing the grantor to enter for a condition 
 broken, such entry would avoid the first 
 livery, and of course destroy the remainder, 
 which was created by that livery. But it is 
 now clear, that if a seisin in fee be limited to 
 J. S. to the use of A. in tail, or for life, pro- 
 vided that if B. return from Rome, then the 
 lands shall remain to the use of C. in fee ; 
 the limitation to C. will vest in abridgment 
 of the estate limited to A x . 
 
 of the distinc- It appears to me, however, that limita- 
 shminguse" tions of the nature just mentioned, which 
 nmitatiras! 011 operate, so as to determine the preceding par- 
 ticular estate, before its regular expiration, 
 can be effected without the aid of springing 
 or shifting uses, and that by a species of limit- 
 ation, which is not properly a remainder, nor 
 condition, but which is distinguished by the 
 name of a conditional limitation 7 : an expres- 
 
 w Plowd. 24. Fearne, 9. x See 2 Leon. 16. 
 300. 394. Cogan v. Cogan, y See Reeves, 4 vol. 509, 
 
 Cro. Eliz. 360. 510. Plowd. 27. 32.34.414.
 
 chap. II.] Stat. 27 H. 8. c. 10. 151 
 
 sion and idea, as Mr. Douglas has in my opi- Sect - v - 
 nion properly said 2 , originally adopted to rfJjJjJJS. 
 evade the necessity of the entry by the heir jjj e ° f b le ^j l e 
 for the purpose of taking advantage of the ^"J^'jJ 
 defeazance of a prior estate. In order to dis- ™iesofthe 
 
 *■ # common law. 
 
 tinguish between springing uses, and condi- 
 tional limitations, I must observe, that where 
 the grantor parts with the whole fee, and 
 limits the use upon the seisin so transferred 
 to B. in tail, or for life, until C.'s return from 
 Rome, and then to the use of C, &c. : this 
 limitation to C. is termed a springing or shift- 
 ing use. But where the grantor only parts 
 in the first intance with an estate less than 
 the fee, the estate so created may be defeated 
 by a conditional limitation ; and upon the de- 
 termination of it, the next subsequent estate 
 immediately become vested without entry or 
 claim 3 . But in these cases it is necessary to 
 use words of limitation ; which words b are, 
 quam din, dummodo, dum, quousque, durante; 
 whereas, words of condition are, sub conditione, 
 ita quod, si contingat, proviso. If words of 
 condition are inserted, then the particular 
 estate cannot cease without entry by the 
 grantor or his heirs. 
 
 Thus if there be tenant for life, with re- 
 mainder in fee, upon condition that tenant for 
 
 z Dougl. Rep. 727. note b Mary Portington's case, 
 1. See Shep. Touch. 150. 10 Co. 41. b. 
 a Co. Litt. 214. b. 
 
 l4
 
 152 
 
 Of Uses since the [chap, ii 
 
 Sect. V. 
 
 Of limitations 
 of uses, and ere 
 alion of legal 
 estates by the 
 statute, which 
 differ from the 
 rules of the 
 common law. 
 
 life (being a feme sole) should continue un- 
 married, and she afterwards marry ; though 
 the heir of the grantor may enter, yet by 
 such entry he defeats the remainder . But 
 if an estate be granted to A. so long as she 
 shall continue unmarried 1 , or to A. for life, 
 si tarn diu in pur a vidnitate viveref, and the 
 remainder be granted to B. ; upon the mar- 
 riage of A. her estate determines by the nature 
 of its limitation, and the remainder to B. im- 
 mediately takes effect f . So if a gift be made 
 in tail to A. upon condition, that if C. return 
 from Rome, it shall thenceforth immediately 
 remain to B. ; in this case the limitation over 
 can never take effect as a remainder ; because 
 the estate tail cannot cease without an entry 
 by the grantor or his heirs, which entry 
 would defeat the remainder 55 . But if a feoff- 
 ment be made to A. and the heirs of his body 
 until C.'s return from Rome, and after C.'s 
 return, to B. in fee ; here, upon C.'s return, 
 the limitation to B. will vest h . 
 
 But when limitations operate by way of 
 shifting or secondary uses, they take effect, 
 
 W. Jones, 58. See also 
 Plowd. 29. 
 
 ll W. Jones, 58. 
 
 c Co. Litt. 214. b. 
 
 f See 2 Black. Cora. 155. 
 W. Jones, 58. in Foy v. 
 Hynde, 5 Vin. 63. pi. 13. 
 and note. Mr. Fearne con- 
 siders the limitation over as 
 a remainder, and not as a 
 
 conditional limitation. 1 
 Vol. 393. 4 Ed. 
 
 s Co. Litt. 214. b. W. 
 Jones, 58. Plowd, 413. 
 
 h W. Jones, 58. Sed 
 vide Shep. T. 121. contra. 
 But the authorities there 
 cited do not support his 
 position.
 
 hap. ii.] Slat. 27 H. 8. c. 10. 153 
 
 whether the words, which cause their taking Sect. v. 
 effect, be words of limitation or condition 1 . SfJSJlSS.. 
 Thus, where a fine was levied to the use of B. JEijfii 
 in fee, upon condition that he should pay A. ^"r^m tie 
 (who was the conuzor) 41. per annum, and rulesoft '" c 
 
 \ ' l common law. 
 
 in default of payment to the use of A. for 
 life ; it was said, that as this was limited to 
 the conuzor, it was a condition; but if it had 
 been limited to a stranger, it would have 
 been a good springing use upon the non-per" 
 formance of the condition 1 *. To prove this 
 the case of Bracebridge was cited 1 , which 
 so far as relates to the present point was, that 
 A., seised of the reversion of some lands, 
 granted them to B. and C. and their heirs, 
 upon condition to pay a certain sum on a par- 
 ticular day ; and in default thereof to stand 
 seised to certain uses. Default was made 
 in payment, and it was held, that by virtue of 
 the satute 27 Hen. 8. c. 10. the use was di- 
 vested out of the grantees. 
 
 Where an estate is limited to the use of A. 
 in fee simple, subject to a springing use, no 
 act of A. can destroy it, as I have before ob- ^Lai? 
 served; but where an estate tail is limited, inguscs * 
 and a secondary or shifting use is limited 
 upon it, the tenant in tail may by recovery 
 
 1 See 2 Leon. 16. Lucas; 1 Leon. 2fi4. pi. 
 
 k Smith v. Warren, Cro. 355. S. C. 2 Leon. 221. 
 
 Eliz. G88. pi. 281. And 113. S. C. 22 
 
 1 Moor, 99. pi. 243. S. C. Vin. 251. H. a. pi. 3. and 
 
 by the name of Harwell v. note.
 
 154 Of Uses since the [chap. n. 
 
 Sect. V. 
 
 of limitations bar the limitation over m . Therefore, it is said, 
 a[ion e «ne d g ar " If tenant in tail be with a limitation so long 
 " as such a tree shall stand, a common reco- 
 " very will bar that limitation"." 
 
 estates by the 
 statute, which 
 differ from the 
 rules of the 
 common law. 
 
 of shifting or (3 \ J nave noticed such shifting or 
 
 secondary uses v ' c ' 
 
 arising upon springing uses as take effect, or arise, upon 
 
 the execution r o o > > I 
 
 of powers. an event provided for by the deed, in which 
 the original limitations, intended to be de- 
 feated thereby, are created. But there is a 
 species of shifting or future use, which arises 
 from the act of some agent or person nomi- 
 nated in the deed ; and this is called a use, 
 arising from the execution of a power. Every 
 power of this kind is a power of revocation, 
 and new appointment ; for the new uses and 
 estates created under the appointment, must 
 necessarily (as to the extent of such appoint- 
 ment) revoke, defeat, or abridge the uses, 
 which existed, and were executed, previously 
 to the new limitation . Sometimes an ex- 
 press power of revocation is limited prior to 
 the power of appointing new uses. But this 
 is never necessary. 
 
 ^ototmen? ap " Powers of appointment are adopted under 
 various circumstances, and they may either 
 by the express provision of the deed precede, 
 or be reserved after, the limitation of uses in- 
 
 m Page v. Hayward, 2 n In the case of Benson 
 
 Salk. 570. Vide 1 Lev. 35. v. Hodson, 1 Mod. 111. 
 
 1 Sid. 102. See Fearne ° See2Vern.511. Moor, 
 
 15, 16. 611.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 155 
 
 tended to be executed subject to such powers. Sect - v. 
 Thus an estate may be conveyed to J. S. and SfJJJJjJji. 
 his heirs, to such uses as A. shall appoint, and ^ es of b le f h a ,l 
 in default of appointment, and subject there- JJ"*;^^ 
 to, to the use of A. and his heirs p . But it is ruIes of the 
 
 common law. 
 
 immaterial 9 , whether the power actually pre- 
 cedes, or comes after, the limitation of the 
 us to A. and his heirs. In a case r where an 
 estate was limited to the use of H. R. and his 
 heirs, and to such uses as he should appoint 
 by will, lord Hardwicke thought, that the 
 word and must be understood disjunctively 
 for the word or, in order to comply with the 
 intention of the parties. But if a feoffment, 
 or lease and release, be made to J. S. and his 
 heirs, to the use of J. S. and his heirs, with a 
 power of revocation reserved thereupon, such 
 power is void ; because J. S. is in by the com- 
 mon law 3 . 
 
 In conveyances to purchasers, the estate is Povver rese ™ ed 
 
 * * upon a legal 
 
 sometimes conveyed to the purchaser and his estate at the 
 
 1 common law. 
 
 heirs, to such uses as he shall appoint by deed 
 or will, and in default of, and subject to, such 
 appointment, to the use of the purchaser and 
 his heirs. It is conceived, that a power of 
 appointment so reserved cannot be exercised ; 
 for, subject to the power, the purchaser is in 
 
 p An appointment under q See 4 Term Rep. 181. 
 
 a power of this kind would r Dobbins v. Bowman, 3 
 
 overreach the claim of the Atk. 408. 
 
 wife of the appointor to 9 Co. Litt. 237. a. Shep. 
 
 dower. See Ray v. Pung, Touch. 525. 
 5 Barn, and Alders. 561.
 
 Of limitations 
 of uses, and ere 
 ation of legal 
 estates by the 
 statute, which 
 differ from the 
 rules of the 
 common law. 
 
 150 Of Uses since the [chap. ii. 
 
 Sect. v. ^y {} ie common law ; and it does not appear 
 to me, that the reservation of the power be- 
 fore the limitation to the purchaser, can make 
 any difference between this and the case 
 stated by sir Edward Coke. A modern 
 writer 3 , to whom the profession is in- 
 debted for several valuable works, seems to 
 think, that in this case, in order to preserve 
 the power, and to effectuate the intention of 
 the parties, the releasee would be deemed to 
 be in under the statute of uses. It would be 
 difficult, however, to support that construc- 
 tion either upon principle or authority. 
 
 That upon a conveyance to A. and his 
 heirs, to the use of him and his heirs, A. 
 would take in the course of possession by the 
 common law, and not by the statute of uses, 
 is a point, I apprehend, settled beyond con- 
 troversy. In Gwam and Ward v. Roe*, a re- 
 version was conveyed by fine to the conuzee 
 and his heirs, to the use of the conuzee and 
 his heirs ; and the conuzee brings debt against 
 the lessee : and it was objected, that no at- 
 tornment of the lessee was alledged, as it 
 ought to have been, " because the plaintiff 
 " came in by the common law, and not by the 
 " statute of uses — quodfuit concessum." 
 
 In the case of lord Altham v. the earl of 
 Anglesey (Gilb. Rep. in Ch. 17.) it is ex- 
 
 8 Sugd. on Pow. 117. l Salk. 90, ante 91, 92.
 
 chap, ii.] Stat. 27 //. 8. c. 10. 157 
 
 pressly stated, that if a fine be levied to a Sect - v - 
 man and his heirs, to the use of him and his SnJSSJuSi- 
 heirs, in this case he shall take by the com- ^toby the 
 mon law, and not by way of use : and the ^* ute ; whi f, h 
 
 ' j j diner from the 
 
 same doctrine is stated in Lone; v. Bucker- rules of the 
 
 ° common law. 
 
 idge, 1 Strange, 111. and by Bacon 63. 
 
 The seisin transferred to the grantee be- 
 ing clothed with the limitation of the use, 
 there was no ulterior equitable interest known 
 previously to the statute of uses : for the con- 
 veyance to the grantee gave the possession to 
 him at the common law, and the declaration 
 of the use to him invested him with the most 
 extensive beneficial interest then existing. 
 Any ulterior limitation or declaration of a 
 use, or trust, is an equitable interest, arisen 
 from the construction upon the statute of 
 uses. It is not the use, which existed pre- 
 viously to that statute. 
 
 The question therefore is,whether a power 
 of revocation and new appointment can ope- 
 rate upon a legal estate perfected at the com- 
 mon law? The authority of sir Edward Coke 
 is decisive" : " In case of a feoffment or other 
 " conveyance, whereby the feoffee or grantee 
 " is in by the common law, such a proviso 
 " were merely repugnant and void." The 
 author of the Touchstone', by way of illus- 
 
 u Co. Litt. 237. a. v 525.
 
 common law. 
 
 158 Of Uses mice the [chap. ii. 
 
 sect. v. tration of the case stated by Coke, says, " As 
 of limitations " where A. doth enfeoff B. and his heirs, to 
 
 of uses, and cre- 
 ation of legal » the use of B. and his heirs :" but the writer, 
 
 estates by the 
 
 statute, which to whom I have alluded, seems to think, that 
 
 differ from the . . 
 
 rules of the Coke had no such case in contemplation; 
 but alluded to a feoffment at common law, 
 and not by way of use. If there be any 
 meaning at all in the observation, he could 
 have contemplated no other case. If a feoff- 
 ment be made to A. and his heirs, it is neces- 
 sary, in order that he may obtain the legal 
 estate at the common law, that there should 
 be either a declaration of the use to him, or 
 a consideration paid by him to prevent a re- 
 sulting use to the grantor; so that although 
 a grantee may still have a legal estate at the 
 common law, the rule is grounded upon the 
 practice and construction of uses ; and it is 
 to be presumed, that sir Edward Coke, who, 
 in the case stated, was explaining the opera- 
 tion of the statute of uses, understood the 
 principles, upon which a legal estate was 
 created at the common law. 
 
 It is however contended, that the grantee 
 having the use partially limited to him, may, 
 in some cases, take the legal estate by the 
 statute, and not at the common law ; that this 
 construction is adopted to give effect to the 
 intention of the parties ; and that the prin- 
 ciple of construction may be extended to the 
 case under consideration. If indeed intention
 
 chap, ii.] Stat. 27 H. 8. c. 10. 159 
 
 is to be allowed at all upon the construction Sfct - v - 
 of a deed, it must be confined to those cases °/ limitations 
 
 7 ot uses, and cre- 
 
 where the grantee to uses takes only a joint ationof L le 8 al 
 
 ° jo estates by the 
 
 or partial estate under the limitation, the re- statute, winch 
 
 *■ differ from the 
 
 maining use being limited to a third person ; rules of the 
 
 ... common law. 
 
 for in these cases, the use being limited to a 
 certain extent to a third person, the words of 
 the statute are satisfied ; and courts of justice 
 may possibly, in such cases, think it proper to 
 mould the whole limitation under the statute, 
 so as to meet the intention of the parties. 
 But if a conveyance be made to A. and his 
 heirs, to the use of him and his heirs, it can 
 never be a question of intention, whether A. 
 takes a legal estate by the statute, or at com- 
 mon law. He takes it at the common law by 
 a positive rule of law, not raised from inten- 
 tion, but operating sometimes even against it, 
 as in the case of a conveyance unto, and to the 
 use of, A. and his heirs, to the use of B. and 
 his heirs, in trust for C. and his heirs ; in which 
 the intention of the grantor would be mani- 
 fest, that B. should take the legal estate, for 
 otherwise he could not be a trustee for C. ; 
 yet clearly the legal estate would vest in A.; 
 and it would, no doubt, be the same, notwith- 
 standing the grantor had by a subsequent 
 declaration expressed his intention, that B. 
 should take the legal estate. In truth, this 
 and the case stated by Sir Edward Coke, 
 appear to me to be grounded upon the same 
 established rule; that a use cannot be limited
 
 100 Of Uses since the [chap. n. 
 
 sect.v. t ar i se ou t of the estate of a cestuique use, 
 
 Of limitations 
 of uses, and ere 
 
 common law. 
 
 taking the legal estate at the common law ; 
 
 estates by§e ^ iat a use cannot be limited upon a use, 
 statute which although the first use, beinc: limited to the 
 
 dirter from the ° ° 
 
 rules of the grantee, is not a use within the statute™: and 
 the two cases cannot in principle be distin- 
 guished. In the one case, the estate is con- 
 veyed to, and to the use of, A. and his heirs, 
 to the use of B. and his heirs, and in the other 
 to and to the use of A. and his heirs, subject 
 to a power of appointment reserved to B. ; 
 and if in the case first mentioned, the use to 
 B. cannot be executed in consequence of the 
 seisin of A., being clothed with the use limited 
 to him, upon what principle can the appointee 
 of B. in the second, take a legal estate? Upon 
 what rational distinction can the appointee 
 acquire a legal estate under the limitation, 
 effected by the exercise of the power, when, if 
 the same limitation had been included in the 
 deed itself, he would merely have taken an 
 equitable interest? 
 
 I anticipate an observation upon this 
 mode of reasoning. It may be said, that if a 
 conveyance be made unto (not to the use of) 
 A. and his heirs, to the use of B. and his heirs, 
 to the use of C. and his heirs, although the 
 use to C. being limited by the same convey- 
 ance, cannot be executed by the statute, be- 
 
 w See this point before stated, 91,92.
 
 chap, ii.] Stat. 27 H.S.c. 10. 101 
 
 cause it is limited to arise out of the estate of Sect - v - 
 cestuique use, yet by the exercise of a power rfuie^'andcre- 
 of appointment reserved by the conveyance, ^tobjSa 
 the appointee may take a legal estate. The JgJ^|*£ 
 rule of law would be correctly stated: but ruIesoft l ie 
 
 J * common law. 
 
 the application of it to the case, which I have 
 mentioned, would be erroneous ; for by the 
 exercise of the power, the use would arise out 
 of the seisin of A., not previously clothed with 
 a use. The analogy would be preserved by 
 stating the case thus : If in a conveyance to 
 A. and his heirs, to the use of B. and his 
 heirs, a power of appointment is reserved 
 either to A. or B., but so worded, that the 
 use to take effect under the exercise of the 
 power is to arise out of the legal estate of B., 
 and not out of the seisin of A., the appointee 
 under the power would not take a legal 
 estate, because the use limited to him would 
 arise out of the estate of B. the cestuique use. 
 What difference can be discovered between 
 the limitation of a use under a power to arise 
 from the estate of cestuique use having the 
 legal estate by the statute, and from the 
 estate of cestuique use having the legal estate 
 at the common law ? 
 
 In most modern marriage-settlements, 
 powers of selling and exchanging are limited 
 to the releasees ; and powers of leasing 2 , 
 
 x See the form, Appendix III. 
 VOL. 1. M
 
 162 Of Uses since the [chap. ii. 
 
 sect.v. jointuring 7 , and limiting terms for raising 
 of limitations portions for younger children*, are reserved 
 
 of uses, and ere- , 
 
 ation of legal to the tenants lor lives. All these powers, 
 
 estates by tli6 
 
 statute, which by whatever words they are created, take 
 luieToHhe ' e effect by way of limitation of the use out of 
 
 common law. , . . , .. /? i_i r cr i 
 
 the original seisin ot the feonees, or releasees. 
 
 Powers of leasing were frequent soon after 
 the statute of uses. In a case, 42 Eliz. a , a 
 power of leasing is mentioned as a common 
 thing ; and it is there said, that the words 
 usual in such powers were to make leases or 
 demise for twenty-one years, or three lives ; 
 which words should be understood to limit 
 the use ; and that if a lease should be made 
 in the words of a demise, it should enure as a 
 limitation of the use for the term. It is ob- 
 servable, that the most early precedents of 
 leasing powers enable the party to lease or 
 demise^; but the lease being nothing more 
 than a limitation of the use, the words au- 
 thorizing it should be, limit and appoint by 
 way of lease or demise ; and yet the old form 
 of leasing powers is in this respect still pre- 
 served in the most approved modern prece- 
 dents. I find however, among Bridgeman's 
 precedents, several powers of this kind, in 
 
 » Appendix IV. Cro. Eliz. 5. 1 Leon. 35. 
 
 z Appendix V. b See West's Symb. s. 
 
 » Moor, 611. SeeLeaper 275. 1 Leon. 35. 
 v. Wroth, cited 6 Co. 33. a.
 
 CHAP. II.] Stat. 27 H. 3. ft 10. 
 
 163 
 
 which the words limit and appoint are ex- SrCT - v - 
 pressly used*. , SSftfe 
 
 ation of legal 
 estates by the 
 
 Sir Edward Coke states d , that powers of s / a i ut ^ **j* 
 
 1 differ from the 
 
 revocation in voluntary settlements were fre- miesofthe 
 
 " common law. 
 
 quent in his time. Thus if a man seised in 
 fee, for the advancement of his blood, cove- 
 nanted to stand seised to the use of himself 
 for life, with remainder over, he would an- 
 nex a power of revoking those uses. These 
 powers, however, when reserved to the gran- 
 tors or owners of estates, were, like the volun- 
 tary conveyances, in which they were reserv- 
 ed, made fraudulent, as against purchasers, 
 by the 27th Eliz. c. 4 e . General powers 
 
 c See 2Bridg. Conv. 12. 
 17. 98. &c. So also as to 
 powers of jointuring, ibid. 
 14. 17. &c. 
 
 d Co. Litt. 237. a. 
 
 e " And be it further en- 
 " acted by the authority 
 *• aforesaid, that if any per- 
 " son or persons have here- 
 " tofore, sithence the be- 
 " ginning of the queen's 
 " majesty's reign, that now 
 "is, made, or hereafter 
 " shall make, any convey- 
 " ance, gift, grant, demise, 
 '* charge, limitation of use 
 " or uses, or assurance of, 
 "in, or out of any lands, 
 '* tenements, or heredita- 
 " ments, with any clause, 
 " provision, article, or con- 
 *' dition of revocation, de- 
 * termination, or alteration 
 " at his or their will or 
 " pleasure of such convey- 
 
 M 
 
 '* ance, assurance, grants, 
 " limitations of uses or es- 
 " tates of, in, or out of the 
 " said lands, tenements, or 
 " hereditaments, or of, in, 
 " or out of any part or par- 
 " eel of them contained or 
 " mentioned in any writing, 
 " deed, or iudenture of 
 " such assurance, convey- 
 ance, grant, or gift; (2.) 
 " and after such convey- 
 " ance, grant, gift, demise, 
 " charge, limitation of uses, 
 " or assurance, so made or 
 " had, shall or do bargain, 
 " sell, demise, grant, con- 
 '.' vey, or charge the same 
 " lands, tenements, or here- 
 " ditameuts, or any part or 
 " parcel thereof, to any per- 
 " son or persons, bodies 
 " politic and corporate, for 
 " money or other good con- 
 " sideration paid or given 
 
 2
 
 dilVer from the 
 rules of the 
 common law. 
 
 164 Of Uses since the [chap. ir. 
 
 Sect. v. f revocation have been long since dis- 
 of limitations use( ] \ n settlements, because, even when re- 
 
 of uses, and 
 
 creation of legal s t ra j ne( ] by the consent of trustees, it has 
 
 estates by the J 
 
 statute, which been doubted, whether they are not within 
 the provision of that statute*. A power was 
 then introduced into settlements, whereby 
 the prior uses were revoked, in case the 
 grantor should Ji?st settle other lands of equal 
 value to the same uses. This power, as Mr. 
 Booth observes 5 , was found inconvenient, be- 
 cause few people are in circumstances to buy 
 new estates, till they have sold their old ones. 
 The modern power of selling and exchanging, 
 which is reserved to the releasees, answers 
 every purpose 11 . 
 
 Priority of 
 powers. 
 
 So early as the time of Bridgeman's prac- 
 tice, a doubt seems to have prevailed as to 
 
 " (the first conveyance, as- 
 " surance, gift, grant, de- 
 " mise, charge, or liuiita- 
 " tion, not hy him or them 
 " revoked, made void, or 
 (i altered according to the 
 " power and authority re- 
 " served or expressed unto 
 " him or them in and by 
 " the said secret convey- 
 " ance, assurance, gift, or 
 " grant) ; (3.) that then the 
 " said former conveyance, 
 " assurance, gift, demise, 
 " and grant, as touching the 
 " said lands, tenements, and 
 " hereditaments, so after 
 " bargained, sold, convey- 
 " ed, demised, or charged a- 
 " gainst the said bargainees, 
 " vendees, lessees, grantees, 
 
 " and every of them, their 
 " heirs, successors, execu- 
 " tors, administrators, and 
 " assigns, and against all 
 " and every person and per- 
 " sons which have, shall, 
 " or may lawfully claim 
 " any thing, by, from, or 
 " under them, or any of 
 " them, shall be deemed, 
 " taken, and adjudged to be 
 " void, frustrate, and of 
 " none effect by virtue and 
 " force of this present act." 
 See Shep. Touch. 64. 
 
 f See2Bac. Ab. 607. and 
 Buller v. Waterhouse, T. 
 Jones, 94. 3 Co. 82. b. 
 
 e See opinion at the end 
 of Hill, Shep. Touch. 
 
 h See Appendix VI.
 
 chap, ii.] Slat. 27 //. 8. c. 10. 165 
 
 the priority and effect of powers of the above sect. v. 
 kind with reference to each other, when con- 0f limitations 
 
 of uses, and cre- 
 
 tained in the same settlement ; and he there- ation of legal 
 
 estates by the 
 
 fore introduced a clause i in settlements, de- statute, which 
 
 . . differ from the 
 
 claring, "that every of the said jointures, rules of the 
 
 . . i ii common law. 
 
 u leases, grants, limitations, and estates, shall 
 " take effect and stand good, according as the 
 " said jointures, leases, grants, limitations, 
 " and estates shall in priority of time be 
 " made, one before the other, by force of any 
 " of the powers or provisoes aforesaid." The 
 qualification, however, so far as I have been 
 able to ascertain, appears to have been subse- 
 quently omitted in most approved forms ; 
 thereby leaving the effect of the powers to the 
 construction of law: but of late years, it has 
 not been unusual to insert a proviso, declar- 
 ing, 1st, that the power of leasing shall take 
 precedence of the power of selling and ex- 
 changing, unless executed subsequently to it, 
 in point of time; 2dly, that the power of sell- 
 ing and exchanging shall overreach every 
 other power, although subsequently exercised 
 in point of time ; and 3dly, that in all other 
 cases, the powers shall take effect according 
 to the exercise of them in priority of time. 
 
 Considering the nature and objects of 
 powers of leasing, jointuring, charging for 
 younger children's portions, and selling and 
 
 1 1 Bridg. Conv. 219. See 2 Bridg. Conv. 18. 102. 
 M 3
 
 160 Of Uses since the [chap. ii. 
 
 Sect. v. exchanging, I cannot satisfactorily discover 
 Of limitations the necessity or propriety of any explanatory 
 
 of uses, and ere- . . . 
 
 ation of legal declaration as to their priority; and it is to 
 
 cstntcs dv tliG 
 
 statute, which be feared, that these clauses have tended to 
 
 differ from the , , . , , 
 
 rules of the create doubts, where none ought to nave 
 
 common law. . , . 
 
 existed, and even to raise an erroneous opi- 
 nion as to the effect of appointments made 
 under the powers ; for certainly it cannot be 
 considered as an invariable rule, that, in the 
 absence of an express declaration, theuses to 
 arise under the execution of the powers will 
 take effect according to the priority of exe- 
 cution. 
 
 The powers of jointuring and charging for 
 younger children's portions are introduced 
 with a view to benefit the immediate objects 
 of the settlement by making a provision for 
 those claiming under them as wives, or chil- 
 dren. By the exercise of the power of leas- 
 ing, or of selling and exchanging, the use is 
 limited to a purchaser, who is not an imme- 
 diate object of the settlement. The uses 
 limited under the exercise of the former 
 powers must be considered as limitations ori- 
 ginally contained in the settlement for the 
 benefit of the objects of it; but the estates 
 created by the latter must necessarily, as to 
 the extent of such estates, overreach the 
 limitations of, and virtually supersede, the 
 settlement itself.
 
 chap. II.] Stat. 27 //. 8. c. 10. 167 
 
 The avowed object of a power of selling- Sect. v. 
 is to enable the donee of it to convey to a of limitations 
 
 . , . of uses, and ere- 
 
 purchaser a title complete against the irarae- ationof legal 
 
 /•i i -11 estates by the 
 
 diate objects or the settlement, and those statute, which 
 
 , . . , jt ..! . differ from the 
 
 claiming under them either as volunteers, or 
 
 '& 
 
 rules of the 
 
 . -i , • /. • common law. 
 
 upon the consideration or marriage. 
 
 If a sale or exchange, made under the exe- 
 cution of a power, revokes a jointure or pro- 
 vision for younger children, made by the set- 
 tlement itself, it must, for the same reason, 
 overreach a jointure or provision, created by 
 the exercise of a power contained in such set- 
 tlement. There is no rational distinction be- 
 tween the cases. In each, the jointure or 
 charge will be secured upon the estate to be 
 purchased or acquired in lieu of the estate 
 sold or exchanged. Then with reference to 
 the powers in each of the two classes above 
 mentioned : first, when powers are reserved to 
 a tenant for life, of leasing, selling, and ex- 
 changing, and of charging, not as a provision 
 for younger children, but for raising a sum of 
 money for his own use, the use or estate ap- 
 pointed by either of these powers, would vest 
 in the appointee in possession ; and no subse- 
 quent act of the tenant for life could defeat 
 his own previous appointment in favour of a 
 purchaser. If the subsequent, could defeat 
 the previous, appointment, the appointee 
 under the previous appointment would not 
 take an estate in possession, according to the 
 m 4
 
 estates by the 
 statute, which 
 differ from the 
 rules of the 
 
 J 68 Of Uses since the [chap. n,. 
 
 Sect. v. express purport of the appointment. Se- 
 of limitations condly, if powers of jointuring and charging 
 jSr5f t ji3 8 "for younger children's portions, are reserved 
 to a tenant for life, the priority of the execu- 
 tion of the uses under those powers, should 
 common law. ^ e determined by the usage in limiting those 
 estates by the settlement itself, by which the 
 presumed objects of the parties may be in- 
 ferred ; and therefore a jointure under a 
 power, should precede a charge made by the 
 same tenant for life for younger children's 
 portions, notwithstanding the latter may be 
 executed previously in point of time ; and al- 
 though the jointure be made upon a second, 
 and the charge created upon a first marriage. 
 
 Admitting the propriety of expressly de- 
 claring the intention of the parties, both of 
 the qualifications, which I have above noticed, 
 are imperfect and erroneous. The following 
 plan seems less objectionable : in the power 
 of sale, the releasees, or the tenant for life, 
 may be empowered to revoke the uses limited 
 by the settlement, and which may be limited 
 by the exercise of any of the powers therein 
 contained, except any lease made under the 
 power of leasing, and subject and without 
 prejudice to any sale or mortgage, which 
 shall then have been actually made in conse- 
 quence of the exercise of any of the powers; 
 
 k See Goodriglit v. Cator, Doug. 477=
 
 chap, ii.] Stat. 27 H. 8. c. 10. 169 
 
 and in the power authorizing the tenant for sect. v. 
 life to charge for younger children's portions, of limitations 
 
 ii ii of uses, and cre- 
 
 it should be* expressly stated, that the charge ation of legal 
 
 liii i • , A estates by the 
 
 made under the power should be subject to statute, which 
 the jointure limited by virtue of thepower of ru ie7of°tnV ie 
 
 • • , i . ii j a common law. 
 
 jointuring reserved to the same tenant. 
 
 With respect to the different kinds of Different kinds 
 
 i j.i r j i. of powers. 
 
 powers, and the means ot destroying or sus- 
 pending them, the following observations 
 occur. 
 
 Powers are either appendant, or in gross, 
 or altogether collateral : appendant, when 
 the exercise of them is in the first instance to 
 interfere with, and, to a certain extent, to 
 supersede the estate of the donee of such 
 power; in gross, when they do not commence 
 until the determination of the estate of the 
 donee ; and collateral, when the donee has 
 no estate at all in the property, which is the 
 subject of the power. 
 
 A power reserved to a tenant for life, to 
 make leases in possession, is appendant; for, 
 by the exercise of it, the term created by it 
 necessarily precedes the estate of the tenant 
 for life, to whom it is reserved. A power to 
 a tenant for life to jointure, is a power in 
 gross; for the jointure created by it must 
 necessarily take effect after the death of the 
 particular tenant.
 
 170 Of V ses since the [chap. n. 
 
 Sect. v. Where an estate is limited to the use of A. 
 
 of limitations for life, with remainders over to other persons, 
 
 ofuses.andcre- _ 
 
 ationof kgai and with a power of revocation and new ap- 
 statute, which pointment reserved to A., this power is both 
 rules of the appendant and collateral. It is appendant as 
 to the estate for life of A., and collateral as 
 to the estates in remainder. So, if the use 
 had been limited to A. for life, with remain- 
 der to B. in tail, with remainder to A. in fee, 
 with a power of revocation and new appoint- 
 ment reserved to A., the power would be ap- 
 pendant as to the estate for life of A. and his 
 remainder in fee, but collateral to the estate 
 tail of B. 
 
 A power wholly collateral is reserved to a 
 person having no legal estate in the property 
 settled. As where an estate is limited in 
 strict settlement, and a power is reserved to 
 a stranger to revoke the existing uses, and 
 limit new ones. 
 
 The division of powers into three classes 
 above mentioned is adopted in practice, and 
 is sufficient for all purposes. But the dis- 
 tinctions are not critically accurate; for all 
 powers are in truth in some degree col- 
 lateral; and the distinction has been raised 
 rather to denote the person exercising the 
 power, than the estate made subject to it, 
 and to arise under its execution. Thus a 
 power reserved to a tenant for life to make
 
 chap, ii.] Stat. 27 H. 8. c. 10. 171 
 
 leases in possession, although appendant to his Sect v 
 own life estate, is collateral to the estate of the of limitations 
 person next in remainder, so far as it arises l^onl^r 
 out of such remainder. The terms therefore jg^Sfi 
 " appendant," and " in gross," arise from, or ^£° tn V he 
 in consequence of, the estate of the person common law. 
 exercising the power; and the term " collate- 
 ral," in respect of the estate acted upon by 
 the power. 
 
 In practice, the cases of greatest interest Destruction of 
 arise upon the destruction of these powers ; po " 
 and it is necessary to attend to the above ob- 
 servations, in order to understand thegrounds 
 upon which powers may be destroyed, or 
 rendered impossible to be exercised. 
 
 With respect to powers, so far as they are 
 appendant, it may be considered as a prin- 
 ciple, that the donee of a power shall not 
 be allowed, by the exercise of such power, to 
 defeat any charge, estate, or incumbrance, 
 which he himself had previously made 
 or created ; and therefore, if a tenant for 
 life, having a power of leasing, previously 
 conveys his legal estate, the power of leasing, 
 to the extent of such conveyance, will be de- 
 feated. So in the case mentioned of an es- 
 tate being limited to A. for life, with remain- 
 der to B. in tail, with remainder to A. in fee, 
 with a general power of revocation reserved 
 to A., if A. by lease and release, not executed
 
 172 Of Uses since the [chap. ii. 
 
 Sect. v. according to the forms required by the power, 
 of limitations convey to C. in fee, he cannot afterwards ex- 
 
 of uses, and cre- 
 ation of legal ercise his power as to his own life estate, and 
 
 estates by the 
 
 statute, which his remainder in fee ; but the power will re- 
 
 differ from the . . -i /> t» 
 
 rules of the mam as to the estate tail of B. 
 
 common law. 
 
 So the usual power of appointment, li- 
 mited to a purchaser to prevent the dower of 
 his wife from attaching upon the estate, must 
 be considered as a power appendant. And 
 therefore, if the purchaser afterwards convey 
 the fee by lease and release, or any other 
 conveyance, without having had recourse to 
 the power, the power is extinguished. 
 
 In Ren, lessee of Hall v. Buckley, Doug. 
 292. 2nd ed. it was held that if a tenant 
 for life convey his legal estate for life merely 
 for the purpose of letting in a particular 
 charge, this will not destroy a power of leas- 
 ing previously reserved to him. But the au- 
 thority of this case has been doubted a . So, 
 where a tenant for life, with a power append- 
 ant, conveys his life estate, and the old use 
 is limited to him, the power, it should seem, 
 is not destroyed. 
 
 It has been mentioned, that if there be 
 tenant for life, with a power to make a join- 
 ture on an after-taken wife, or to make a 
 
 * See Sugd. Pow. 59.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 173 
 
 lease for years, to commence from his death, Sect. v. 
 for the purpose of raising portions for his o f limitations 
 
 . . of uses, and cre- 
 
 younger children, the power, in each of these ationof legal 
 
 estates by the 
 
 cases, is in gross. " Ihese powers, says statute, which 
 lord Hale a , " may by apt words be de- ruieTofTe 
 " stroyed by release, or by a fine or feoff- common 
 " ment b , which carry away and include all 
 " things relating to the land : but an assign- 
 " ment of to turn statum sunm, or other altera- 
 " tion of the estate for life, does not affect 
 " such power." Therefore if a tenant for life 
 convey by lease and release, or bargain and 
 sale in fee, he does not destroy a power in 
 gross reserved to him : for it is the nature of 
 these conveyances to pass only what the te- 
 nant might lawfully convey. 
 
 In 2 Roll's Abr. 263, pi. 2. it is said, that 
 if an estate be limited to A. for life, with re- 
 mainders over, and with a power for A. to 
 revoke the uses and limit new ones, and if 
 A. make a lease for life, the power, as to the 
 fee, is suspended. (Snape v. Turton ; and see 
 Clarke v. Phillips, 1 Vent. 42. Carth. 24. 2 
 Keb. 552.) Hence it has been inferred, that 
 if the tenant for life, in a similar case, con- 
 vey his life estate by lease and release, or bar- 
 
 a See Edwards v. Slater, 777. Note, the power in 
 
 Hard. 410. 416. Penne v. that case is erroneously 
 
 Peacock, Ca. Temp. Talb. called collateral; whereas, 
 
 41. according to the distinction 
 
 b So by recovery. Sa- before mentioned, it was in 
 
 ville v. Blackett, 1 P. W. gross.
 
 174 Of Uses since the [chap. ii. 
 
 Sect. v. gain and sale, such conveyance will suspend 
 of limitations or defeat the power. But the authorities cited 
 
 of uses, and ere- . . . ,_. 
 
 ation of legal do not warrant this conclusion. 1 hey go 
 statue, ihich only to this extent : that if A., tenant for life, 
 
 differ from the . , ., . i • . 
 
 rules of the with a power of revocation and new appoint- 
 ment, make a lease for life, the lease would 
 suspend the exercise of the power of revoca- 
 tion ; and this determination may be sup- 
 ported, I apprehend, upon principle; for it 
 may be assumed, that the lease was made for 
 the life of the lessee, and not of the lessor ; 
 and it may be assumed, that the lease was 
 made by feoffment, which was at that time 
 the usual mode of conveying the freehold by 
 way of lease. Now the lease might continue, 
 in point of duration, beyond the life of the 
 lessor, and it being made by feoffment, it 
 may be considered as having displaced the 
 reversion, out of which the use to be created 
 by the power, was to arise. But it is differ- 
 ent, if A. by bargain and sale, lease and re- 
 lease, or grant at common law, conveys his 
 life estate ; for neither of these conveyances 
 displaces the estates in remainder. 
 
 With respect to a power collateral ; as 
 where a feoffment is made in fee by A. to 
 uses, with a proviso that of B., a stranger, 
 shall revoke, the uses shall cease, the donee 
 of the power cannot release it, and a fine 
 . levied, or feoffment made by him, will not 
 extinguish it : for the person to be benefited
 
 chap, ii.] Stat. 27 H, 8. c. 10. 175 
 
 under the exercise of the power does not claim Sect. v. 
 the estate from or under the donee, but under Of limitations 
 
 of uses, and cre- 
 
 the original settlor. But if the donee of the ationofiegai 
 
 . estates by the 
 
 power in this case, should acquire the fee- statute, which 
 
 . - . i -i i differ from the 
 
 simple of the estate, the power would become rules of the 
 
 7 i i i , common law. 
 
 unnecessary, and would be consequently ex- 
 tinguished. 
 
 But when a collateral power, as a power 
 of selling and exchanging, is reserved to the 
 releasees or grantees to uses, there is supposed 
 to be a scintilla juris, or possibility of seisin, 
 remaining in them to serve the use arising 
 under the execution of the power : and it 
 should seem, that the power may be defeated 
 by the previous release or extinguishment of 
 the possibility of seisin. The destruction of 
 this scintilla juris occasioned one of the ob- 
 jections to the title in Wheate v. Hall a : for 
 Sir Martin Foulkes, to whom the legal estate 
 was devised by the will of Maximilian Wes- 
 tern, jointly with Charles Callis Western, 
 was surviving releasee to uses under the set- 
 tlement of 1793, and he joined in conveying 
 the legal estate to the uses of the settlement 
 of 1805. 
 
 In the case of Willis v. Shorrall b , lord 
 Hardwickje held, that a power vested in a 
 stranger to limit a term of years for raising a 
 
 a 17 Ves.80. b 1 Atk. 474.
 
 17G Of Uses since the [chap. ii. 
 
 Sect.v. sum of money upon a certain event, could 
 of limitations no t b e destroved by a fine levied by the per- 
 
 of uses, and cre- 
 ation of legal son, who claimed the lands subject to the 
 
 estates by tbe . 
 
 statute, which power ; and indeed, it may be stated as a 
 
 differ from the 1 . 
 
 rules of the general rule, that the destruction of a power, 
 
 common law. . . , ,, _ t . . - 
 
 if it be capable of being destroyed, must 
 proceed from the donee of it, and not from 
 the owner of the estate subject to its ope- 
 ration ; for it would be absurd, that the act 
 of the person, whose estate is to be over- 
 reached by the exercise of the power, and 
 not being the donee of it, should be compe- 
 tent to destroy a power, which, in its ori- 
 ginal creation, was intended to supersede such 
 estate. This seems to be clear in principle ; 
 but Holt, C. J. in Page v. Hayward, 2 Salk. 
 570. having stated generally his opinion, that 
 a recovery will bar a condition or limitation 
 collateral to the estate tail, for the destruc- 
 tion of which it is suffered, it has been con- 
 tended, that a recovery will destroy a power, 
 originally reserved with a view to defeat such 
 estate tail. But a recovery has the effect of 
 barring a collateral condition or limitation on 
 the principle, that it bars all remainders ex- 
 pectant upon it; but it cannot affect a use 
 precedent to the estate tail, of which the re- 
 covery is suffered ; for the recoveror comes 
 in, as of the estate of the tenant in tail, and 
 subject to all charges, to which it is subject, 
 and to all limitations preceding it.
 
 chap, ii.] Stal. 27 H. 8. c. 10. 177 
 
 The fallacy of the argument consists in sect. v. 
 considering the springing use under a power, Of limitations 
 
 . . «ii • • of uses, and cre- 
 
 as a limitation or remainder determining or ation of legal 
 
 OililtcS bv tlic 
 
 narrowing the limits of the estate tail : but statute, which 
 
 ,, . ., »,. differ from the 
 
 the use arises upon the exercise ot the power rules of ti.e 
 by the effect of, or under, the original settle- coraraon a 
 ment. For instance, if instead of creating 
 a lease or jointure under the power, the lease 
 or jointure had been created by the settle- 
 ment, it would be clear, that a recovery by 
 a tenant of an estate tail subsequent to the 
 lease or jointure, could not destroy such lease 
 or jointure. 
 
 Every power, so far as it is collateral, 
 takes effect as a springing use under the con- 
 veyance, by which the power is reserved, 
 superseding, or overreaching, the estates to 
 which it is collateral. It does not properly 
 determine an estate, like a remainder, or 
 conditional limitation ; but it substitutes an- 
 other estate in lieu of it. Suppose lands li- 
 mited to the use of A. for life, with remain- 
 der to B. in tail, remainder to C. in fee, sub- 
 ject to a proviso, that if a certain act be done 
 within the compass of A.'s life, the uses li- 
 mited to B. and C. should cease, and in lieu 
 thereof, the use should be to D. in fee. It 
 could scarcely be contended, that any act 
 by the tenant in tail could defeat this spring- 
 ing use. It would not, in the sense in which 
 the expression is used, determine the estate 
 
 VOL. I. N
 
 ]78 Of Uses since t lie [chap. n. 
 
 sect. v. tail of B. ; but it would prevent its taking 
 Of limitations effect in possession. It would substitute an- 
 
 of uses, and ere- * 
 
 ation of legal ti ier estate, in lieu oi the estate tail. A use 
 
 estates by the 
 
 statute, which taking; effect under a power to be exercised 
 
 differ from the a x 
 
 rules of the by A. is, in substance, the same thing. 
 
 common law. 
 
 The late case of Roper v. Halifax, deter- 
 mined in June 1817, in the Common Pleas, 
 has confirmed the above observations. In 
 that case, by indentures of lease and release 
 dated the 7th and 8th March 1788 (being- 
 articles executed previously to the marriage 
 of Miss Catherine Castle with Edward Bou- 
 verie, Esq.), it was agreed, that certain free- 
 hold estates in Suffolk, Miss Castles pro- 
 perty, should be conveyed by her to John 
 Thomas Batt and Everard Fawkener, Esqs. 
 their heirs and assigns, to the uses follow- 
 ing ; (viz.) to the intent that the said Cathe- 
 rine Castle, during the joint lives of herself 
 and the said Edward Bouverie, might receive 
 a rent-charge of 300Z. by way of pin-money; 
 and subject thereto to the use of Frederick 
 Robinson and John Crewe, their executors, 
 &c. for a term of ninety-nine years, for secur- 
 ing it : with remainder to the use of the said 
 Edward Bouverie for his life; remainder to 
 the use of the said J. T. Batt and E. Fawk- 
 ener, and their heirs, during his life, to pre- 
 serve contingent remainders ; remainder to 
 the use of the said Catherine Castle for her 
 life, with remainder to the use of the same
 
 chap. II.] Stat. 27 H. 8. c. 10. 179 
 
 trustees during her life, to preserve contingent Sect - v - 
 remainders : remainder to the use of Edward °/ 1,m,tations 
 
 " ot uses, and cre- 
 
 Vincent and John Blake, their executors, &c. at | on °{ k & 1 
 
 estates by the 
 
 for a term of five hundred years, for raisins; s ^ ate ' whi , ch 
 
 J _ ° difler from the 
 
 portions for the younger children of the in- rulesofthc 
 
 common law. 
 
 tended marriage ; with remainder to the use 
 of the first and other sons of the intended 
 marriage successively in tail male ; with re- 
 mainder to the use of the said Edward Vin- 
 cent and John Blake, their executors, &c. 
 for a term of six hundred years, for rais- 
 ing additional portions for daughters in 
 case of failure of issue male of the intend- 
 ed marriage; with remainder to such uses, 
 as the said Catherine Castle should appoint; 
 with remainder to the said Catherine Castle 
 in fee. And in the same indenture of re- 
 lease it was further agreed, " that in the 
 " said intended settlement there should be 
 " contained a power for the said J. T. Batt 
 " and E. Fawkener, or the survivor of them, 
 " or the heirs or assigns of such survivor, 
 " at any time or times, by and with the con- 
 " sent and approbation of the said Edward 
 " Bouverie 5 and Catherine Castle his intended 
 " wife, or of the survivor of them, to be tes- 
 " tified in manner last therein before direct- 
 " ed," [viz. by any deed or deeds, writing or 
 writings, under their hands and seals, or his 
 or her hand and seal, to be executed in the 
 presence of, and to be attested by, two or 
 more credible witnesses,] " from time to 
 N 2
 
 130 Of Uses since the [chap. ii. 
 
 sect. v. << time to sell or exchange all or any part of 
 of limitations << t ne lua nors, hereditaments, and premises, 
 
 of uses, and cre- 
 ation of lccai « in the county of Suffolk, so agreed to be 
 
 estates by the 
 
 statute, which "settled and limited as aforesaid; so as 
 
 differ from the . . 
 
 rules of the that the money to arise from the sale thereot 
 should be laid out in the purchase of, and 
 that the exchange should be made for, other 
 manors, &c. ; and so as all the hereditaments 
 and premises, so to be purchased and taken in 
 exchange, should be immediately thereupon 
 conveyed to the same uses, as the heredita- 
 ments sold or exchanged were by the intended 
 settlements to be limited and settled. And by 
 the same deeds the said Catherine Castle con- 
 veyed the same estates to the said J. T. Batt 
 and E. Fawkener, to the use of the said C. 
 Castle and her heirs until the marriage ; and 
 then to the use of the said J. T. Batt and E. 
 Fawkener, their heirs and assigns; upon 
 trust, when the said Edward Bouverie (who 
 was then a minor) should make the settle- 
 ment of his estates therein agreed upon to 
 convey and settle the said estates thereby con- 
 veyed, to the uses before stated. And in the 
 said indenture of release is contained the 
 usual power of appointing new trustees, by 
 the said Edward Bouverie and Catherine 
 Castle. 
 
 By indentures of lease and release, dated 
 the 21st and 22d November 1788 (being 
 the settlement made in pursuance of the above
 
 chap, ii.] Stat. 27 H. 8. c. 10. 181 
 
 articles), Mr. Bouverie duly conveyed his Sect. v. 
 estates to such uses, as were agreed upon by onimitations 
 
 of uses, and cie- 
 
 the articles. And in the indenture of release ationofiegai 
 
 estates by tbe 
 
 of the 22d November 1788, the trustees con- statute, which 
 
 . , . differ from the 
 
 veyed Mrs. Bouverie s estates to the uses rules of the 
 agreed upon by the articles ; subject to the cc 
 following powers of selling and exchanging : 
 " Provided always, that it shall and may 
 " be lawful to and for the said J. T. Batt and 
 " E. Fawkener,or the survivor of them, or the 
 " heirs or assigns of such survivor, with the 
 " consent and approbation of the said E. 
 " Bouverie and Catherine his wife, or of the 
 " survivor of them, to be testified in manner 
 " hereinbefore directed," [viz. by any deed or 
 deeds, writing or writings, under their hands 
 and seals, or his or her hand and seal, to be 
 executed in the presence of, and to be attested 
 by, two or more credible witnesses,] " from 
 " time to time, to sell or exchange all or any 
 " part of the manors, hereditaments, and 
 " premises, in the said county of Suffolk, in 
 " and by these presents settled and limited 
 " as aforesaid ; so as that the money to arise 
 " from the sale thereof, be laid out and in- 
 " vested in the purchase of, and that the ex- 
 " change be made for, manors, freehold mes- 
 " suages, lands, and hereditaments, and 
 " copyhold or leasehold messuages, lands, 
 " or hereditaments, which may be near to, 
 " or be intermixed with, or be proper and 
 " convenient to be held and enjoyed with, 
 N 3
 
 182 
 
 Sect. V. 
 
 Oflimitations 
 
 of uses, and cre- 
 ation of legal 
 estates, by the 
 statute, which 
 differ from the 
 rules of the 
 common law. 
 
 Of Uses since the [chap. ii. 
 
 " the freehold hereditaments and premises so 
 " to be purchased or taken in exchange ; but 
 " so that the copyhold or leasehold heredi- 
 " tanients and premises, so to be purchased 
 " or taken in exchange as aforesaid, do not 
 " exceed one fifth part of the value. of the 
 " entire hereditaments and premises to be so 
 " purchased and taken in exchange; and so 
 " as all the hereditaments and premises so 
 <l to be purchased and taken in exchange be, 
 " immediately thereupon, conveyed, settled, 
 " limited, and assured, to the same uses, upon 
 " the same trusts, and for the same intents 
 " and purposes, as the hereditaments and 
 " premises, which shall be so respectively 
 " sold or exchanged as aforesaid, are in and 
 " by these presents limited and settled as 
 " aforesaid."' With the usual declaration, 
 that the receipts of the trustees should be 
 good discharges to purchasers, &c. 
 
 By indentures of lease and release, dated 
 1st and, 2d March 1804, Mr. and Mrs. Bouve- 
 rie, in pursuance of their power, duly ap- 
 pointed Robert Blake, Esq. to be a trustee 
 in the room of Mr. Fawkener, who was then 
 dead ; and by the same indentures, and by 
 indentures of lease and release, dated 3d and 
 4th March 1804 (indorsed on the release of 
 2d March 1804), all the trust estates were 
 duly conveyed to the said J. T. Batt and Ro- 
 bert Blake, and their heirs, to the uses and
 
 chap. II.] Stat. 27 H. 8. c. 10. 183 
 
 upon the trusts of the settlements ofNovem- Sect - v - 
 
 ber 1788. Of limitations 
 
 of uses, and cre- 
 ation of legal 
 estates by the 
 
 By indentures of lease and release, dated ^ ute » whic 1 
 
 J ' diiler from the 
 
 the 28th and 29th June 1811, the release rules of the 
 
 common law. 
 
 being made between the said Edward Bou- 
 verie of the first part ; Everard William Bou- 
 verie, his eldest son, of the second part; Wil- 
 liam Ainge, of the third part ; and Richard 
 White, of the fourth part ; after reciting that 
 the said Edward Bouverie and Everard Wil- 
 liam Bouverie were desirous of destroying the 
 estates tail created by the settlement of 1788, 
 and of settling the estates therein comprised 
 (subject to the estates then existing therein 
 previous to the estate tail of the said Everard 
 William Bouverie), to the uses after men- 
 tioned ; it is witnessed, that for barring the 
 estate tail, &c. the said Edward Bouverie did 
 grant, release, and confirm to the said Wil- 
 liam Ainge, and his heirs, during the joint 
 lives of the said Edward Bouverie and Wil- 
 liam Ainge (amongst other estates,) the said 
 estates in the county of Suffolk ; to hold to 
 the said William Ainge and his heirs during 
 such joint lives ; to the intent that the said 
 William Ainge might become tenant to the 
 praecipe in a common recovery, in which the 
 said R.White was to be demandant, and the 
 said Everard William Bouverie, vouchee. 
 And it was thereby agreed, that such reco- 
 very, when suffered, should enure " to the 
 N 4
 
 184 
 
 Sect. V. 
 
 Of limitations 
 of uses, and cre- 
 ation of legal 
 estates by the 
 statute, which 
 differ from the 
 rules of the 
 common law. 
 
 Oj Uses since I he [chap.it, 
 
 several uses which, under or by virtue of 
 the said indentures of lease and release of 
 21st and 22d days of November 1788, 
 were immediately previously to the sealing 
 and delivery of these presents, or the lease 
 for a year on which the same was grounded, 
 subsisting or capable of taking effect, in 
 the said hereditaments, antecedent to the 
 uses by the aforesaid indenture of the 22d 
 day of November 1788, limited to the first 
 and other sons of the said Edward Bouverie, 
 by the said Catherine his wife, severally and 
 successively, according to their respective 
 seniorities, in tail male: and to the further 
 use, that all and singular the trusts, powers, 
 exemptions, and privileges, upon or to the 
 said several uses charged, annexed, relat- 
 ing, collateral, or limited to any person or 
 persons seised of, or entitled to, the same, 
 might still accompany the said several uses, 
 and be vested in, and belong to, and be 
 exercised by, the persons seised of, or en- 
 titled to, the same uses, or in whom the 
 same powers were vested ; to and for the 
 end, intent, and purpose, and so as that 
 the said several uses, trusts, powers, ex- 
 emptions, and privileges, might by these 
 presents, and the recovery to be suffered 
 in pursuance thereof, be to all intents, ef- 
 fects, constructions, and purposes, esta- 
 blished, or continued, and corroborated, or 
 confirmed. And after the expiration, or
 
 qhap. II.] Stat. 27 H. 8. c. 10. 185 
 
 "sooner determination, of the said several sect. v. 
 V uses, and in the mean time subject thereto, Of limitations 
 
 of uses, and crc- 
 
 " and subject to the several powers, and to ation of legal 
 
 estates bv the 
 
 "the uses, or estates, to be created thereby," statute, which 
 
 . . . , f-y , l t» • differ from the 
 
 to such uses, as the said Edward Bouverie rules of the 
 and Everard William Bouverie should ap- commor 
 point ; and in default of such appointment, 
 to the use of the said Everard William Bou- 
 verie in tail male; with remainder to the use 
 of the said Edward Bouverie in fee. 
 
 In Trinity term, 51st Geo. 3. a recovery 
 was duly suffered, in pursuance of the last 
 mentioned indentures. 
 
 By indentures of lease and release, dated 
 the 20th and 2 1st December 1811, the release 
 being made between the same Edward Bou- 
 verie, of the first part ; the said Everard Wil- 
 liam Bouverie, of the second part; the said 
 John Thomas Batt and Robert Blake, of the 
 third part; the Rev. John Bouverie, of the 
 fourth part; Henry Bouverie, Esq. and the said 
 William Ainge, of the fifth part : the honour- 
 able Philip Pleydell Bouverie and John Dor- 
 rien, Esq. (trustees duly appointed in the room 
 of the said Edward Vincent and John Blake, 
 both deceased), of the sixth part; and the right 
 hon. John then lord Crewe (in the settlement 
 of 1788 called John Crewe, Esq. and who had 
 survived the said Frederick Robinson, his co- 
 trustee), of the seventh part : it is witnessed,
 
 186 Of Uses since the [chap. it. 
 
 Sect. v. tna t pursuant to, and in execution of, the 
 
 Suse? andcre. P ower an d authority to the said Edward Bou- 
 
 arion of legal ver j e ant j Everard William Bouverie for that 
 
 estates by the 
 
 statute, which p ur p se given, bythe said indenture of release 
 
 diller from the ' r ° " 
 
 rules of the of the 29th June .1811, and such recovery, 
 
 common law. " 
 
 and of every other power or authority, the 
 said Edward Bouverie and Everard William 
 Bouverie did thereby appoint, that the said 
 estates in the county of Suffolk should (but 
 subject, and without prejudice, to the uses, 
 estates, and powers, in and by the same in- 
 denture of release limited and raised, or esta- 
 blished and confirmed, antecedently to the 
 joint power of appointment thereby given 
 and reserved to the said Edward Bouverie 
 and E. W. Bouverie) be and remain to the 
 uses therein after declared. And it was fur- 
 ther witnessed, that for a nominal considera- 
 tion, the said J. T. Batt and R. Blake, ac- 
 cording to their several estates and interests, 
 did bargain, sell, and release, and the said 
 Edward Bouverie and E. W. Bouverie did 
 grant, release., and confirm, unto the said 
 John Bouverie and his heirs, all and sin- 
 gular the said estates in Suffolk, to hold the 
 same (but subject and without prejudice, as 
 appears in the now stating indenture) unto 
 the said John Bouverie, his heirs and assigns, 
 to the uses therein after declared. And it 
 was thereby declared, that as well the limita- 
 tion and appointment, as the grant and re- 
 lease therein before contained, should seve-
 
 chap. II.] Stat. 27 H. 8. c. 10. 107 
 
 rally enure to the following uses; viz. to the sect. v. 
 
 intent, thatthe said Catherine Bouverie might, °/ limitations 
 
 o ' of uses, and cre- 
 diting the joint lives of herself and the said »t«°nofiegai 
 
 ° " estates by the 
 
 Edward Bouverie, receive thereout the rent- statute, which 
 
 differ from tlie 
 
 charge of 300/. provided for her by the settle- mies of the 
 
 common law. 
 
 ment of 1788 ; and subject thereto, to the use 
 of the said John lord Crewe, his executors, 
 &c. for the term of ninety-nine years to com- 
 mence from the date of the said indenture of 
 the 22d November 1788, by way of continua- 
 tion, corroboration, and confirmation of the 
 term of ninety-nine years thereby limited ; 
 and also by way of continuation, &c. of the 
 trusts .thereby declared of the same term; 
 with remainder to the use of the said Edward 
 Bouverie for his life ; with remainder to the 
 said J. T. Batt and R. Blake, and their 
 heirs, during his life, to preserve contingent 
 remainders ; with remainder to the use of the 
 said Catherine Bouverie for her life, by way 
 of corroboration of the estate limited to her 
 by the said settlement of 1788 ; with re- 
 mainder to the use of the same trustees, du- 
 ring her life, to preserve contingent remain- 
 ders ; with remainder to the use of the said 
 Philip P. Bouverie and John Dorrien, their 
 executors, &c. for the term of five hundred 
 years from the decease of the survivor of the 
 said Edward Bouverie and Catherine his wife, 
 by way of continuation, corroboration, and 
 confirmation of the term of five hundred 
 years limited by the said settlement of the
 
 1 88 Of Uses since the [c H a p . 1 1 . 
 
 sect.v. 22d November 1788, and also by way of con- 
 of limitations tiiiuation, &c. of the trusts thereby declared 
 
 of uses, and ere- . . . , . 
 
 ation of legal of the same term; with remainder to the use 
 stetate,w^jch e of the said Everard William Bouverie for his 
 ruieT of° the e life; with remainder to the use of the said 
 
 common law. j ^ g^ ^ R g,^ and fo^ j^ 
 
 during his life, to preserve contingent re- 
 mainders; with remainder to the first and 
 other sons of the said Everard William Bou- 
 verie successively, in tail male ; with di- 
 vers remainders over in strict settlement. 
 And in the said indenture a new power of 
 sale and exchange of the above estates is re- 
 served to the said J. T. Batt and R. Blake. 
 
 In order to decide whether the powers of 
 sale and exchange, contained in the settle- 
 ment of 1788, were destroyed by the deeds 
 and recovery of 1811, an action of assump- 
 sit was brought in the court of Common Pleas, 
 Robert Roper, gent, plaintiff, and Thomas 
 Halifax, Esq. defendant, for not performing a 
 contract for the purchase of the estates in 
 question. The cause was tried at the West- 
 minster sittings in Easter term 1816, before 
 Mr. Justice Dallas; when a verdict was 
 found for the plaintiff; subject to the opi- 
 nion of the court of Common Fleas on a spe- 
 cial case. 
 
 The first point reserved and stated in this 
 case for the opinion of the court, is not ma- 
 terial to the present purpose.
 
 chap. n.J Stat. 27 H. 8. c. 10. 189 
 
 The second point was, "whether the sect. v. 
 
 " power of sale contained in the settlement of limitations 
 
 , , , °f uses » an( * cre " 
 " of JNovember 1788, was destroyed by the atkm of legal 
 
 cstutcs bv the 
 
 recovery of 1811 ? If not, statute, which 
 
 differ from the 
 rules of the 
 
 " 3dly, Whether the power was not re- coramon ' 
 " leased, and at an end, by the settlement of 
 '* December 1811 ? If not, whether a good 
 " title could be made to the defendant by the 
 " plaintiff and Mr. and Mrs. Bonverie and 
 " their trustees, under an exercise of the 
 " power of sale in the settlement of 1788, 
 " and also of the power of sale contained in 
 " the settlement of December 1811; or under 
 " one of those powers." If the court should 
 be of opinion, that a good title could be so 
 made, then the verdict was to be entered for 
 the remainder of the purchase-money : if not, 
 a nonsuit was to be entered. 
 
 On the 16th of June 1817, Gibbs, Chief 
 Justice of the Common Pleas, delivered the 
 opinion of the court. In stating the case, 
 his lordship said, " By the operation of all 
 H the deeds, the estates, powers, and trusts, 
 " created by the original deed of 1788, are 
 u excepted out of the deed of 1811." And 
 after stating the opinion of the court on the 
 first point reserved, his lordship proceeJed 
 thus :
 
 190 Of Uses since the [chap. n. 
 
 Sect.v. « Secondly. Whether the power of sale 
 
 Of limitations « m t ^ G settlement of 1788, is destroyed by 
 
 of uses, and crc- 7 J * 
 
 ation of legal « ^he reC0 vei'V of 1 81 1 ? 
 
 estates by the ^ 
 
 statute, which 
 
 differ from the rt rr* i i • ,i • , • i 
 
 rules of the " 1 o determine this, we must consider 
 
 "the nature of the power; by whom, and 
 " for whom, it is to be exercised. 
 
 " It is a naked authority, to be exer- 
 " cised by trustees for the benefit of those 
 " who take under the settlement, chiefly 
 " with the assent of Mr. and Mrs. Bouverie. 
 
 " It is antecedent to the estate tail. 
 
 " The proposition of the defendant is, 
 " that the recovery by Mr. Bouverie and his 
 " son, with the consent of Mrs. Bouverie, 
 " destroys this power. This is contrary to 
 "justice, and the intent of the settlors. 
 
 " It lies on the defendant to establish this 
 " on principle, or authority. He does nei- 
 " ther. 
 
 " The effect of a recovery is to destroy all 
 ft remainders, &c. dependent on the estate tail. 
 " This is a power, which must act on the 
 " land, before it become subject to the estate 
 Ci tail, by substituting other land in its place. 
 
 " It is against all justice, that the tenant 
 " in tail should destroy the power, without
 
 chap. II.] Stat. 27 H. 0. e. 10. 191 
 
 " the concurrence of the parties interested, skct. v. 
 " Therefore the power is undisturbed by the wifouMtoM 
 
 1 ' ^ ot uses, and cre- 
 
 " recovery. atl0n of ie § al 
 
 J estates by the 
 
 statute, which 
 differ from the 
 
 " Then it is said, that if the recovery did rules of the 
 
 common law. 
 
 " not destroy it, it was destroyed by the deeds 
 "of December 1811, in which the trustees 
 "joined and were granting parties. 
 
 " We much doubt, whether a power of 
 " this sort could be destroyed by the trustees. 
 " It is a naked authority, for the benefit of 
 " others. But we are clear, that it has not. 
 " The deeds of 1811 operate as an execution 
 " of a power, and an appointment by Bou- 
 " verie and his son under that power. But, 
 " by the terms of the deed, they act only on 
 "so much of the estate, as attended and 
 " followed the estate tail. By the terms of 
 " the deed, all previous to the estate tail is 
 " left untouched. 
 
 "They remain on the operation of the 
 " deed of 1788; and the trustees retain their 
 " authority under that deed. 
 
 44 Third. Whether a good title, &c. 
 
 " It is not necessary to say more on the 
 " power of 181 1 ; because we are of opinion, 
 " that under the deed of 1788, there remains 
 " to the trustees full authority ; and we are
 
 192 
 
 Sect. V. 
 
 Of limitations 
 of uses, and cre- 
 ation of legal 
 estates by the 
 statute, which 
 differ from the 
 rules of the 
 common law. 
 
 Of Uses since the [c H a p . n . 
 
 " of opinion, that a good title may be executed 
 " by the trustees. And if these are the ques- 
 " tions upon which our opinion is required, 
 " we are of opinion the plaintiff is entitled to 
 " recover. And we do not mean to intimate, 
 " that there are any other points in the case 
 " to prevent his recovering." Judgment was 
 accordingly given for the plaintiff 3 . 
 
 When powers of selling, exchanging, or 
 making partition are reserved to be exercised 
 by trustees, having a seisin to uses, or 
 having no interest at all, it is usual to insert 
 powers authorizing the appointment of new 
 trustees in the room of the original trustees 
 in the event of death or incapacity. There 
 can be no doubt, that by the mere appoint- 
 ment of the new trustees, they may be in- 
 vested with the powers of selling, &c. with- 
 out any ulterior act; but in practice, ques- 
 tions frequently arise upon the construction 
 of powers of this kind b . 
 
 Having explained the nature of powers in 
 general, and the manner in which they may 
 be destroyed or suspended, I shall defer the 
 further consideration of them to a subsequent 
 
 a See the opinion given 
 on this case, before it came 
 into court, Appendix, No. 
 VII. 
 
 b See Appendix, 
 VIII. 
 
 No.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 193 
 
 part of this work, when I shall examine the SectV - 
 deed or instrument, by which powers are ex- rfJSjSJSe- 
 ecnted atiou of ,egal 
 
 CCUICU. estates by the 
 
 statute, which 
 differ from the 
 
 It is scarcely necessary in this place to re- rules of ', he 
 
 J J r common law. 
 
 peat, that all future and shifting uses arise ~, t , .. 
 
 r ° Of the seisin, 
 
 out of the estate of the feoffees, releasees, &c. T^ 60 " 4 *, 
 
 ' 7 shifting or fu- 
 
 and not out of the estate of cestuique use : tu . re use nn,3t 
 
 1 arise. 
 
 for if a future use be limited out of the estate 
 of the latter, it would in fact be the limitation 
 of a use upon a use; which the law will not 
 permit a . It follows, that no springing use 
 can be limited upon a bargain and sale : for 
 the use cannot arise out of the estate of the 
 bargainee, he being merely a cestuique use; 
 nor can it arise out of the original seisin of 
 the bargainor ; for after the bargain and sale, 
 there can be no possibility of seisin remain- 
 ing in him. But this I shall explain more 
 fully hereafter. As to powers of leasing, they 
 can neither be reserved upon a bargain and 
 sale b , nor upon a covenant to stand seised : 
 for the consideration in the latter conveyance 
 can only extend to the covenantee, and those 
 of his blood, and not to a lessee. But gene- 
 ral powers of revocation may be reserved 
 upon a covenant to stand seised d . 
 
 *1 Co. 136. b. 137. a. Co. c Mildway v. Standish, 
 
 Litt. 271. b. Moor, 144. 
 
 b Poph. 81. d See Shep. Touch. 524. 
 
 post 2 vol. 
 
 VOL. I. O
 
 194 Of Uses since the [chap. ii. 
 
 sect. v. (9.) Springing- uses, whether arising under 
 
 Of limitations the provisions of a settlement, or by the ex- 
 
 of uses, and ere- ... 
 
 ation of legal ercise of powers reserved in it, and when 
 statute, which they are to defeat an estate in fee-simple, are 
 rales of the confined to the limits of time prescribed by 
 courts of justice for preventing perpetuities. 
 Rules restrain- j f estate be limited to A. in fee, subject 
 
 ing springing ' J 
 
 uses within the j j je defeated in a certain event by a spring- 
 
 limits prescribed <* * ° 
 
 against perpe- ' w „ U se in favour of B. and his heirs : or if 
 
 tuities. ° 7 
 
 an estate be settled to uses in strict settle- 
 ment, subject to a power of selling reserved 
 to a stranger and his heirs, and not capable 
 of being barred or destroyed by the owner of 
 the estate*, the springing use, in either case, 
 must be limited to arise within the compass 
 of a life or lives in being, and twenty-one 
 years after ; or perhaps, in the case of a post- 
 humous child, within a few months longer. 
 
 But the doctrine of perpetuity is not ap- 
 plicable to springing uses which determine an 
 estate tail, in the nature of a condition subse- 
 quent; for the first tenant in tail in posses- 
 sion may by recovery bar the entail, and all 
 remainders and collateral limitations expect- 
 ant upon it, and acquire the fee-simple : as 
 where an estate is limited to A. for life, with 
 remainder to B. in tail, subject to a provi- 
 sion, that if B. shall not within a certain 
 period assume, and continue to use, a parti- 
 
 a See Ware v. Polhill, II Ves. 257.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 195 
 
 cnlar name, the estate shall remain to C. in seoi.v. 
 fee. A recovery by B. will defeat the limita- of limitations 
 
 of uses, and cre- 
 tlOll tO C. ation of legal 
 
 estates by the 
 statute, which 
 
 So, where an estate is settled to uses in rules of the 
 strict settlement upon A. for life, with remain- c " 
 der to his first and other sons successively in 
 tail, with remainder to B. for life, with remain- 
 der to his first and other sons successively in 
 tail, with other remainders of a similar kind, 
 with a power of selling and exchanging re- 
 served to the releasees, and the survivor of 
 them, and the heirs of the survivor, to be 
 exercised with the consent of the tenant for 
 life or in tail for the time being in possession • 
 here, if the first tenant in tail acquires the 
 possession before the power is exercised, and 
 suffers a recovery, the power is extinguished ; 
 and therefore the power in this case, is not 
 within the reason of a perpetuity a . 
 
 a Goodwin v. Clarke, 1 " had the estate precedent, 
 
 Lev. 35. " And as to the " might bar it by a common 
 
 " creating of the term, it is " recovery.'' 
 " said, that a term may as From these principles, a 
 
 " well be created to arise practice has arisen in cases 
 
 " upon a failure of issue of strict settlement, to di- 
 
 " male, as a power to sell rect, that during minority of 
 
 "on the failure of issue each tenant for life or in tail, 
 
 " male, which hath been being an infant, the surplus 
 
 " adjudged good in the case rents and profits should be 
 
 " of Vincent v. Lea, in accumulated for some par- 
 
 " Moor, Rep. 147. 3 Cro. ticular purpose; for the first 
 
 " 26. 1 Leon. 285. 3 Leon, tenant in tail of age, ac- 
 
 ■« 108. Co. Litt. 113. a. quiring the possession, may 
 
 " And as to the objection by recovery destroy the 
 
 " of a perpetuity, it is no- trusts for future accumula- 
 
 " thing; for the son, who tions: but since the late 
 
 o 2
 
 196 Of Uses since the [chap. n. 
 
 Sect. v. It is said in the case of Washbourne v. 
 
 Of limitations Downes, 1. Cha. Ca. 23. that " A perpetuity 
 
 cf uses, and ere- . . . ., . . . . . 
 
 ation of legal " is where, if all that have interest join, yet 
 
 estates by the 
 
 statute, which " they cannot bar or pass the estate ;" and in 
 
 differ from th 
 rules of the 
 common law. 
 
 ruieTofThe^ the case of Scattergood v. Edge, 1 Salk. 229. 
 
 that "every executory devise is a perpetuity 
 " so far as it goes; i. e. an estate unalienable, 
 " though all mankind join in the convey- 
 ance." But these definitions of a perpetuity 
 are not accurate. If an estate be limited to 
 the use of A. and his heirs, butif B. should die 
 without heirs of his body, then to the use of C. 
 and his heirs, the limitation to C. and his heirs, 
 would be void, as tending to a perpetuity. 
 Yet C. might, no doubt, release or pass his 
 future estate; and with the concurrence of 
 the necessary parties, the fee-simple might be 
 disposed of, before there was a failure of 
 issue of B. A perpetuity may, with greater 
 propriety, be defined to be a future limitation, 
 restraining the owner of the estate from 
 aliening the fee-simple of the property, dis- 
 charged of such future use or estate, before 
 the event is determined, or the period arrived, 
 when such future use or estate is to arise. 
 If that event or period be within the bounds 
 prescribed by law, it is not a perpetuity. 
 
 cases of Lord Southampton Swanst. 432. it seems ad- 
 
 v. Marquess of Hertford, visable to restrain the ge- 
 
 2 Vcs. and Beanies, 54. and nerality of these trusts. 
 Marshall v. Holloway, 2
 
 chap. ii.] Stat. 27 //. 8. c. 10. 197 
 
 The principle seems applicable to all fu- Sect - v * 
 ture interests, as rents' charge, and terms of °/ 1,ni,ta,,ons 
 
 ' o ' ot uses, and ere. 
 
 years, which cannot be barred by the first ati °J.° f b Ie fjJg 
 tenant in tail in possession. A case of con- statute, which 
 
 * , differ from the 
 
 siderable interest arose in Ireland some few rules of the 
 
 common law, 
 
 years ago. An estate having been settled by 
 will to uses in strict settlement, a rent charge 
 was limited to arise after the failure of issue 
 of a person not taking any estate in the pro- 
 perty settled : and upon argument it was de- 
 termined by the Court of King's Bench in 
 Ireland, that the limitation of the rent charge 
 was void, as being too remote a . 
 
 The period, beyond which a springing use 
 or executory devise is not allowed to take 
 effect, seems to be adopted by analogy to 
 limitations in strict settlement ; as a limita- 
 tion to A. for life, with remainder to his first 
 and other sons successively in tail, with re- 
 mainders over of the same kind ; the first 
 tenant in tail cannot be deprived of the pos- 
 session beyond a life or lives in being; and in 
 consequence of his minority, he may be de- 
 prived of the actual power of alienation until 
 21 years after; and hence it has been con- 
 tended in the late case of Beard v. Westcott, 
 5 Taunt. 393. and 5 Barnw. and Aid. 801. 
 that a limitation after an estate for a life 
 or lives in being, and a gross term of 21 
 
 * Hartopp v. Lord Carberv, 1819. 
 o3
 
 198 Of Uses since the [chap. n. 
 
 Sect. v. years, is not warranted by the rule prescribing 
 of limitations jj ]e \\ m \t s f springing uses and executory 
 
 of uses, and ere- * ° ° J 
 
 ation of legal devises; for by analogy to settlements, from 
 
 estates by the J °*' 
 
 statute, which which the rule is taken, the 21 years must 
 
 difler from the 
 
 tuies of the depend upon the minority of an infant, who 
 
 common law. * . . „ , i . /Y , 
 
 may die during infancy, and thereby afford a 
 chance of accelerating the limitations over. 
 It cannot be discovered from the certificate 
 of the Judges of the King's Bench, whether 
 this argument prevailed ; but if it should be 
 ever judicially adopted, it would, no doubt, 
 seriously affect many titles : the rule having 
 been, at least in practice, settled since the 
 duke of Norfolk's case, in the reign of Charles 
 the 2d, that the limitation of time in the case 
 of perpetuities extended to a life or lives in 
 being, and 21 years afterwards. 
 
 It is supposed, however, that the laws 
 prohibiting perpetuities in springing uses and 
 executory devises have been adopted by ana- 
 logy to the common law. But I do not 
 know where the analogy is to be discovered. 
 In Co. Litt. 214. b. it is said, "that if I 
 " enfeoff another of an acre of ground, upon 
 "condition, that if mine heir pay to the 
 " feoffee, &c. 20s., that he and his heirs shall 
 "enter, this condition is good." But I do 
 not find any rule of the common law, con- 
 fining the period, within which the entry is to 
 be made ; and although an inleresse termini 
 may be created at the common law, I am not
 
 chap. I i.J Stat, '11 H, 8. c. 10. 199 
 
 aware of any case at the common law, fixing Sect - v - 
 the period, within which it must take efl^JUJJJSU 
 in possession. The converse, therefore, of the JJjJJ^^Slj 
 supposition, will probably be more correct ; JEE}'* 11 ^ 
 for it can scarcely be doubted, that by ana- rules of the 
 
 ^ " f common law. 
 
 logy to the modern doctrine of perpetuities, 
 the rights of entry upon common law con- 
 ditions, and the inter esse termini, would be 
 confined to the time allowed in cases of exe- 
 cutory devises and springing uses. 
 
 It may be proper to conclude these ob- 
 servations on perpetuities, with noticing a case 
 of great importance, and on the validity of 
 which many titles depend. 
 
 An estate is devised to A. and his heirs, 
 he and they taking and using a particular 
 surname. In this case it has been contended, 
 by gentlemen of respectability, that if A. as- 
 sumes the name, he acquires the estate, sub- 
 ject to a condition in law, that if he or his 
 heirs discontinue to use the surname, the 
 heir at law of the testator will have a right 
 of entry upon the estate, at whatever period 
 the non-user of the name may happen. If 
 this construction should be correct, a perpe- 
 tuity would be created ; but I cannot enter- 
 tain a doubt, that the principle of law pre- 
 scribing the boundaries within which spring- 
 ing uses and executory devises are to take 
 effect, would apply to the entry of the heir in 
 o 4
 
 200 Of Uses since the [chap. n. 
 
 Sect. v. this case, upon the breach of the condition, 
 of limitations j£* |^ were admitted, that such condition was 
 
 of uses, and cre- 
 ation of legal no j performed by taking the name. 
 
 estates by the r * ° 
 
 statute, which 
 (lifter from the 
 
 mics of the But independently of viewing the case 
 
 common law. % m 
 
 upon the principle of perpetuity, there seems 
 to be no doubt, that the heir, in this case, 
 would have no right of entry, upon the non- 
 user of the name: the devisee having, in the 
 first instance, assumed the name. 
 
 It may, on the other hand, be contended, 
 that the devisee would take a determinable 
 fee, not being an estate tail, and so not within 
 the operation of a recovery : or that the 
 devisee would take a fee-simple subject to 
 a condition having a double operation: first, 
 to acquire the estate on the performance 
 of one act; and secondly, to lose it on the 
 non-performance of another ; and that this 
 condition is not within the laws relating to 
 perpetuities. Neither of these arguments 
 appears to be tenable. 
 
 Before 3 the statute of quia emptores (18 
 Edw. 1.) an estate might have been granted 
 to A. B. and his heirs, so long as C. D. and 
 his issue should live, or so long as C. D. and 
 
 a The following observa- sequently well considered 
 
 tions are extracted from an by two gentlemen of emi- 
 
 opinion prepared by the au- nence at the har, and signed 
 
 thor, and which was sub- by them.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 201 
 
 his heirs should be tenants of the manor of Sect. v. 
 Dale: and upon C. D.'s ceasing; to have issue, °/ 'imitations 
 
 7 ' ° of uses, and cre- 
 
 or of beine: tenant of the manor of Dale, ation ° f legal 
 
 estates by the 
 
 the estate reverted to the donor, not as a statute, which 
 
 differ from the 
 
 condition broken, of which the donor, or his rules of the 
 
 ,.-111,1 i common law. 
 
 heir, might take advantage by entry ; but as 
 a principle of tenure, in the nature of an 
 escheat upon the death of a tenant in fee- 
 simple without heirs general. But the statute 
 of quia emptores destroys the immediate te- 
 nure between the donor and donee, in cases 
 where the fee is granted ; and consequently 
 there can now be no reverter, or any estate or 
 possibility of a reversion, remaining in the 
 donor after an estate in fee granted by him. 
 This conclusion directly follows from the doc- 
 trine of tenures, and the effect of the statute 
 of quia emptores upon that doctrine. The pro- 
 position does not require the aid of decided 
 cases; but the passage in 2 And. 138. con- 
 tains an accurate exposition of the law upon 
 this subject : " If land be given to A. and his 
 " heirs, so long as J. S. It as heirs of his 
 " body, the donee has fee, and may alien it. 
 " 13 Hen. 7., 11 Hen. 7., 21 Hen. 6. fol. 
 " 37.; and says the law seems to be plain in 
 " it; and cites 11 Ass. 8., where the S. C. is 
 " put and held as before; and that there if 
 " the land be given to one and his heirs, so 
 " long as J. S, and his heirs shall enjoy the 
 ** manor of D., those words (so long) are
 
 202 Of Vacs since the [CHAP, n. 
 
 Sect. v. "entirely void and idle, and do not abridge 
 
 Of limitations it tne es tate." 
 
 of uses, and cre- 
 ation of legal 
 estates by the 
 
 statute, wir.ch r fhe references in this passage (with 
 
 differ from the . 
 
 rules of the the exception of the 11 Ass. 8.) are not in 
 
 common law. 
 
 the report correctly stated ; but they are dis- 
 covered in 13 Hen. 7. Easter Term, fol. 24. 
 11 Hen. 7. pi. 25. 21 Hen. 6. Hill. pi. 21. It 
 will be proper to refer to the case first men- 
 tioned ; premising, that, by the common law, 
 where an absolute estate in fee-simple was 
 granted, no restraint could be placed on the 
 alienation of it; inasmuch as such restraint 
 would be repugnant to the grant itself. Upon 
 a question, in the case referred to, whether a 
 condition restraining alienation upon the 
 grant of an estate tail since the statute de 
 donis, was valid, Vavisour thought it valid ; 
 but added, that he agreed, that such con- 
 dition imposed on a feoffee in fee-simple, so 
 long as J. S. has issue, was void. 
 
 There is no ground, therefore, to consider 
 the case in question, as a determinable fee at 
 the common law. 
 
 The fee-simple conditional at the common 
 law before the statute de donis (13 Ed. 1285), 
 differed from the fee-simple made subject to 
 be defeated by the performance or non-per- 
 formance of a condition, of which the grantor 
 or his heir might take advantnge by entry.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 203 
 
 If an estate were granted to A. and his heirs, Sect v - 
 and if the grantor P^d the grantee or his °/ limitations 
 
 D l ~ of uses, and cre- 
 
 heirs a sum of money, the grantor or his ation of J e g^ 
 
 J ? ° estates by the 
 
 heirs might re-enter ; or if the estate were s , ta i ute ,.' wh "? h 
 
 ° difrer from the 
 
 granted to John Thompson and his heirs, rulesoftlle 
 
 . ■ . common law. 
 
 with a right of entry reserved to the grantor 
 and his heirs, in case the grantee or his heirs 
 should discontinue to use the name of Thomp- 
 son ; the condition in each of these cases is 
 of the latter sort. Its operation is single by 
 defeating the estate on doing, or omitting to 
 do, a particular act. 
 
 But when an estate is given to A. and his 
 heirs, he taking the name of B. within a given 
 period, and he and his heirs afterwards con- 
 tinuing to use such name ; here there are in 
 fact two conditions ; and the case resembles 
 the fee-simple conditional at the common 
 law, as mentioned in the statute de donis. 
 
 The fee-simple conditional at common law 
 before the statute de donis, was created by a 
 conveyance to a man and the heirs of his 
 body, with a condition annexed to the gift, 
 that if the grantee died without issue, the 
 lands should revert to the donor. They con- 
 strued the conveyance to the grantee and the 
 heirs of his body, equivalent to a fee-simple, 
 upon which no remainder could be appointed, 
 in the same way, as if the gift had been made 
 to a man and his heirs, if he had heirs of his
 
 204 
 
 Sect. V. 
 
 Of limitations 
 of uses, and cre- 
 ation of legal 
 estates by the 
 statute, which 
 differ from the 
 rules of the 
 common law. 
 
 Of Uses since the 
 
 [chap, ii. 
 
 body. The birth of the issue was the per- 
 formance of the condition, which, for the 
 purpose of alienation, made the fee-simple, in 
 the hands of the alienee, absolute, by destroy- 
 ing- the possibility of reverter. But if, before 
 alienation, the donee had died without issue, 
 the lands reverted to the donor; and the 
 remedy for recovery of the lands upon the 
 reverter, was not by entry of the donor or his 
 heirs, as for a condition broken, but by a for- 
 medon in the reverter. See Plowden, 235 
 where these points are accurately stated. 
 
 Hence it appears, that if lands were given 
 to A. and the heirs of his body, with a con- 
 dition expressed, that if A. died without heirs 
 of his body, the lands should revert; upon the 
 birth of issue of A., the condition was per- 
 formed, and A. had an immediate power of 
 aliening the absolute fee-simple; so that for 
 the purpose of facilitating the power of aliena- 
 tion, the birth of the issue was considered as 
 the performance and dispensation of the con- 
 dition in a case, where the right of entry was 
 in terms expressed to arise on the failure of 
 issue. This seems to be a case precisely ana- 
 logous to that of a condition requiring a per- 
 son to take and use a name ; the taking the 
 name gives the grantee or devisee a right to 
 the estate, by amounting to a performance of 
 the condition, and the subsequent non-user 
 does not deprive him of it; for according
 
 chap, ii.] Stat. 27 H. 8. c. 10. 205 
 
 to the principle of conditional fees, a con- sect. v. 
 dition cannot have a double operation, so as 0f 'imitations 
 
 of uses, and cre- 
 
 to confer upon a man an estate by the per- ationofiegai 
 formance of an act required by the condition, statute, which 
 
 - . . , . , . _ . . differ from the 
 
 and subsequently to deprive him of it by the rules of the 
 
 ~ « ., common law. 
 
 non-performmance ot another. 
 
 It will be seen from the above observa- 
 tions, that in the case of the fee-simple con- 
 ditional at the common law, the grantee, 
 upon the birth of issue, acquired as between 
 himself and the donor, but without prejudice 
 to the rights of the alienee of the grantee, a 
 determinable fee : which determinable fee 
 was, as I have before explained, made abso- 
 lute by the operation of the subsequent sta- 
 tute of quia emptores. 
 
 But in the case of the common condition, 
 as in the gift or devise of an estate to John 
 Thompson and his heirs, subject to a right of 
 entry reserved to the donor or devisor or his 
 heirs, in case John Thompson and his heirs 
 should cease to use that surname, there can 
 be little doubt, it is conceived, that courts of 
 justice would limit the breach of the con- 
 dition, to the periods fixed by the policy of 
 law, in cases of springing uses and executory 
 devises. 
 
 Sect. VI. 
 
 VI. I have now explained the cases, in of the effect of 
 
 . . . , . _ the statute of 
 
 which the creation and limitation of estates uses upon the 
 
 laws of remitter.
 
 200 Of Uses since the [chap. ii. 
 
 Sict. vi. by way of use since the statute, correspond 
 of the ciioct of with, and differ from, the ancient manner of 
 
 the statute of • ... . 
 
 uses upon the limiting and creating estates at common law. 
 
 laws of remitter, _ . . 
 
 1 shall now proceed to point out the altera- 
 tions produced by the statute of uses in the 
 ancient laws relative to remiiler. 
 
 By the common law, if tenant in tail had 
 enfeoffed his son in fee, which son at the time 
 of the feoffment was within age, and the te- 
 nant in tail had died ; the son, after the 
 father's death, as heir in tail, would have 
 been remitted to his former estate d . But 
 since the statute, if tenant in tail make a 
 feoffment in fee to the use of his issue being 
 within age, and to his heirs, and then die; 
 and the right of the estate tail descend to the 
 issue, being within age; the issue shall not 
 be remitted ; for the issue has the use in fee 
 by the feoffment, and then the statute exe- 
 cutes it in such manner and plight, as it was 
 first limited. But in the case, if the issue 
 waive the possession, and bring a formedon 
 in the descender, and recover against the 
 feoffees, he shall be remitted 6 . 
 
 It was therefore said, that if an infant, or 
 a woman, having right to lands discontinued, 
 whereon entry was not lawful, came to such 
 lands by way of use raised out of the estate, 
 
 J Litt. sec. 6G0. * Co. Litt. 348. b.
 
 chap, ii.] Stat. 27 //. 8. c. 10. 207 
 
 the first taker should not be remitted 1 . So Segt.vi. 
 in Amy Townsend's case 5 , where tenant in 0f,hc cffect of 
 
 J the statute of 
 
 tail made a feoffment in fee to the use of his uses oponthe 
 
 laws of remitter. 
 
 wife for life ; remainder to his son and heir 
 apparent in fee. The feoffor and his wife 
 died ; and it was determined, that the heir in 
 tail was not remitted. However, though the 
 first taker be not, as in the case of the issue 
 put by Coke, yet it seems, that the issue of 
 that issue, or the one in remainder after the 
 first taker, shall be remitted 1 *. 
 
 Amy Townsend's case was not affected by 
 the statute 32 Hen. 8. That statute directs, 
 that the fine or feoffment of the husband of 
 the wife's land shall not operate as a discon- 
 tinuance : and, therefore, as to the wife and 
 those claiming under her, it has considerably 
 lessened the effect of the statute of uses upon 
 remitters. The case of Duncombe v. Wing- 
 field 1 was in substance thus: A. and B. his 
 wife, being seised in fee in right of B., levied 
 a fine with proclamations to the use of them- 
 selves, and the heirs of their two bodies be- 
 gotten, remainder to J. S. for life, remainder 
 to W. in tail, remainder to B. (the wife) in 
 fee ; afterwards A. alone levied another fine 
 with proclamations to the use of himself and 
 wife in special tail as before, remainder to 
 
 f Hob. 255. h Co. Litt. 348. b. 
 
 s Dyer, 54. a. b. Hob. ' Hob. 254. Vide 8 Co. 
 255. Plowd. 111. 71. b. Dyer, 191. b.
 
 208 Of Uses since the [chap. ii. 
 
 sect. vi. himself in tail, remainder to himself and E. 
 of the effect of jyj j n fee g diec i without issue, and then 
 
 the statute ot ' 
 
 mes upon the j± died. Upon this state of the case, three 
 
 Jaws of remitter. * 
 
 material points were settled. The first point 
 was, that where husband and wife are tenants 
 in special tail, and the husband discontinues 
 by fine or feoffment, and takes back an es- 
 tate in special tail to himself and wife, the 
 wife is ipso facto remitted, and of course the 
 husband ; though it is true the husband is so 
 far bound by his own act, that he cannot 
 claim it in his own person. That in Amy 
 Townsend's case the right of the wife was 
 not within the saving of the statute of uses, 
 and of course she was not remitted against 
 the express words of that statute : but that 
 the 32d Hen. 8. had changed the reason of 
 that case; so that now, the use being raised 
 to the wife out of the estate created by the 
 fine, she is not in of an estate discontinued, 
 but of an estate whereupon she might enter 
 after her husband's death ; and that a right 
 of entry was sufficient to support her remitter, 
 without an actual entry. That it was true 
 the fine of the husband alone finally and to- 
 tally barred the issues in tail, and therefore 
 differed from a feoffment at the common law; 
 yet the entail, which is barred as to the issue, 
 remained, notwithstanding the fine, to the 
 wife in right, as to herself, and to all estates 
 and remainders depending upon it, and to 
 all the consequences of benefit to herself, and
 
 chap, ii.] Stat. 27 H. 8. c. 10. 209 
 
 to others by her, as long as she lived, as sect. vr. 
 
 amply and beneficially, as if the fine had not ofihc effect of 
 
 i i t» • tl,e statute of 
 
 been levied. — 2d Point. As the husband and uses upon the 
 
 . laws of remitter 
 
 wire were both remitted to the first estate tail, 
 of consequence J. S. and those in remainder 
 expectant on that tail, were also remitted. 
 But that upon the death of the wife the re- 
 mainders were dislodged, and turned into 
 rights, as they were by the fine, and would 
 have been, if the wife had not been remitted. 
 — As to the third point, it was held, that 
 after the death of the wife the remitter ceas- 
 ed, and the land returned again into the es- 
 tate passed by the second fine ; which estate 
 continued during the life of the husband, 
 and would continue as long as there was 
 issue, if there had been any ; for till then, 
 those in remainder had no title to demand 
 the land : but after the death of the husband 
 and wife without issue, the entry of J. S. was 
 lawful. In this case lord Hobart said, that 
 if after the death of the wife the husband had 
 properly suffered a recovery, he would have 
 barred all the remainders depending upon any 
 of the estates. He also held in another place, 
 in the same argument, that if the wife had 
 survived the husband, and had suffered a re- 
 covery, it would have barred the remainder 
 depending upon the first estate tail; but so 
 long as there was issue living between them, 
 the premises would go according to the estate 
 passed by the second fine. 
 vol. i. p
 
 210 Of Uses since the [chap. ii. 
 
 Sect. vi. It is agreed, that if, in the above case, the 
 Of the effect of h us band had made a feoffment, instead of 
 
 the statute of «/ U/ 
 
 nses upon the levying a fine, it would not have barred, but 
 
 laws of remitter. J ° u 
 
 only have discontinued, the right of the issue k . 
 Therefore, as the wife by her entry would 
 have been remitted, so she would have purged 
 the discontinuance, and restored the right of 
 the issue, by restoring the discontinued estate 
 tail. If too a tenant in tail make a feoffment 
 to the use of himself in fee, or to the use of 
 himself for life, remainder to B. for years, 
 and does not dispose of the reversion; in 
 either case, the issue, it seems, is remitted, 
 though the tenant in tail himself is not 1 . 
 
 Sect. vii. VII. I have before observed, that uses in 
 or declarations their commencement were of a secret nature, 
 
 of uses. 
 
 depending merely upon a parol agreement or 
 declaration between the feoffee and cestuique 
 use. But in process of time it was found 
 necessary to make some certain declaration 
 of the use, indicative of the intention of the 
 parties ; and this declaration of the use must 
 now by the statute 29 Car. 2. c. 3. be in 
 writing™. 
 
 k 1 Lev. 49. 1 Sid. 63. " any lands, tenements, or 
 
 1 1 Roll. Re]). 260. Moor, "hereditaments, shall be 
 
 846.pl. 1143. B.N. C. 215. " manifested and proved by 
 
 8 Co. 72. a. Lane, 93 to 96. "some writing signed by 
 
 m See Holt's Rep. 736. " the party, who is by law 
 
 By the 7th section of the " enabled to declare such 
 
 aboveactitis enacted," that "trust, or by his last will 
 
 " from and after the 24th " in writing, or else they 
 
 " day of June (1677), all "shall be utterly void and 
 
 " declarations or creations « of none effect." 
 " of trusts or confidences of
 
 chap. II.] Stat. 27 H.Q.c.lO. 211 
 
 The conveyances by bargain and sale, s E ct. vn. 
 and covenant to stand seised, are in fact no- of declarations 
 
 of uses. 
 
 thing more than declarations of uses ; for the 
 use being served out of the seisin of the bar- 
 gainorand covenantor in those conveyances, 
 they merely serve to declare the use to the 
 bargainee and covenantee. But upon such 
 conveyances as operate by way of transmuta- 
 tion of possession, the use may be declared 
 by a deed or writing distinct from the con- 
 veyance, by which the possession is trans- 
 ferred. Indeed, upon the conveyances by 
 feoffment and lease and release, it is now 
 universally the practice to declare the use in 
 the same deed immediately after the haben- 
 dum. But in respect to fines and recoveries, 
 the uses are declared either by deed precedent 
 or subsequent to the levying of the former, 
 or suffering the latter. After the statute 27 
 H. 8. c. 10. it became questionable, whether 
 if a recovery were suffered or fine levied, 
 without any previous declaration of the uses, 
 any subsequent deed could direct them ? For 
 it was thought, that upon suffering the re- 
 covery or levying the fine, the use resulted to 
 the recoveree or conuzor, which resulting use 
 the statute immediately executed : so that the 
 use being once vested and executed by the 
 statute, it could not be divested by any sub- 
 sequent declaration. However, in Bowman's 
 p 2
 
 212 Of Uses since the [chap, n 
 
 Sect. vii. case" it was determined, that although the 
 of declarations use resulted to the recoveree or conuzor until 
 the subsequent declaration, yet, when that 
 was made, the use was immediately executed 
 according to the declaration. Soon after the 
 statute 29 Car. 2. c. 3., which directs that all 
 creations and declarations of uses shall be in 
 writing, it again became a doubt, whether 
 resulting uses upon fines and recoveries were 
 not so executed as to exclude any subsequent 
 deed : for it was supposed, that the statute 
 required the use to be declared either previ- 
 ously to, or at the time of, levying such fines 
 and recoveries. Therefore by the statute 4 
 Anne, c. 16. s. 15. declarations of the uses of 
 fines and recoveries manifested by any deed, 
 made by the party, after the levying of such 
 fines or suffering such recoveries, shall be as 
 effectual as if the 29 Car. 2. c. 3. had not 
 been made p . This statute only mentions fines 
 
 i 
 
 n 9 Co. 7. b. 28 Eliz. " said last mentioned act of 
 
 See Bessett's case, Dyer, " parliament (29 Car. 2. c. 
 
 136. a. In Dovvman's case " 3.), the declarations of 
 
 a recovery was suffered in " uses, trusts, or confi- 
 
 Hilary term, 15 Eliz. The " deuces, of any fines or 
 
 original writ was dated the " commou recoveries mani- 
 
 20th Jan. 15 Eliz., returna- " fested by deed made after 
 
 ble the22d Jan. Seisin was " the levying or suffering of 
 
 delivered 4th Feb. (Moor, " such fines or recoveries 
 
 191.) The deed declaring " are good and effectual in 
 
 the uses of the recovery was " law ; it is hereby declared, 
 
 dated the 1st Feb. 15 Eliz. "that all declarations or 
 
 "See Gilb. Uses, 62. u creation of uses, trusts, or 
 
 p " And whereas it hath " confidences of any fines, 
 
 "been doubted, whether "or common recoveries of 
 
 " since the making of the " any lands, tenements, or
 
 chap, ii.] Stat. 27 H. 8. c. 10. 213 
 
 and recoveries ; and therefore the same doubt, Sect - vn - 
 if it was well founded, still remains as to the °/ declarations 
 
 7 of uses. 
 
 conveyance of a feoffment. 
 
 I shall now consider, First, who may de- 
 clare uses — Secondly, In what cases one de- 
 claration of the use shall be controlled or an- 
 nulled by a subsequent declaration — Thirdly, 
 Where the same instrument contains two 
 contradictory declarations — Fourthly, The 
 general construction upon, and effect of, the 
 declaration of uses. 
 
 First. Who may declare or limit the use. who may de- 
 clare uses. 
 
 The king may declare uses upon hisletters The king. 
 patent, though indeed the patent of itself im- 
 plies a use q . But if the king grant lands to 
 J. S. and his heirs by his letters patent, to 
 the use of J. S. for life ; here J. S. has only 
 an estate for life, and the king has the in- 
 heritance without any office found : for im- 
 plication out of matter of record ever 
 
 lt hereditaments manifested " are and shall be good and 
 
 "and proved, or which " effectual in the law, as if 
 
 " hereafter shall be inani- " the said last mentioned 
 
 " fested and proved by any " act had not been made." 
 
 " deed already made, or See Bushell v. Burland, 
 
 " hereafter to be made, by Holt's Rep. 733. where the 
 
 " the party who is by law declaration of uses was four 
 
 ?• enabled to declare such years after the fine had been 
 
 " uses or trusts, after the levied. 
 " levying or suffering of any q Bac. Uses, 66. 
 
 " such fines or recoveries, 
 
 p3
 
 214 Of Uses since the [chap. ii. 
 
 Sect. vii. amounts to matter of record. The queen 
 
 of declarations may also declare uses r . 
 
 of uses. 
 
 The queen. . . . 
 
 An idiot, or person of non-sane memory, 
 idiots. may declare uses upon a fine or recovery ; 
 
 which declaration of uses will continue valid 
 as long as the conveyance, upon which the 
 uses are declared, remains of force 5 . It is 
 infants. the same with respect to an infant. There- 
 
 fore if an infant levy a fine, or suffer a reco- 
 very, and limit the use thereupon, he can- 
 not avoid the declaration of the use, with- 
 out avoiding also the fine or recovery*: for 
 as the matter of record stands, the law sup- 
 poses, that the conuzor or recoveree was of 
 full age ; and the deed to declare the uses, 
 being part of the fine or recovery, shall stand 
 likewise. But a covenant by an infant in 
 consideration of marriage or blood to stand 
 seised to an use, is void u . 
 
 In a case, where A. tenant for life, and B. 
 his eldest son, an infant, tenant in tail in re- 
 mainder, entered into marriage-articles, by 
 which A. alone covenanted within a year 
 after his son should come of age, that he and 
 
 r Bac. Uses, GG. Vin. 305. pi. 3. and note 
 
 9 Mansfield's case, 12 Co. (M. a.) 
 124. Lewing's case, cited • Bac. Uses, 67. 2 Co. 
 
 10 Co. 42. b. But see 4 58. a. 10 Co. 42. b. 3 Atk. 
 
 Leon. 89. and sir Butler 710. Moor, 22. pi. 73. 13 
 
 Wentvvorth's case, cited 2 Vin. 304. pi. 1. 
 Ves. 403. 3 Atk. 313. 13 ■ Bac. Uses, G7.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 215 
 
 his sou would by fine or recovery convey sect.vii. 
 the settled estate to certain uses; and both Of declarations 
 A. and B. sealed the deed, and within the 
 time specified joined in a fine and recovery, 
 it was determined, that the mere consent of 
 B., by his sealing the deed, was not a suf- 
 ficient declaration by him of the use of the 
 fine and recovery\ But in Slocombe v. 
 Glubb w , where, upon the marriage of a male 
 infant and an adult female, the intended wife 
 conveyed her real estate to certain uses, and 
 both the intended husband and wife enter 
 into a covenant within one month after the 
 infant arrived at the age of twenty-one years 
 to suffer a recovery of the infant's estate to 
 the uses declared of the wife's estate : the 
 question arose upon a bill by the trustees to 
 have a specific performance of the infant's 
 covenant, whether he was bound? Lord 
 Thurlow said, that it was not necessary to 
 determine how far the infant husband could 
 be bound by his own contract : for the wife 
 being adult, had also entered into the cove- 
 nant ; and the husband must answer her con- 
 tract 3 . 
 
 v Nightingale v. Ferrers, Ashley, 3 Atk. 607. Durn- 
 
 3 P. W. 207. ford v. Lane, 1 Bro. Cha. 
 
 w 2 Bro. Cha. Ca. 545. Ca. 106. Caruthers v. Cam- 
 
 1 Ves. J. 28. thers, 4 Bro. Cha. Ca. 500. 
 a How far the real estates Clough v. Clough, 3 Wood- 
 
 of female infants can he ison, 453. note. 5 Ves. 
 hound by marriage-con- 710. and in Miluer v. Hare- 
 tracts, see Cannel v. Buckle, wood, 18 Ves. 275, 276. 
 
 2 P. W, 243. Harvey v. 
 
 P 4
 
 216 Of Uses since the [chap. ii. 
 
 sect. vii. It seems, that a feme covert cannot, with- 
 
 of declarations ou t (\ ie consent of her baron, create or limit 
 
 of uses. ' 
 
 Baron and the use of her lands' 5 . But if baron and feme 
 levy a fine, or suffer a recovery, of lands, of 
 which they are seised in right of the feme, 
 though they ought regularly to join in the 
 declaration of the uses of such fine or reco- 
 very, yet if the husband in such case alone 
 declare the uses, his declaration will bind the 
 feme (although an infant ), if she do not dis- 
 sent to it d , for as she joined with her hus- 
 band in the fine or recovery, the presumption 
 is, if the contrary cannot appear, that she 
 agreed with him in the declaration of the 
 uses. Indeed, if she acquiesce for any length 
 of time after her husband's death in the de- 
 claration of uses made by him, she cannot 
 afterwards invalidate the fine or recovery 6 . 
 As the conveyances by feoffment and lease 
 and release do not bind the feme, although 
 she be a party, any declaration by her and 
 her husband of the uses, raised upon those 
 conveyances, shall be void as to her f . But 
 if husband and wife bargain and sell lands 
 for money, and afterwards levy a fine to the 
 bargainee, the bargain and sale is considered 
 
 b See Johnson v. Cotton, Moor, 22. pi. 73. Lusher v. 
 
 Skin. 275. And 164. pi. 209. Banbong, Dy. 290. a. See 
 
 in case of Colgate v. BIythe. the cases collected in note 
 
 c 2 Roll. Ab. 798. 22 Vin. to pi. 1. 22 Vin. 232. T. 
 232. pi. 2. e Swanton v. Raven, 3 
 
 d Beckwith's case, 2 Co. Atk. 105. 
 57. a. Moor, 197. Anon. f Gilb. Uses, 244.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 217 
 
 merely as the declaration of the use of the Sect.vii. 
 fine, and as such will bind the wife". if Of declarations 
 
 7 of uses. 
 
 in declaring the uses of a fine levied, or re- 
 covery suffered, of lands, held in right of the 
 wife, the husband and wife make separate 
 declarations of the uses, neither of them can 
 stand, and then it will be the same, as if no 
 declaration were made ; in which case the 
 use will result, and return to its former 
 course, viz. to the feme and her heirs' 1 . But 
 with respect to baron and feme, we must dis- 
 tinguish between a limitation of the use of 
 part of the estate in the land, and the limit- 
 ation of the use of part of the land itself. 
 This distinction was taken in Beckwith's 
 case 1 . Thus, if husband and wife differ in 
 the limitation of the particular use, but con- 
 cur in the limitation of the uses in remainder, 
 yet the whole of the uses are void. But if 
 they agree in limiting the use of part of the 
 land itself, and vary in the declaration of the 
 use of the residue, the declaration shall be 
 good for the part they agree in, and void for 
 the remainder. 
 
 Where a husband seised of the fee-simple 
 of an estate, to which the dower of his wife 
 
 « 2 Co. 57. a. Moor, 22. j 2 Co. 56. b. 58. a. 22 
 
 pi. 73. See the cases in Vin. 233.pl. G, 7. and notes 
 note to p!. 4. 22 Vin. 232. in the margin. 
 
 h Moor, 197. pi. 347. See 
 note to pi. 6. 22 Vin. 233.
 
 218 Of Uses since the [chap. ii. 
 
 sect. vii. attaches, conveys to a purchaser, and enters 
 of declarations m t a covenant, that he and his wife will in a 
 
 of uses. 
 
 subsequent term levy a fine to the purchaser, 
 it is not absolutely necessary, that the wife 
 should join in the declaration of the uses of 
 the fine k ; for in this case the fine operates, 
 so far as concerns the wife, as an extinguish- 
 ment of her right to dower ; and there can be 
 no resulting use upon a conveyance operating 
 as the release of a right 1 , and not as the 
 transfer of an estate. 
 
 Tenant for life, So if tenant for life and remainder-man 
 
 and remainder- 
 man, levy a fine, or suffer a recovery, and the te- 
 nant for life alone declare the uses, this de- 
 claration shall not affect the remainder-man" 1 . 
 And it should seem, that if the remainder- 
 man seal, and be a party to, the deed, in 
 which the tenant for life alone covenants to 
 suffer a recovery, &c. to certain uses, this 
 does not bind the remainder-man, though 
 he afterwards should join in suffering the re- 
 joint-tenants. covery, &c. n Joint-tenants may each declare 
 different uses of their respective shares . 
 
 k See Haverington's case, 
 Owen, 6. 2. Bac. Ab. 140. 
 and Eare v. Snow, Plowd. 
 514. 
 
 1 13 Co. 55. Note to pi. 
 1. 22 Vin. 209. (O. 3.) 
 
 m See Roe v. Popham, 
 Dougl. 25. Argol v. Cheney, 
 22 Vin. (T. 6.) 236. pi. 1. 
 and note in the margin. 
 
 n Per Master of the Rolls 
 in Nightingale v. Ferrers, 3 
 P. W. 206. But note, in 
 that case the person in re- 
 mainder was an infant; 
 therefore qucere. 
 
 2 Co. 58. a. 22 Vin. 236. 
 pi. 1.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 219 
 
 Secondly. In what cases a previous limit- sect.vii. 
 ation of the use shall be controlled by a °/^; s daration8 
 subsequent declaration by a distinct instru- in what cases 
 
 the first declara- 
 Uient. tion shall be 
 
 controlled by 
 the subsequent. 
 
 I have before had occasion to remark, 
 that in a conveyance by deed, transferring 
 the seisin to a grantee, such as a feoffment or 
 lease and release, the use is declared by the 
 conveyance ; and it scarcely ever occurs in 
 practice, that the use is, in that case, declar- 
 ed by an instrument, distinct from the deed 
 conveying the seisin. Where the conveyance 
 is by bargain and sale 3 or covenant to stand 
 seised to uses, the conveyance itself is the 
 declaration of the use. 
 
 But when the assurance, transferring the 
 seisin to serve the uses, is by fine or recovery, 
 the uses are limited by deed executed either 
 before, or after, the levying the fine, or suf- 
 fering the recovery. If before, the deed is 
 said to lead, and, if after, to declare the 
 uses of the fine or recovery. It has happen- 
 ed, in the case of fines and recoveries, that 
 there have been contradictory limitations of 
 the uses : and from this circumstance seve- 
 ral intricate and perplexing points have 
 arisen. 
 
 If there be a deed leading the uses of a 
 fine or recovery, those uses may be altered,
 
 220 Of Uses since the [chap. ii. 
 
 sect. vii. varied, or absolutely revoked previously to 
 Of declarations the levying the fine or suffering the recovery. 
 
 of uses. •/.,,. 
 
 When the fane or recovery is conformable in 
 time, persons, and other circumstances, with 
 the deed leading to the uses of it, then the va- 
 riation, alteration, or revocation of the uses 
 may be effected ; 
 
 First, By a deed or other instrument of as 
 high nature, as the preceding deed or instru- 
 ment ; for, nihil tarn conveniens est natnrali 
 cequitati, unumquodque dissolvi eo ligamine, 
 quo ligatum est: but in this case a deed lead- 
 ing the uses of a fine or recovery cannot be 
 varied by a mere writing without seal 1 '. 
 
 Secondly, By the mutual consent of all 
 parties concerned in interest. 
 
 The author of the Touchstone (519.) has 
 adopted the rule, " When the agreement for 
 " the limitation of uses is precedent, whether 
 " it be by writing or word (it must be now in 
 " writing by the statute of frauds), it is but 
 " directory, and doth not bind the estate, un- 
 " til the same assurance be afterwards had ; 
 " and therefore by anew agreement, or decla- 
 " ration made, in the same manner as the 
 " former, that is to say, in writing, if the 
 " former be so, and between the same parties, 
 
 v Countess of Rutland's case, 5 Co. 26. a.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 221 
 
 " either before or at the time of the same as- Sect. vii. 
 "surance passed, new uses may be made, or declarations 
 
 of uses. 
 
 " and the former uses changed.' 
 
 By q a deed dated on the 21st of August 
 1661, Philip Stapilton was tenant for 99 
 years, if he should so long live, remainder to 
 trustees to preserve contingent remainders, 
 remainder to his first and other sons in tail 
 male, remainder to his right heirs. 
 
 Philip having two sons, Henry and Phi- 
 lip, they by deeds of lease and release, dated 
 the 9th and 10th of Sept. 1724, release and 
 confirm to Thompson and Fairfax all those 
 manors, &c. to hold to them, their heirs and 
 assigns, to the use (as to part) of Philip the 
 father, his heirs and assigns for ever, and as 
 to another part, to the use of Philip the fa- 
 ther for life, remainder to Henry the son for 
 life, remainder to two trustees to preserve 
 contingent remainders, remainder to his first 
 and every other son in tail male, remainder 
 to Philip the son for life, remainder to trus- 
 tees to preserve contingent remainders, re- 
 mainder to his first and other sons in tail 
 male, remainder to the daughters of Henry 
 in tail, remainder to the daughters of Philip 
 the son in tail, remainder to the right heirs of 
 Philip the father; and as to the remaining 
 
 «" 1 Atk. 2. Stapilton v. Stapilton.
 
 222 Of Uses since the [chap. ii. 
 
 sect. vii. part, to the use of Philip the father for life, 
 Of declarations vvith the like limitations in the first place to 
 
 of uses. 
 
 Philip the son and his issue, and then to 
 Henry and his issue, remainder in fee to the 
 father. 
 
 There were covenants to suffer a recovery 
 within twelve months, and likewise for fur- 
 ther assurances. To this deed the heir at law 
 of the surviving trustee in the deed of 166 J, 
 was not a party. 
 
 But by deeds of lease and release, dated 
 the 28th and 29th of Sept. 1724, to which 
 the heir of the surviving trustee of the deed 
 of 1661, was a party, the father and two 
 sons made Thompson and Fairfax tenants to 
 the praecipe, in order to suffer a recovery for 
 the purposes mentioned in the former deeds 
 of the 9th and 10th of Sept. 
 
 Before any recovery suffered, Henry died, 
 leaving issue the plaintiff. 
 
 Afterwards by lease and release, dated the 
 12th and 13th of April 1725 (to which the 
 heir of the surviving trustee of the deed of 
 1661, was a party), Philip the father, and 
 Philip the son, covenant to suffer a recovery, 
 in which Thompson and Fairfax were to be 
 tenants to the praecipe, to the use, as to part, 
 of Philip the father, his heirs and assigns ;
 
 chap, ill] Stat. 27 H. 8. c. 10. 223 
 
 and as to the other part to the use of Philip sect. vn. 
 the father for life, remainder to Philip the son °/ declarations 
 
 * r of uses. 
 
 in fee. 
 
 In Trinity Term, 1725, a recovery was 
 suffered, in which were the same tenants to 
 the praecipe, the same demandant, and the 
 same vouchees (except Henry who was dead), 
 as were covenanted to be by the first deed ; it 
 was likewise suffered within twelve months 
 after the first deed. 
 
 Lord Hard wicke stated the first question 
 to be, whether the lease and release of the 9th 
 and 10th of Sept. 1724, would amount to a 
 good declaration of the uses of the recovery, 
 notwithstanding the subsequent deed of April 
 1725. 
 
 His Lordship observed, that as uses must 
 arise out of the agreement of the parties, the 
 parties may change the uses ; but that must 
 be done by the mutual consent of all the 
 parties concerned in interest. " But in the 
 " present case, the second agreement not 
 " being between all the parties concerned in 
 " interest, ought not to control the first de- 
 " claration ; and especially as this recovery 
 " was suffered within the time prescribed by 
 " the first deed, and between the same de- 
 "mandant and tenant. The consideration 
 " for suffering the recovery was good, both
 
 224 
 
 Of Uses since the 
 
 [chap. II. 
 
 Sect. VII. 
 
 Of declarations 
 of uses. 
 
 " in law and equity ; and there is no case to 
 " warrant me to say, the first agreement is 
 " not good and binding, or that the tenant 
 " in tail could by his own agreement after- 
 " wards change the uses 3 ." 
 
 His Lordship added, that if it was doubt- 
 ful, whether the recovery suffered in 1725, 
 should enure to the uses declared by the deed 
 of 1724, he was of opinion, the recovery 
 would operate to make good those estates 
 which passed by the deed of 1724 r . 
 
 1 Bingham v. Hussey, 12 
 Car. 2. 1 Cha. Rep. 192. 
 ed. 1715. " Thomas Hus- 
 '* sey settles by deed, 22 
 " Car. 1. on Delaline Hus- 
 " sey his son, in considera- 
 " tion of 6000/. portion with 
 " the wife of Delaline, and 
 " covenanted to levy a fine; 
 " and afterwards in 1655, 
 " the defendant procured 
 " him to make another set- 
 " tlement contrary to the 
 " former, and left out the 
 " limitation to the heirs 
 " male, and levied a fine 
 " thereof. This court upon 
 ** the proofs of the first 
 " agreement, decreed the 
 " latter deed and fine to be 
 " void and set aside, and the 
 " premises to be enjoyed 
 " according to the first 
 " deed, as if a fine had been 
 " levied." 
 
 r This is upon the prin- 
 ciple of Cheney v. Hall, 
 Amb. 526. (1765), Moody 
 v. Moody, ibid. 649. (1767), 
 and Goodright v. Mead, 3 
 Burr. 1703. 
 
 Cheney v. Hall. 
 
 1706. Conveyance by G.W. 
 
 the father, 
 
 To the use of himself 
 for life, with re- 
 mainder as to part, 
 
 To the use of his wife 
 for life, remainder 
 as to the whole, 
 
 To the use of the first 
 and other sons of 
 the marriage. 
 1733. Conveyance by lease 
 and release upon 
 the marriage of G. 
 W. the eldest son 
 of the marriage. 
 
 To the use of himself 
 for life, 
 
 To the use of his 
 intended wife for 
 life, 
 
 To the use of the 
 heirs of the body of 
 the wife, 
 
 His own right heirs. 
 1746. G.W. the father, and 
 
 son, suffer a recovery 
 
 and declare the use, 
 
 To a mortgagee in fee, 
 
 And subject thereto, 
 The
 
 chap, ii,] Stat. 27 H. 8. c. 10. 
 
 225 
 
 But when there is a deed leading the uses sect. vii. 
 of a fine or recovery to be subsequently levied or declaration* 
 or suffered, and the fine or recovery varies 
 from the preceding deed in time, persons, or 
 other circumstance, then the uses of the first 
 deed may, previously to the fine or recovery, 
 be varied by another instrument, although 
 such subsequent instrument be not a deed, 
 but merely a writing without seal 5 ; and 
 
 The father for life, 
 Sou in fee. 
 Lord Northington 
 thought, that the 
 common recovery 
 enured to the uses 
 of the settlement 
 1733. 
 Moody v. Moody. 
 E. M. tenant in tail in the 
 year 1709 conveys 
 To the use of himself 
 and intended wife 
 for their lives, 
 Heirs of their bodies, 
 Himself in fee. 
 Covenant to do further 
 acts by fine or recovery. — 
 Recovery afterwards suf- 
 fered by E. M. 
 
 Lord Camden held, that 
 the recovery barred the en- 
 tail, of which he (E. M.) 
 was seised before the set- 
 tlement, and operated as a 
 confirmation of the settle- 
 ment. 
 Goodnight dem. Tyrrel v. 
 
 Mead. 
 J. S. tenant in tail with the 
 immediate reversion, 
 24th, 25th Oct. 1742, 
 in consideration of an 
 intended marriage, 
 conveys to trustees, 
 VOL. I. C 
 
 To the use of himself 
 for life, with re- 
 mainders over. 
 1761. Recovery by J. S. to 
 the use of L. in fee, 
 in trust to sell, and 
 pay debts, &c 
 1763. Conveyance by L. 
 the trustee to the use 
 of a purchaser in fee. 
 The court unanimously 
 of opinion, that the reco- 
 very enured to the uses of 
 the settlement. 
 
 6 Jones v. Morley, 2 Salk. 
 677. 9 Will. 3. The ab- 
 stract of this case is thus ; — 
 29 Jan. 1665. (Hilary Term). 
 Deed of covenant to 
 levy a fine in the then 
 next Hilary Term 
 (1666). 
 31 Jan. 1665. 
 
 Agreement, not being 
 
 a deed, between the 
 
 same parties, that the 
 
 uses of the deed of 
 
 the 29th Jan. 1665, 
 
 should be revoked. 
 
 The fine was levied in 
 
 Hilary Term, 1665, and 
 
 not in Hilary Term, 1666 ; 
 
 and consequently there was 
 
 a variance. — The first deed 
 
 was revoked.
 
 226* 
 
 Sect. VII. 
 
 Of declarations 
 
 of uses. 
 
 Of Uses since the [chap. ii. 
 
 although all the persons interested under the 
 first declaration are not parties to the second 1 : 
 and indeed the uses of the first deed may, 
 after levying the fine or suffering the reco- 
 very, be varied" ; but in this case, if the 
 doubt suggested by the statute 4 Anne, c. 16. 
 s. 15. be sufficiently grounded*, the subse- 
 quent variation of the uses must be by deed, 
 and not merely by writing without seal. 
 
 When the fine or recovery does not vary 
 in circumstances from the deed leading the 
 
 4 Countess of Rutland's 
 case, 5 Co. 25. b. 2Jac. 1. 
 The abstract of this case 
 is as follows : 
 10 March, 21 Car. 
 
 Voluntary settlement 
 after marriage be- 
 tween, 
 
 1. Edward earl of 
 Rutland, 
 
 2. Sir Gilbert Ger- 
 rard, and Thomas 
 Holecroft, 
 
 by which the earl co- 
 venants, before the 
 end of Trinity Term 
 then next, by fine, or 
 other conveyance, to 
 assure the manor, &c. 
 To the use of, 
 The earl and the 
 countess his wife 
 for their lives, 
 The heirs of the earl. 
 29th March, 21 Car. 
 
 Voluntary deed be- 
 tween, 
 
 1. Edward earl of 
 Rutland, 
 
 2. LordBurghley, sir 
 Gilbert Gerrard, 
 and others, 
 by which the earl co- 
 venants to convey the 
 same manor before 
 the feast of the An- 
 nunciation then next, 
 To the use of 
 The earl in tail male, 
 remainders over. 
 No fine levied in Trinity 
 Term. 
 
 17 Sept. following. A fine 
 was levied by the earl 
 to sir Gilbert Ger- 
 rard, and Thomas 
 Holecroft ; 
 at the same time, the 
 earl levied another 
 fine to Lord Burghley 
 and the parties to the 
 second deed. 
 The uses of the first deed 
 revoked. 
 
 u Jones v. Morley, supra. 
 Shep. T. 520. 
 
 w See Mr. Sugden's note, 
 Gilb. Uses, ill.
 
 chap, li.] Stat. 27 H. 8. c. 10. 227 
 
 uses of it, the use is executed and fixed upon s KC t. vii. 
 the levying the fine, or suffering the recovery : or declarations 
 
 i .,..,.. °f uses. 
 
 and no subsequent declaration is admitted to 
 control the operation of the previous deed 
 or instrument". 
 
 Although the fine or recovery does not 
 altogether correspond in circumstances with 
 the deed or instrument leading the uses of it, 
 if there be no subsequent declaration of the 
 uses, the fine or recovery shall still enure to 
 the uses of the leading deed or instruments 
 
 If there be no preceding limitation of the 
 use, the uses of the fine or recovery may be 
 subsequently declared according to the sta- 
 tute of 4 Ann. c. 16. s. 15. by deed; but it is 
 by no means certain, that such subsequent 
 declaration may not be controlled by another 
 averment by deed, although there be no vari- 
 ance in the fine or recovery 2 . 
 
 The author of the Touchstone has ob- 
 served (519.), " that if the declaration be 
 " subsequent, if in the interim between the 
 " assurance had, and the declaration of the 
 
 * Shep. T. 520. Salk. 13 Vin. 30G. pi. 2. P. a. 2. 
 
 676. Tregame v. Fletcher, and the cases collected in 
 
 9 Co. 10. b. 11. a. Comb, the note. 
 429. 1 Atk. 9. x Second resolution in 
 
 » Shep. T. 520. 2 Co. Tregame v. Fletcher, 2 Salk. 
 
 76. a. Havergill v. Hare, 676. Shep. Touch. 521. 
 
 2 Roll. Ab. 709. lAtk.7. Vavisor's case, Dyer, 307. b. 
 
 Q2
 
 of uses. 
 
 *228 Of Uses since the [chap. ii. 
 
 Sect. vii. << uses, the conuzor or recoveree sell, give or 
 lons " charge the lands to others, this subsequent 
 " declaration will not subvert the mean estate, 
 " charge, or interest." 
 
 when there are Thirdly. It sometimes happens, that in 
 
 contradictory J l l 
 
 declarations in the game instrument there are two declara- 
 ble same instru- 
 ment, tions of the use, differing from each other. 
 
 The rule is, that the first declaration shall 
 prevail; and that the second shall be void a . 
 When the use is limited by the habendum of 
 a deed, and there is in the subsequent part of 
 the instrument a covenant to levy a fine of 
 the same land to different uses, if the fine be 
 levied after the seisin, out of which the uses 
 are to arise, is transferred to the grantee, 
 there is no ground to contend, that the use 
 limited after the habendum can be controlled 
 by the declaration of the use of the fine; for 
 the deed, transferring the seisin, from which 
 the use is to arise, is perfected upon the de- 
 livery of the deed by the operation of the 
 statute of uses; and the subsequent fine, not 
 operating by way of transmutation of posses- 
 sion, but as a confirmation, or extinguishment 
 of right, there is no seisin to serve the use 
 limited upon it. It is a more difficult case, 
 
 a Southcoat v. Manory, v. Bigg, 2Taun. 109. The 
 
 Cro. Eliz. 744. J. C. Moor, first words in a deed, and 
 
 680. by the name of Wil- the last in a will, shall pre- 
 
 inot v. Knowles. See the vail. Shep. T. 88. Co. 
 
 case of Doe dcm. Leicester Litt. 112.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 229 
 
 where the fine is levied of a term preceding s EC r. vie 
 the execution of the deed ; but even in this Of declarations 
 
 of uses. 
 
 case, it should seem, that the fine would be 
 considered merely as a further assurance, not 
 disturbing, but by way of confirmation of, 
 the first limitation of the use b . The latter 
 point, however, is extremely doubtful. 
 
 Fourthly. The general construction upon, The construc- 
 tion upon, ai ' 
 effect of, th 
 declaration. 
 
 and effect of, the declaration of uses. effect o°£'the 
 
 (1.) A very slight expression is sufficient No formal 
 
 words are ne- 
 
 to declare the uses of a fine or recovery ; no cessary. 
 formal set of words being required for that 
 purpose. Therefore, whenever the intention 
 of the parties can be collected in the limita- 
 tion of the uses of a fine or recovery upon 
 any expression in a precedent or subsequent 
 declaration or conveyance, such declaration 
 or expression is sufficient to declare the uses 
 of the fine or recovery : and the uses may 
 be declared by deed indented, or by deed 
 poll. 
 
 C2.) " The declaration of the uses must be Must be certain 
 
 x J as to the per- 
 
 " certain, and that especially in three things ; sons, place, and 
 
 estate. 
 
 b See Southcoat v. Ma- ance (Hob. 275. 13 Vin. 
 
 nory, cited above ; and see 305. O. a. pi. 2.), or a con- 
 
 22 Vin. 227. pi. (9.) 8. Oli- dition of re-entry (13 Vin. 
 
 verv.Gyles, Cro. Eliz. 300. 309. T. a. pi. 1.), may 
 
 c See 3 P.W. 208. 1 Lord amount to a declaration of 
 
 Ray. 290. 12 Mod. 162. A the use. 
 covenant for further assur- 
 
 Q 3
 
 230 Of Uses since the [chap. ii. 
 
 Sect. vii. << j n the persons to whom, in the lands, &c. 
 of declarations « f which, and in the estates by which, the 
 
 of uses. 
 
 " uses are declared ; and if there want cer- 
 " tainty in either of these, the declaration is 
 " not good : and it must be complete in itself 
 " without any reference to indentures or 
 " other writings to be made afterwards, for 
 " then it is but an imperfect communication, 
 " and no complete declaration 1 ." 
 
 No considera- (3.) It is not necessary, that there should 
 
 tion necessary. . . , . , . . , 
 
 be a consideration expressed in a deed to 
 lead or declare the uses of a fine or reco- 
 very k . 
 
 whether it (4.) It has been before observed, that if a 
 
 breaks the de- 
 scent, when it man, seised on the part of his mother, had 
 
 declares the use , 
 
 totherecove- made a feoffment without any consideration 
 
 ree, or conuzor . . , , i i i 
 
 in fee. or declaration, and the use had thereupon re- 
 
 sulted to him in fee, or if he had expressly 
 declared the use to himself and his heirs ; in 
 either case the descent would not have been 
 broken, but the lands would have descended 
 to the heirs on the part of the mother 1 . So 
 if tenant in tail, who takes by descent from 
 his maternal ancestor, suffer a recovery, and 
 declare the use to himself in fee, the descent 
 is not broken, and the newly-acquired fee 
 
 1 Shep. Touch. 519. Gth 
 ed. 
 
 k See Har. Co. Litt. 123. 
 a. note 8. 1 Ld. Ra\ m. 290. 
 
 1 See ante, 62. 22 Vin. 
 185. pi. 4, 5. notes.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 231 
 
 will descend to the heirs ex parte maternd m . Sect. vn. 
 But here a distinction is taken— if a tenant in Of declarations 
 
 7 of uses. 
 
 tail take by purchase under a settlement, made 
 by his ancestor ex parte maternd, and suffer a 
 recovery with a declaration of the use to 
 himself in fee, the estate in fee will descend 
 to his heirs ex parte paternd a . But it should 
 seem, that in this case, if the reversion in fee 
 ex parte maternd had been in the tenant in 
 tail, a fine by him would have had a different 
 operation, for it is the nature of a fine to let 
 in the reversion . 
 
 VIII. Upon the construction of the sta- Sect. viii. 
 tute, four necessary points are to be observed of uses which 
 
 , are not exe- 
 
 for the execution of an use p : — 1st; a person cuted by the sta- 
 seised to the use ; 2dly ; a cestuique use in 
 esse; 3dly ; a use in esse, scil. in possession, 
 reversion, or remainder ; 4thly ; an estate or 
 seisin, out of which the use is to arise ; for 
 the words of the statute are, that the es- 
 tate of such person seised to the use shall be 
 adjudged in cestuique use, &c. It follows, 
 that if the above requisites do not concur, 
 there can be no execution of the use :— - 
 and, therefore, that contingent uses, during 
 the suspense of the contingency, cannot be 
 executed by the statute b . 
 
 m Roe dem. Crow v. ° See 5 Term Rep. 108, 
 
 Baldwere, 5 Term, 104. 109. 
 
 * Martin v.Strachan, note p 1 Co. 126. a. 
 
 (a), 5 Term Rep. 107. b Bac. Uses, 45. 
 
 Q 4
 
 232 Of Uses since the [chap. ii. 
 
 Sect. viii. The doctrine of contingent uses is explain- 
 
 or uses which ed in the two cases of Dillon v. Friene (of 
 cSedbythesia-Chudleigh's case) and Wegg v. Villers. 
 
 tute. 
 
 lit, ^ ontmgent Chudleigh's case c was in effect thus: A. 
 enfeoffed B. C. D. and their heirs to the use 
 of himself and his heirs on the body of Mary 
 (then the wife of sir T. C.) lawfully begot- 
 ten, and in default of such issue, to the use 
 of his heirs on the body of Elizabeth (then 
 the wife of R. B.) lawfully begotten ; and 
 in default of such issue, to the use and per- 
 formance of his will for ten years immedi- 
 ately after his death, and after the said term 
 ended, to the use of the said feoffees and 
 their heirs during the life of C. C. his son, 
 and after his death to the use of the first 
 
 issue male of the said C. C. lawfully to be 
 
 ... 
 
 begotten, and to the heirs of the body of 
 such first issue male lawfully begotten, and 
 in default of such issue, to the use of the se- 
 cond issue male, &c. in like manner ; and so 
 on to the tenth issue, with several remain- 
 ders over, and with the reversion in fee to 
 the said A. Afterwards A. died without 
 issue by either of the women ; and the 
 feoffees before the birth of the first son of 
 C. C. enfeoffed the said C. C. to the use of 
 himself in fee, without any consideration, 
 but with notice of the former uses. The 
 
 f 1 Co. 1-20. a,
 
 chap, ii.] Slat. 27 H. 8. c. 10. 233 
 
 first son of C. C. was afterwards bom; and sect.viii. 
 the question was, whether the feoffment de- 0f uses which 
 
 a ?irc not cxC" 
 
 stroyed the use in remainder so limited to cutedb y thesta - 
 the first son of C. C? which question de- 
 pended upon another, viz. whether before 
 the contingency happened, i. e. the birth of 
 the son, the use vested, and was executed in 
 the son? It was determined by the majority 
 of the judges, that the use before the con- 
 tingency was not executed in the son ; and 
 that the feoffment entirely destroyed, and 
 prevented the execution of the uses in con- 
 tingency, although made without any consi- 
 deration and with notice. 
 
 By the arguments of the judges in this 
 case, it seems to have been the better opi- 
 nion, that upon the feoffment of A. all the 
 uses in esse were immediately executed, and 
 that there was no present actual seisin left in 
 the feoffees, nor were the contingent uses ex- 
 ecuted : that though there was no actual sei- 
 sin left in the feoffees after the first feoffment, 
 yet ^possibility of seisin remained in them to 
 serve the contingent uses, when they should 
 arise, or come in esse : that this possibility of 
 seisin, if it had not been disturbed, would 
 have enabled the uses, when they came in 
 esse, to have been executed by the statute ; 
 but as at the time the uses came in esse in the 
 principal case, the possibility of seisin was
 
 234 Of Uses since the [chap. n. 
 
 Sect. viii. destroyed, that there consequently could be 
 of uses which no seisin left to serve such uses. 
 
 are not exe- 
 cuted by the sta- 
 
 In the debate upon the case of Wegg v. 
 Villers, reported by Roll and mentioned here- 
 after, it was agreed, that if a feoffment be 
 made to the use of A. for life, remainder to 
 C. for life, remainder to the first son of C. 
 in tail, with divers contingent uses in re- 
 mainder, with the remainder to the right 
 heirs of A.; in this case the feoffment of A. 
 will not destroy the contingent uses, because 
 though the remainder to C. was divested, yet 
 he had a right to enter for the forfeiture, 
 which right of entry would support the con- 
 tingent uses : that if C. had made his entry 
 either in A.'s lifetime, or after his death, that 
 would have reduced the contingent uses ; so 
 that if a son had been born in his lifetime, 
 the use to such son would have been executed 
 by the statute without any entry by the first 
 feoffees; that if C. had died leaving a son, 
 and without having made his entry, the first 
 feoffees might have entered, and thereby re- 
 stored their seisin (scintilla juris) to serve the 
 use to the son of C. 
 
 In the first edition of this work, the fol- 
 lowing case was stated. If there be a feoff- 
 ment to the use of A. for life, remainder to 
 his first son, &c. remainder over, if A., be- 
 fore the birth of a son, make a feoffment,
 
 chap, ii.] Stat. 27 H. 8. c. 10. 235 
 
 this shall divest all the estates, but still there sect.viii. 
 is a right of entry in the feoffees to restore the of uses which 
 former estate, and upon their entry they have cutedbytbTsta- 
 a seisin sufficient to serve the use to such 
 first son. But the case thus put, as to the 
 right of entry in the feoffees, and the opera- 
 tion of it, does not appear to be correct. For 
 supposing the scintilla juris remaining in the 
 feoffees could enable them to enter to revest 
 the estates divested (which it will do in par- 
 ticular cases, as in the case previously men- 
 tioned from Roll), yet in the case here stated 
 their entry could serve no purpose whatso- 
 ever. For there being no son born at the 
 time of the entry, the use to such son could 
 never be executed : according to the rule, 
 that a contingent remainder must take effect 
 (if at all) eo instante, that the particular es- 
 tate determines. If indeed, as in the case 
 from Roll, a vested estate had supported the 
 contingent remainder, till it came in esse, and 
 then the intervening tenant of the vested 
 estate for life had died, without having made 
 an entry, the entry of the feoffees would 
 have supported the contingent remainder, 
 which came in esse during the existence of 
 the intervening estate. But that is different 
 from the present case. In the case from Roll 
 the vested estate supported the contingent re- 
 mainder during its contingency, and the sub- 
 sequent entry of the feoffees restored the sei- 
 sin to serve the use, which then was in esse.
 
 236 Of Uses since the [chap, ir. 
 
 Sect. viii. J n the present case the general feoffees have 
 of uses which no vested estate to preserve the contingent 
 
 are not exe- ' ° 
 
 cutcd b y thesta - remainders during their contingency; but 
 could by their entry only give such a seisin, 
 as would serve uses in esse at that time ; it was 
 the want of this vested estate in feoffees 
 (ivhich it was agreed in Chudleiglis case they 
 had not), that gave rise to the practice of in- 
 serting trustees to preserve contingent re- 
 mainders. By this mode the trustees have a 
 power to enter for forfeiture, and to continue 
 in possession during the life of the tenant for 
 life; and this estate, limited to them upon 
 commission of forfeiture, has been held to be 
 a vested estate, and will preserve the contin- 
 gent uses as effectually, as the intervening 
 estate for life in the case put by Roll, sup- 
 posing the trustees in the one case, and the 
 intervening tenant in the other, to make an 
 actual entry. Indeed Mr. Fearne has endea- 
 voured to prove, that the mere right of (with- 
 out an actual) entry will preserve the contin- 
 gent uses 6 . 
 
 It will be necessary to state fully the case 
 of Wigg and Villers f , and the resolutions 
 upon it. 
 
 " If A. seised of land in fee covenants for 
 " natural affection to stand seised to the use 
 
 « See 22 Vin. 225. pi. 3. f 2 Roll. Ab. 79G. 22 
 
 and cases in the note. Vin. 228, 229, 230.
 
 chap, ii.] Stat. -27 H.S. c. 10. 237 
 
 "of himself for life, the remainder to his s^ct. vnr. 
 " wife for life, the remainder to B. his daugh- of uses which 
 
 „ , . «. . > , • n are not exe- 
 
 M ter tor lire, the remainder to the first son cutedtythesu- 
 
 " to be begotten of the body of B., and after 
 
 " to divers other sons of B. in like manner, 
 
 " the remainder to his right heirs; and after 
 
 "A. grants his reversion in fee to J. S. to 
 
 " the use of J. S. and his heirs, but without 
 
 ** any consideration, reciting in the deed the 
 
 " said uses, by which the grantee has conu- 
 
 " zance of the uses, and so he is subject to 
 
 " the said contingent estate, and this grant 
 
 '? is no disturbance of them. And afterwards 
 
 "•A. makes feoffment in fee of the land, and 
 
 " then B. takes baron, and has issue a son, 
 
 " and then A. dies, and his feme enters, and 
 
 " after B. dies, and then the feme dies so 
 
 " seised. Jn this case the contingent use to 
 
 " the first son of B. is not destroyed ; but he 
 
 " may enter, for the feoffment of A. was a 
 
 " forfeiture of his estate, and of the estate 
 
 " of his wife in remainder during the cover- 
 
 " ture, so that B. might have entered for the 
 
 " forfeiture during the coverture; and so B. 
 
 " had a right of entry, which was sufficient 
 
 '' to support the contingent remainder, to the 
 
 " first son, &c. without question. But the 
 
 " case had been more dubious, if B. had not 
 
 " had any estate for life; but that the con- 
 
 " tingent remainders had depended on the 
 
 " estate of the wife immediately, where the 
 
 M feoffment of the baron had destroyed them,
 
 238 Of Uses since the [chap. u. 
 
 Sect. viii. " inasmuch as the feoffment of the baron 
 of uses which " passed his estate, and the estate of the wife 
 
 are not exe- 
 cuted by the sta- " d ii mi g the coverture ; so that none can 
 
 tute. i-i i • i 
 
 " enter during the coverture ; and so neither 
 M the estate of the baron, nor of the wife in 
 " esse during this time, to support the con- 
 " tingent uses. But this doubt does not come 
 " in question in this case, inasmuch as B. 
 " had an estate for life in remainder, which 
 " was only divested by the feoffment, and 
 " turned to a right, and she had a present 
 " right of entry for a forfeiture. And when 
 " A. the baron died, and his wife entered, 
 " this reduced her estate for life, and the es- 
 " tate of B. for her life; and so the contin- 
 " gent use reduced also ; and vested, by 
 " force of the statute of uses, in the first son 
 "ofB. 
 
 " In the debate of this case between me 
 " and my brothers Nicholas and Aske, it 
 " was agreed and resolved, that if a feoff- 
 " ment be made by A. and B. in fee to the 
 " use of A. for life, the remainder to C. for 
 " life, the remainder to the eldest son of C. 
 " in tail, with diverse contingent uses after 
 " in remainder, the remainder to the right 
 " heirs of A. in fee; that in this case the 
 " feoffment of A. will not destroy the con- 
 " tingent uses, because the remainder to C. 
 " though it be divested, yet he shall have a 
 " right of entry for a forfeiture, and a right
 
 chap, ii.] Stat. 27 II 8. c. 10. 239 
 
 " to the remainder, which is sufficient to sup- skct. vhi. 
 " port the contingent uses; for this is the of uses which 
 
 1 . are not exe- 
 
 " common assurance upon marriages and the cuted by the «a- 
 
 u +• tute * 
 
 " common practice. 
 
 " And it was also agreed and resolved by 
 " us, That in the said case, if C, who is in 
 " remainder for life, enters into the land, 
 " either in the lifetime of A. or after his 
 " death, this shall reduce the contingent re- 
 " mainders, so that if a son be born in his 
 " life, his contingent estate shall be settled 
 " and executed by the statute of uses, with- 
 " out any re-entry, by the first feoffees ; for 
 " this is an incident of the first livery. 
 
 " And it was also resolved and agreed 
 " between us, That if, after the feoffment 
 "of A. if C. had not entered, but died be- 
 " fore entry, yet if the first son of C. was 
 " born in his life, he cannot enter, though 
 " his contingent estate is not destroyed, be- 
 " cause this was not executed in the life 
 " of C. ; the estate of C. being turned to a 
 " right, and so the contingent disturbed. 
 " But in this case, the first feoffees may enter 
 " to revive this contingent use, and then by 
 " their entry the contingent use shall be set- 
 " tied and executed in the first son, by the 
 " statute of uses ; for there is a scintilla 
 "juris in the feoffees to enter, in such cases 
 " of necessity, to revive contingent uses ; for
 
 240 Of Uses since the [chap. 11. 
 
 Sect. viii. " otherwise the contingent use would be de- 
 
 of uses which " stroyed. 
 
 are not exe- 
 cuted by the sta- 
 tute. 
 
 " It was also agreed and resolved by us, 
 " That when a feoffment is made to certain 
 il uses, with divers remainders over in con- 
 " tingency, and no estate left in the feoffees, 
 " and after the feoffees enter into the land, 
 " and disseise the tenant in possession, and 
 " make feoffment in fee, that this does not 
 " destroy the contingent uses, if the tenant in 
 " possession or any in remainder, in whom an 
 " estate certain was settled before the feoff- 
 " ment, re-enters; for his re-entry shall re- 
 " duce all the contingent remainders, and 
 " shall make them capable of execution by 
 " the statute of uses ; for the feoffees are but 
 " conduits to convey the estates, and have 
 " not any power left in them to destroy any 
 " contingent uses. 
 
 " It was also agreed and resolved by us, 
 " That when a feoffment is made to certain 
 " uses, with diverse remainders over in con- 
 " tingency, and no estates left in the feoffees, 
 ** yet if the estates in esse are divested, 
 " either by disseisin, or by feoffment, or 
 " otherwise, before the contingents happen, 
 " and after the contingents happen, during 
 " the divestment, and after the estates in 
 " esse determine before any re-entry ; if the 
 " feoffees release all their right in the land,
 
 chap. II.] Stat. 27 H. 8. c. 10. 241 
 
 " or make feoffment of the land, or bar their s ECT . vni. 
 "entry by any other way, in this case the Of uses which 
 
 , are not cxe- 
 
 " contingent can never be revived to be exe- euted by the s ta- 
 
 " cuted by the statute of uses, because the 
 
 " feoffees, who liad scintillam juris in them, 
 
 *_' in case of necessity to revive the contin- 
 
 " gent uses, have barred their entry to revive 
 
 " the contingent uses, and no other can re- 
 
 " vive them, so that they cannot be executed 
 
 " by the statute." 
 
 (2.) Uses limited of copyhold lands are Uses limited of 
 
 V ' . copyhold 
 
 not within the statute of uses e ; for if such estates. 
 uses were permitted to be limited on convey- 
 ances of copyhold estates, there would be a 
 transmutation of possession by the sole ope- 
 ration of the law; which would be contrary 
 to the nature of copyhold tenure. It is a 
 principle of that tenure, that the lands can- 
 not be aliened without the consent of the 
 lord. 
 
 (3.) As the statute 27 Hen. 8. c. 10. was Devises to use* 
 made previously to the statute of wills, 32 
 and 34 Hen. 8., it seems to follow, that the 
 former does not extend to devises to uses ; 
 for a statute cannot be considered to extend 
 to any thing, which at the time of the mak- 
 ing of it did not exist f . But as the testa- 
 
 e Co. Copy. sec. 54. Cro. under fol. 277. a. 
 Car. 44. 2 Ves. 257. Uses, limited upon a sei- 
 
 f Sid. 26. in Hore v. Dix. sin created by devise, are no 
 
 Note, 1 Co. Litt. 271. b. doubt executed and become 
 
 . VOL. I. R
 
 242 
 
 Of Uses since the [chap. ii. 
 
 Sect. VIII. 
 
 Of uses which 
 arc not exe- 
 cuted by the sta- 
 tute. 
 
 tor's intention is genera 
 of devises, it has been 
 
 legal estates ; and whether 
 they be executed by the 
 operation of the statute of 
 uses, or by virtue of the 
 principle of decision in 
 courts of justice, which 
 gives effect to the devisor's 
 intention, is of no real prac- 
 tical importance. The po- 
 sition, however, that an act 
 cannot extend to any thing 
 not existing at the time of 
 its passing into a law, is too 
 generally stated. The au- 
 thor thinks it necessary to 
 subjoin the following ex- 
 tracts from Vernon's case, 
 4 Co. 4. a. " Note, reader, 
 " in the said case reported 
 ". by the lord Brook, it is 
 " further said, that a devise 
 " of land by the husband to 
 " the wife by will, is no bar 
 " of her dower, for it is a 
 lC benevolence and not a 
 " jointure, per justiciar, as 
 " it is there reported ; and 
 " that is good law, if it is 
 " well understood. And as 
 " to that, some have said, 
 " that no estate devised hy 
 " will can be a jointure 
 " within 27 H.8. c.10., for 
 " two reasons: — 1. That by 
 " the said act of 27 H. 8. 
 " the whole estate of the 
 " feoffees was transferred 
 " to cestuique use, and per 
 " consequens no land after 
 " the making of that act 
 " was devisable till the stat. 
 " 32 H. 8., and therefore 
 " a devise of land, which 
 " then by the law could 
 " not be made, cannot be 
 
 lly the guide in cases 
 repeatedly determin- 
 
 within the said act 27 H. 
 8. The other reason was, 
 because every jointure in- 
 tended within the act 27 
 H. 8. is made and assured 
 either before or during 
 the coverture, as appears 
 by the said act, but a de- 
 vise takes its effect after 
 the husband's death : but 
 that neither of these is 
 any reason in law, appears 
 by the resolution follow- 
 ing, Mich. 38and39Eliz. 
 between Leak and Ran- 
 dall in the court of 
 Wards, it was resolved by 
 the twochiefjustices,and 
 tot. cur. that if a man de- 
 vises land to his wife for 
 term of her life generally, 
 it cannot be averred to be 
 for the jointure of the 
 wife, and in satisfaction 
 of her dower, for two rea- 
 sons: — 1. Because a de- 
 vise implies a considera- 
 tion in itself; and there- 
 fore as a devise cannot be 
 averred to be to the use 
 of another than of the de- 
 visee, unless it is express- 
 ed in the will ; no more 
 can a devise be averred 
 to be for a jointure, un- 
 less it is so expressed 
 in the will : but as it is 
 said in the said case, 6 
 E. 0'., it shall be taken for 
 a benevolence, and so is 
 the said case of 6 E. 6. to 
 be intended. 2. The whole 
 will concerning lands by 
 the statutes of 32 and 34 
 H. 8. otisht to be in writ-
 
 vjhap. ii. j Stat. 27 H. 8. c. 10. 243 
 
 ed s , that if A. devise to B. and his heirs, to s,;ci - vin. 
 the use of. or in trust for C. and his heirs, 0f,,s " which 
 
 ' ' are not exe- 
 
 or in trust to permit C. and his heirs to take c,,lcdh y thesta - 
 
 v tute. 
 
 the profits, it shows, that the testator intend- 
 ed, that C. should have the legal estate in 
 fee; and the law, upon this interpretation of 
 the testator's meaning, will give the devise 
 such an operation. But it is clear, that if 
 there be a devise to the use of A. for life, re- 
 mainder over, this cannot take effect by way 
 of use, executed by the statute, because there 
 is no seisin to serve the use : but still the ces- 
 tuique use will have the legal estate. 
 
 (4.) Very soon after the statute of uses Trusts to pay 
 an opinion was delivered, that though a feoff- 
 
 over, &c. 
 
 " iug, and no averment 
 " ought to be taken out of 
 " the will which cannot be 
 " collected by the words 
 " contained in the will. 
 " But if a man devises land 
 "to a woman for term of 
 " her life or in tail, &c. lor 
 " her jointure, and in satis- 
 " faction of her dower, it 
 " was resolved, that it is a 
 "jointure within the act of 
 " 27 H. 8. : for as an estate 
 " for life made to a woman 
 " for her jointure before 
 " marriage, when she is not 
 *' his wife, is within the equi- 
 " ty of the said act, so an 
 " estate for life devised to a 
 " woman for her life, which 
 u takes effect after his death, 
 " when the marriage is dis- 
 " solved, is also within the 
 " equity of the said act, for 
 " such estate well agrees 
 R 
 
 " with the intent of the 
 " makers of the said act of 
 ■* 27 H. 3., and with the 
 " said description of a join- 
 " ture made by the justices 
 " in the said case of Ver- 
 " non. And although land 
 " was not devisable until 
 " 32 H. 8., yet it is fre- 
 " quent in our books, that 
 " an act made of late time 
 " shall be taken within the 
 ' • equity of an act made long 
 " time before." 
 
 Sir Edward Coke then 
 proceeds to state several 
 instances, establishing this 
 construction. See also 2 
 lord Ray in. 1028. in sir 
 Wm. Moore's case. 22 Vin. 
 210. pi. 7- and note. 
 
 ' 1 Vern.79. 415. 2 Salk. 
 679. 2 Atk. 573. 2 P. W. 
 134.
 
 244 Of Uses since the [chap. if. 
 
 Sect. vin. merit in fee to the use of the feoffor for life, 
 Of uses which an( j a f ter hjg decease that J. N. shall take the 
 
 are not exe- 
 cuted by the sta profits, be an use executed in J. N.; yet if it 
 
 had been, that after his death the feoffees 
 should receive the profits, and pay them 
 over to J. N. ; this would not be executed by 
 the statute 11 , because the legal estate must be 
 in the feoffees in order to enable them to pay 
 over the profits. This construction has since 
 prevailed ; and therefore if there be a con- 
 veyance in trust to pay over the profits', or 
 to convey k , or to sell 1 , &c. the legal estate 
 must, in these cases, necessarily vest in the 
 trustees. So it is of a trust to permit a 
 feme covert to receive the profits for, or to 
 pay the same to, her separate use m . 
 
 Where a trust has been created to convey, 
 it has been considered as a consequence, that 
 the trustee must have a legal estate to enable 
 him to make the conveyance, except in the 
 case of a mere power: but it appears from a 
 recent decision, that the rule is not univer- 
 sally applicable. In the case of Doe dem. 
 
 h 36 Hen. 8. Bro. Feoff. k Roberts v. Dixwell, 1 
 
 at. Uses, 52. B. N. C. Atk. 607. Bac. Uses, 8. 
 282. ' See ante 4. Bagshaw 
 
 1 Symson v. Turner, 1 v. Spencer, 2 Atk. 578. 
 Eq. Ab. 383. Silvester v. m Pybusv. Smith, 3 Bro. 
 
 Wilson, 2 Term Rep. 444. Cha. Ca. 340. Henry v. 
 
 15 Ves. 371. and Shapland Purcell, Fearne, 75. Nevill 
 
 v. Smith, 1 Bro. Cha. Ca. v. Saunders, 1 Vern. 415, 
 
 75. See the case of Gregory See Bush v. Allen, 5 Mod. 
 
 v. Henderson, 4 Taunt. 772. 63.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 245 
 
 Player v. Nicholls, 1 Barnw, and Cresswell, s«w.vm. 
 336. there was a devise to trustees in trust 0fuseswhich 
 
 are not exe- 
 
 for the testator's son, T. G. Player, of all cmed by the *u- 
 
 J 7 tute. 
 
 the testator's freehold and copyhold lands ; 
 the same to be transferred to him, as soon as 
 he should attain the age of twenty-one years. 
 It was determined, that the trustees took an 
 estate determinable on the son's attaining the 
 age of twenty-one years ; and Mr. justice 
 Holroyd said, that he was very clearly of 
 opinion, that the trustees had no legal in- 
 terest in the copyholds after T. G. Player at- 
 tained the age of twenty-one years. 
 
 Although in some cases, which I shall 
 mention in the observations which follow, 
 the courts have considered the legal estate 
 vested in trustees to be determinable by 
 events, I do not remember any case, besides 
 Doe v. Nicholls, in which this has been done, 
 where there had been a positive direction to 
 convey. A determinable fee ceases upon the 
 happening of a certain event without the aid 
 of a conveyance ; and a direction to convey a 
 determinable fee in the event, which destroys 
 it, would be in itself a contradiction in terms. 
 
 It is sometimes difficult to determine the 
 
 extent of the legal estate vested in trustees, 
 
 under trusts of the above description ; and 
 
 the decided cases are not always consistent. 
 
 r3
 
 246 Of Uses since the [chap. ii. 
 
 Sect. viii. The g rs t point to ascertain in a case of 
 
 of uses winch ^- ]s j^jjjj j s whether the trustees take a free- 
 are not exe- ' 
 
 cutedbythesta- l 10 ]d or a chattel iuterest. In Trod d v. Dowries, 
 
 tute. ' 
 
 2 Atk. 304. there was a devise to trustees and 
 their assigns until R.and B. should attain the 
 age of twenty-one years, and to receive the 
 rents in the mean time for the maintenance of 
 the said R. and B.; and after they should attain 
 the age of twenty-one years, then to the said 
 R. and B. during their lives, &c. It was de- 
 termined, that the trustees took a chattel 
 interest until R. and B., or the survivor of 
 them, attained the age of twenty-one years. 
 
 So in Goodtitle ex dem. Hayward v. 
 Whitby, 1 Burr. 228. there was a devise to 
 T. H. and J. B. and the survivor of them, 
 and the heirs of such survivor, in trust that 
 they, and the survivor of them, his heirs 
 and assigns, should lay out the rents and 
 profits of the devised premises for the main- 
 tenance of T. and J. H. during their minori- 
 ties, and when and as they should severally at- 
 tain their ages of twenty-one years, then to 
 the use of the said T. and J. H. and their 
 heirs equally. This was determined to be an 
 immediate gift to T. and J. H. with a trust to 
 be executed during their minorities. 
 
 •a 
 
 Upon this case, it is to be remarked, that 
 as T. and J. H. took an immediate estate, 
 the trustees could not take any estate of
 
 chap, ii.] Stat. 27 H. 8. c. 10. 247 
 
 freehold, and consequently they took a Swsr.yiii. 
 chattel interest only 1 . 0f uses ; wllich 
 
 J are not exe- 
 
 cuted by the sta- 
 tute. 
 
 In the case of Doe on the demise of White 
 v. Simpson, there was a devise of real estate 
 to trustees and the survivor of them, and 
 the executors and administrators of such sur- 
 vivor, in trust, " out of the rents and profits 
 " of the said estate and the arrears due," to 
 pay certain annuities, and a gross sum of 
 800/. ; and from and after payment of the 
 said annuities, and the said sum of 800/. 
 the testator devised the estate to his brother 
 William for life. Lord Ellenborough said, 
 that he and the other judges were of opinion, 
 " that the trustees took an estate by implica- 
 " tion 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 satisfied, the several 
 " limitations for life and in tail, took effect 
 " as legal limitations." 
 
 There is probably some error in the report 
 of this case, as to the expression, " term of 
 " years." Lord Ellenborough, it is conceived, 
 meant a chattel interest ; for that interest, 
 
 a The case was determin- Mansfield and Dugard, 1 
 ed on the principle of Bo- Eq. Ab. 195. Doe v. Lea, 
 raston's case, 3 Co. 19. b. 3 Term Rep. 41. 
 
 R 4
 
 248 Of Uses since the [chap. 11. 
 
 Sect. viii. which is in its nature uncertain, can never 
 of uses which ^vitli propriety be called a term of years. 
 
 are not exe- l l "* 
 
 cuted by the sta- 
 tute. 
 
 When it is necessary, that an estate of 
 freehold should vest in the trustees, the gene- 
 ral rule is, that the legal estate shall be 
 carried so far only, as is proper to give effect 
 to the intention of the testator 1 '. 
 
 In the case of Jones v. Say and Sele c 
 (which lord Kenyon said was a case byitself), 
 there was a devise of manors and other here- 
 ditaments, to trustees and their heirs, in 
 trust, out of " the rents, issues, and profits" 
 to pay the several legacies and bequests 
 therein after mentioned : then follow be- 
 quests of annuities and pecuniary legacies ; 
 and after reimbursing the costs and expenses 
 of the trustees, and paying the annuities and 
 legacies, in trust to pay all the residue of the 
 rents and profits to Cecil Fiennes, during her 
 life, for her separate use; and after her 
 death, the trustees were to stand seised of the 
 premises, to the use of the heirs of her body, 
 subject to the payment of the annuities and 
 legacies. It was determined, that the legal 
 estate vested in the trustees, during the life 
 only of Cecil Fiennes, and that the limita- 
 
 b See Doe dem. Wood- c 8 Vin. 262. pi. 19. 3 
 
 cock v. Burthorp, 5 Taunt. Bro. Par. Ca. 113. S. C. 1 
 
 382. Robinson v. Gray, 9 Ves. 144. S. C. cited. 
 
 Fast, J . d 7 Term Rep. 654.
 
 chap. II.] Stat. 27 H. 8. c. 10. 249 
 
 tion to the use of the heirs of her body carried Skct - vm - 
 the le^al estate. Ofwee^ch 
 
 ~ are not exe- 
 
 cuted by the sta- 
 tute. 
 
 In Shapland v. Smith, 1 Br. Ch. Ca. 75. 
 there was a devise to trustees, upon trust, that 
 they, their heirs and assigns, should yearly by 
 quarterly payments out of the rents, after 
 paying taxes, pay such clear sum to C. S. for 
 life, and after his decease, to the use of the 
 heirs male of his body ; and it was held, that 
 the legal estate vested in the trustees during 
 the life of C. S. a 
 
 It is presumed, that in the cases of Doe v. 
 Simpson, and Jones v. Say and Sele, the 
 ground of determination was, that the words, 
 " rents and profits ," did not create a trust for 
 sale of the devised estate b ; for it seems to 
 be clear upon principle, as well as authority, 
 that where a trust authorizes the trustees to 
 sell, the legal estate in fee-simple must neces- 
 sarily vest in them, in order to enable them 
 to perform their trust. 
 
 In Bagshaw v. Spencer , the devise was 
 to several trustees, their heirs and assigns, 
 
 a See Silvester v. Wilson, as explanatory of the testa- 
 
 2 Terra Rep. 444. tor's intention to confine the 
 
 b Perhaps the words, words, rents and profits, to 
 
 " and arrears due" in the annual rents, 
 one case, and "subject to c 2 Atk. 570. 577. lVes. 
 
 " the annuities and legacies' 142. 144. S. C. 2 Burr, 
 
 in the other,were considered 918. S. C. cited.
 
 •250 Of Uses since the [chap. u. 
 
 Sect. viii. upon trust, out of the rents, or by sale or 
 Of uses which niortsrace, to pay the testator's debts: and 
 
 are not cxe- ° ° * J 
 
 cuted by the sta- a f ter payment thereof, the testator devised 
 
 tute. r J 
 
 the same estates to three of the same trustees 
 for a term of years, and after the determina- 
 tion of the said term, he devised the same 
 estates to all the trustees and their heirs, 
 upon certain trusts. Lord Hardwicke said, 
 " The devise is to trustees and their heirs, 
 " which carries the whole fee in law ; the 
 " devise to sell would have carried the fee, if 
 "the word heirs had not been mentioned." 
 " In the present case, the whole fee being 
 " devised to the trustees, no legal fee could 
 "be limited upon it." 
 
 In Gibson v. Rogers a , there was a devise 
 of freehold, leasehold, and personal estates to 
 trustees, their " executors, administrators" 
 and assigns, in trust to pay certain annuities 
 and legacies out of the rents and profits of 
 the personal estate; and if that should be 
 deficient, then out of the "rents and profits" 
 of the real estate ; and as to the residue of 
 the real and personal estate, after provision 
 for payment of the annuities and legacies, 
 the testator gave the same to the children of 
 Francis Gibson. Lord Hardwicke, in this 
 case, thought, that the words rents and profits 
 would authorize the trustees to sell the real 
 
 * Amb. 93.
 
 chap, ii.] Stat. 27 H. 8. c. 10. 251 
 
 estate; and that the legal estate in fee-simple sect. vm. 
 vested in the trustees. of uses which 
 
 are not exe- 
 cuted by the sta- 
 
 So, in the case of Wright v. Pearson\ 
 in which Henry Rayney, by his will, bearing 
 date the 2d May 1727, devised his estate at 
 Darsfield and Royston,in the county of York, 
 to George Wright and Joseph Bateman, and 
 their heirs and assigns for ever, in trust out 
 of the rents, issues, and profits, to raise 500/. 
 with interest, to be equally divided between 
 his five grandchildren, and to be paid to 
 them respectively at twenty-one, with benefit 
 of survivorship; and subject thereto, to the 
 use of his nephew Thomas Rayney, son of his 
 sister Frances Rayney, and his assigns, for 
 and during the term of his natural life, sub- 
 ject to his qualifying himself as thereinafter 
 mentioned, remainder to trustees to support 
 contingent remainders, remainder to the use 
 of the heirs male of the body of the said 
 Thomas Rayney, lawfully to be begotten, and 
 their heirs : provided that in case his said 
 nephew Thomas Rayney should die without 
 leaving any issue male of his body living at 
 his death, then and in such case he subjected 
 the premises to the payment of 100/. each to 
 his two nieces Frances and Priscilla Rayney, 
 daughters of his said sister, if then living, 
 payable at twenty-one, with benefit of survi- 
 
 a l Eden, 119.
 
 252 Of Uses since the [chap. u. 
 
 Sect. viii. vorship ; and he enabled his said trustees, 
 Of uses which after the death of his said nephew, to raise 
 
 are not exe- 
 cuted by the sta- an d pay the same. Upon the question as to 
 
 the legal estate, the lord keeper (Henley) 
 
 made the following observations : " It is said 
 
 " the trustees had only a chattel interest 
 
 " quousque the debts are paid; and that, 
 
 " subject to that chattel, this estate is exe- 
 
 " cuted in Thomas, with remainders over. 
 
 " Carter v. Barnardiston, 1 P. W. 505. has 
 
 "been quoted for this purpose. In that case 
 
 "sir Michael Armine, 30th March 1668, de- 
 
 " vised, that in case his personal estate should 
 
 " not be sufficient to pay his debts and lega- 
 
 " cies, then his executors should receive the 
 
 " profits of his whole real estate, for the pay- 
 
 "ment of his debts and legacies; and after 
 
 "these should be paid, he devised, &c. The 
 
 " lords, with the advice of the judges, were 
 
 " of opinion, that the executors had only a 
 
 "chattel interest; and Hitchens v. Hitchens, 
 
 " 2 Vern. 403. is to the same effect. 
 
 " But these cases do not, in my opinion, 
 "apply to the present, and warrant the con- 
 clusion; for in these two cases the estate 
 " devised was an uncertain interest, and 
 "therefore a chattel. But whenever a cer- 
 " tain express interest is devised, I conceive 
 "it not to be in the power of this court, by 
 " construction, to make the devise pass any 
 "other interest, than is expressed. For in-
 
 tutc. 
 
 chap. II.] Stat. 27 H. 8. c. 10. 253 
 
 ''stance, a man devises his lands and tene- Sect.viii. 
 " ments to J. S. for twenty years, for the pay- Ofuses which 
 
 J J r ^ are not exe- 
 
 " ment of his debts and legacies only, and cuted by the sta- 
 
 V after payment thereof to J. B. and his 
 
 '■' heirs. After payment, this court will de- 
 
 " clare the term to be a trust for J. B., and 
 
 Ci to be assigned accordingly ; but the court 
 
 " cannot declare, that the term determined 
 
 " with 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 such construction would 
 
 " change the trustees contrary to the tes- 
 
 " tator'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? 
 
 " In the case of the earl of Bath, reported 
 " by the name of Bosworth v. Farrand, 
 " Carter, 97. William earl Bath had, by 
 " fine and deed to lead the uses, limited lands 
 " to the use of Francis, lord Russel, and 
 " others, trustees, and their heirs, after the 
 " death of the earl, to raise for the daughters 
 " of lord Fitzwarren 4000/. apiece. The 
 " question in that case was, whether those 
 " lands were within a power of jointuring. 
 " Bridgman, C. J. in giving his judgment, fol. 
 " 107. says thus : ' I shall not need to prove
 
 254 Of Uses since the [chap. n. 
 
 Sect. viii. << the whole fee-simple limited to the trustees, 
 or uses which « t jj] t j ie p 0r tions raised, though he that 
 
 are not exe- ■ ° 
 
 cutedbythesta- « argued first seemed to be of opinion, that 
 " all was but a chattel ; but it is clear it is a 
 " fee-simple. If land be conveyed to the use 
 " of A. and B. and their heirs till 1000/. be 
 " raised, it is a fee-simple conditional.' 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 was confirmed by 
 " lord Hardwicke, in Bagshaw v. Spencer, 
 " though, indeed, in that case, there was the 
 " additional circumstance, that the trustee 
 " might sell." 
 
 '&■ 
 
 So, in a recent case 3 , there was a devise 
 to trustees and their heirs, of real estates, 
 in trust, to demise or let all the testator's 
 freehold estates for any term they should 
 think proper, and to pay one third of the 
 rents to the testator's wife for life, and the 
 remaining two third parts of such rents, and 
 after the decease of the wife, the first men- 
 tioned one third part, to the testator's daugh- 
 ter for life, for her separate use independently 
 of her husband ; and after the death of the 
 daughter, the testator bequeathed all his 
 
 a Doe dem. Tomkyns v. Willan, 2 Barnw. and Aid. 84/
 
 chap. ii.J Slat. 27 H. 8. c. 10. 255 
 
 freehold estates to her children, equally to be sect. viii. 
 divided among them at their respective ages Of uses which 
 
 ° ' ° are not exe- 
 
 of tvventv-one years. This was held to be acutedbythesta- 
 
 tute. 
 
 devise of the legal fee to the trustees, and 
 not a mere power of leasing, nor a deter- 
 minable fee. 
 
 In the late case, however, of Warter v. 
 Warter, 2 Brod. and Bing. 349. the uni- 
 formity of these determinations seems to have 
 been interrupted. In that case Thomas Me- 
 redith, by his will, dated the 8th of Sept. 
 1801 (after directing payment of his debts 
 and funeral expenses), devised his capital 
 and other messuages, tenements, lands, and 
 hereditaments, with their respective appurte- 
 nances, charged with two annuities, to trus- 
 tees, their heirs and assigns, until his nephew, 
 John Warter, the son of his sister Margaretta 
 Warter, should attain the age of twenty-one 
 years ; and if he should die in the mean 
 time, until Henry Warter, the second son of 
 the said Margaretta Warter, should arrive at 
 that age ; and, if the said Henry Warter 
 should die in the mean time, until the daus:h- 
 ter of the said Margaretta should arrive to 
 that age ; upon trust, among other thiugs, to 
 raise out of the rents and profits of the pre- 
 mises, or by sale or mortgage thereof, or of a 
 competent part thereof, the full sum of 2000/., 
 together with all costs and charges attending 
 the raising of the same, and to pay the same
 
 256 Of Uses since the [chap. n. 
 
 Sect. viii. to the said Henry Warter, the younger son of 
 Of uses which his sister M. Warter, as soon as he attained 
 
 are not exe- , 
 
 cuted by the sta- the age of twenty-one years ; and, if his sister 
 should happen to have more than one younger 
 child, to raise out of the rents, issues, and 
 profits of the premises, the full sum of 3000/., 
 and pay the same to and amongst such 
 younger children, share and share alike, as 
 soon as they should severally attain their ages 
 of twenty-one years; and upon further trust, 
 to pay and apply a proper sum of money, 
 arising from the rents and profits of the pre- 
 mises, for the maintenance and education of 
 his nephew, John Warter, till he should 
 arrive at the age of twenty-one years; and 
 when John Warter should attain that age, to 
 pay him the residue of the rents, issues, and 
 profits of the premises, if any should remain 
 after performance of the before mentioned 
 trusts; and if John Warter should happen to 
 die before he attained the age of twenty-one 
 years, then to pay and apply a sufficient sum 
 of the money arising from the rents and pro- 
 fits of the premises, for the maintenance and 
 education of his nephew, Henry Warter, till 
 he should attain the age of twenty-one years; 
 and when Henry Warter should arrive at 
 that age, then, upon trust, to pay him the rest 
 and residue of the rent, issues, and profits of 
 the premises, if any should remain after per- 
 formance of the before mentioned trusts; and, 
 in the mean time, to place out the money
 
 chap, ii.] Stat, 27 H. 8. c. 10. 257 
 
 arising from the rents and profits of the pre- Sect - viil 
 mises, at interest, for the benefit and advan- 0fuses which 
 
 ' are not exe- 
 
 tage of his said nephew; and when and as cutedb y tbesta ~ 
 soon as John Warter should attain the age of 
 twenty-one years, or, in case of his death, 
 when and as soon as Henry Warter should 
 arrive at that age, or, in case of his death, 
 when and as soon as the daughter of Marga- 
 retta Warter should arrive at the age of 
 twenty-one years, he gave and devised the 
 premises, with their respective appurtenances, 
 subject as aforesaid, to the said trustees, their 
 heirs and assigns, to the use of his nephew, 
 John Warter, and his assigns, for life, sans 
 waste; remainder to trustees, to preserve 
 contingent remainders; and, after the decease 
 of John Warter, to the use of the first, second, 
 third, and all and every other son and sons 
 of the body of John Warter lawfully issuing, 
 severally and successively in tail male; with 
 remainder to his first and every other daugh- 
 ter successively in tail ; with remainders over. 
 John Warter died under the age of twenty- 
 one years, leaving a widow, Jane Warter, and 
 also Margaretta Elizabeth Meredith Warter 
 his only child and heir at law, him surviving. 
 
 The judges of the court of Common Pleas 
 certified, that upon the death of John Warter 
 under the age of twenty-one years, Margaretta 
 Elizabeth Meredith Warter, his only child, 
 
 vol. i. s
 
 258 Of Uses since the [chap. n. 
 
 sect. viii. became, and is now, entitled to the devised 
 
 of uses whkh estate an( j premises, as tenant in tail male of 
 
 arc not exe- r * 
 
 cutcdbythesta- t | / e W estate. 
 tute. <-5 
 
 From this certificate it is clear, that the 
 judges did not consider the legal estate in fee- 
 simple to have been vested in the trustees, 
 although there was an express trust to sell or 
 mortgage. The same construction seems to 
 have been adopted in Hawker v. Hawker, 
 3 Barn, and Aid. 527. It is possible, that in 
 both cases the judges considered the trust to 
 sell or mortgage, in the nature of a power ; 
 for, if a purchaser or mortgagee were to derive 
 title from the estate vested in the trustees, 
 under the trust to sell or mortgage, that 
 estate must necessarily have been an absolute 
 fee-simple : for, if the legal fee, when vested 
 in the trustees, was in its nature determin- 
 able, the purchaser, deriving title under them, 
 must take an estate commensurate to that, 
 which the trustees held, and his estate would 
 therefore be also determinable. 
 
 But where an estate is devised to trustees 
 and their heirs, the legal fee-simple may be 
 made determinable in a certain event, by 
 way of executory devise : but, as lord Hard- 
 wicke observed, in the case of Bagshaw v. 
 Spencer, an executory devise after payment 
 of debts, would be void, as being too remote.
 
 tute. 
 
 chap, ii.] Stat. 27 H. 8. c. 10. 259 
 
 In Wellington v. Wellington*, there was Sect - vin - 
 a devise to J .A. and J. S. and their heirs, in 0fuses which 
 
 are not exe- 
 
 trust to pay E. W. an annuity of 100/. till cutcdbythesta- 
 the testator's debts and legacies were paid ; 
 and after payment thereof, the testator de- 
 vised to E. W. for life, &c. : and it was de- 
 cided, that the trustees took a base fee, 
 determinable on the payment of the debts 
 and gleacies out of the profits of the estate. 
 This case, therefore, seems to be directly 
 opposed to the opinion of lord Hardwicke in 
 Bagshaw v. Spencer, and seems at variance 
 with the acknowledged principles, by which 
 the limits of springing uses and executory 
 devises are fixed, by the policy of law, re- 
 lating to perpetuities. 
 
 In the case of Brownsword v. Edwards b , 
 Francis Brownsword devised the premises in 
 question to two persons and their heirs, to 
 receive the rents and profits, until that little 
 boy, commonly called John Brownsword, 
 should attain twenty-one, which would be 
 14th 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 
 twenty-one, or have issue, then to the said 
 John Brownsword and the heirs of his body: 
 but if the said John Brownsword should 
 
 a 1 W. Black. 645. and 4 Burr. 2165. b 2 Ves. 243. 
 
 s2
 
 200 Of Uses since the [chap. ii. 
 
 Sect. viii. happen to die before the age of twenty-one, 
 of uses which j w jthout issue, then in the same manner 
 
 arc not exc- ' 
 
 cutcdbythesta- j ie devised it to the same persons, in trust, 
 
 tute. * 
 
 till that little girl commonly called Sarah 
 Brownsword, should attain the age of twenty- 
 one, which would be at such a time; but if 
 she should happen to die, &c. exactly in the 
 same words as the former devise, then to the 
 other collateral branches of his family ; and 
 for want of such issue, to his own right heirs 
 for ever. 
 
 Upon that case lord Hard wicke observed, 
 " Having first given the whole legal fee to 
 "trustees and their heirs, he did not intend 
 " either of these two children should have 
 "any thing vested till twenty-one, or the 
 " having issue, and then to have an estate 
 " tail ; consequently, as soon as John attained 
 "twenty-one, or had issue, though he died 
 "before twenty-one, that defeated and de- 
 " termined the estate in law given to the 
 " trustees, and vested a fee tail in him." 
 
 When trustees are appointed to preserve 
 contingent remainders, and their estate is not 
 by express terms confined to the life of the 
 tenant for life, after whose estate the con- 
 tingent remainders are to take effect, it some- 
 times becomes a question, which I apprehend 
 both in wills and deeds, is determined upon
 
 chap, ii.] Stat. 27 H. 8. c. 10. 261 
 
 intention, whether the trustees take the fee- Sect.viii. 
 simple, or an estate per autre vie only. of uses which 
 
 1 ' ■*■ J are not exe- 
 
 cuted by the sta- 
 tute. 
 
 In Doe dem. Compere v. Hicks, 7 Term 
 Rep. 433. there was a devise of lands to A. C. 
 for life, with remainder to John Compere for 
 life, and after the determination of that es- 
 tate to trustees and their heirs (not in words 
 confining the estate to the life of John Com- 
 pere), in trust to preserve contingent re- 
 mainders; and after the decease of John 
 Compere, to the first and every other son of 
 John Compere successively in tail male; and 
 in default of such issue, to Anthony C. for 
 life; and after that estate determined, to the 
 said trustees and their heirs, in trust to pre- 
 serve contingent remainders ; and after his de- 
 cease, to 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 during 
 the life only of each tenant for life. 
 
 In the case of Venables v. Morris, 7 Term 
 Rep. 342. 439. an estate was settled by deed 
 and fine to the use of J. M. for life, with 
 remainder to trustees and their heirs, during 
 the life of J. M., to preserve the contingent 
 remainders, with remainder to H. M. for life, 
 with remainder to trustees and their heirs 
 (generally) to preserve contingent remainders, 
 with remainder to the first and other sons of 
 s 3
 
 262 Of Uses since the [chap. n. 
 
 Sect. vin. J. M. and Ho M. successively in tail, with re- 
 Of uses which nia j n( ] er to the appointees by deed or will of 
 
 are not exe- ' J ^ 
 
 cotedbythesta- fj. M . and in default of appointment to her 
 
 tute. ' .ii 
 
 right heirs. It was determined, that, subject 
 to H. M.'s life estate, the trustees took the 
 absolute fee-simple; and lord Kenyon, ibid. 
 437. observes, it was absolutely necessary the 
 trustees should take the fee; for H. M. had 
 a power of appointment, and if in exercising 
 that power she had introduced any contingent 
 remainders, they might all have been defeated 
 if the use were not executed in the trustees. 
 
 In Boteler v. Allington, 1 Bro. Chan. 
 Ca. 72. there was a devise to J. B. for life, 
 with remainder to trustees and their heirs 
 during his life, in trust to preserve con- 
 tingent remainders, with remainder to P. B. 
 for life, with remainder to trustees and 
 their heirs (generally) in trust to preserve 
 contingent remainders, with remainder to the 
 first and other sons of P. B. successively in 
 tail male, with reversion to the testator's 
 heirs. It seems, that the lord chancellor 
 Thurlow considered the legal estate in fee- 
 simple to be vested in the trustees ; but lord 
 Kenyon, 7 Term Rep. 437. has observed, 
 " the case of Boteler v. Allington ought not 
 " to be relied on as an authority, because it 
 " was an amicable suit, and the bill was 
 " filed merely to remove all doubts."
 
 chap, ii.] Stat. 27 H. 8. c. 10. 263 
 
 Lastly, it is proper to refer to a case, sect. viii. 
 where there was a devise to trustees and of uses which 
 their heirs, in trust to permit a feme covert cuted by thesta- 
 to receive the rents and profits for her separate 
 use for life, and after her decease, to the use 
 of the first and other sons of her body, &c, 
 with other limitations over, in default of 
 issue, for the separate use of other femes 
 covert; it was determined, that the legal es- 
 tates in fee-simple vested in the trustees v . 
 
 (5.) As the statute says, that when any Terms of years 
 
 . t . 7 , , i n and other chat- 
 
 person or persons stand seised to the use of teis. 
 another, &c, it has been resolved, that a term 
 of years or other chattel interest cannot be 
 limited to a use w . 
 
 (6.) When the courts of law, after the Use upon a use. 
 statute of Hen. 8., took cognizance of uses, 
 they held, that no use limited upon a use 
 could be executed by the statute; and there- 
 fore if there be a conveyance to the use of 
 A. and his heirs, to the use of B. and his 
 heirs, this use cannot be executed in B. x So 
 if land be limited to A. and his heirs to the 
 intent or in trust, that B. and his heirs may 
 receive a rent thereout to the use of C. and 
 his heirs, the legal estate in the rent will 
 
 v Harton v. Harton, 7 x 36 Hen. 8. B. N. C. 
 
 Term Rep. 652. 2 Swanst. 284. Tyrrel's case, Dyer, 
 
 391. note a. 155. a. Samback v. Dalton, 
 
 w Bac. Uses, 42. Tothil, 1 Atk. 591. 
 
 s4
 
 264 Of Uses since the [chap, ii 
 
 sect. viii. vest in B. by the fifth clause of the statute y ; 
 Of uses which because the seisin, out of which the rent 
 
 are not exe- , . , . . . . _, 
 
 cutedbythesta- arises, is conveyed to A., and upon the limit- 
 ation of such rent to B., the statute is satis- 
 fied. There has been however an exception, 
 and I believe only one exception, to this 
 rule. A recovery was suffered of lands to 
 the use of A. and his heirs, yielding for the 
 same a rent to B. ; it was urged, that the 
 rent ought to have been limited out of the 
 estates of the recoverors, and not out of the 
 possession of cestuique use; yet it was deter- 
 mined, that the rent was well executed by 
 the statute 2 . 
 
 y Chaplin v. Chaplin, 3 z Cromwell's case, 2 Co.. 
 
 P. W. 229. G9. b.
 
 chap, in.] Stat. 27 H. 8. c. 10. 265 
 
 CHAP. III. 
 
 Of Trusts since the Statute 27 Hen. 8. c. 10. 
 
 I. The construction adopted by the courts of Sect. i. 
 
 law upon the statute of uses obliged cestui- of the intro- 
 duction and 
 que trust, entitled to a beneficial interest, system of trusts 
 
 since the sta- 
 
 not executed by the statute, to apply for re- tute. 
 dress to the Court of Chancery; and the 
 consequence of the statute has been, that the 
 ancient use has been abolished with its in- 
 conveniences, and a secondary use has been 
 introduced under the name of trust, modelled 
 by the Court of Chancery, after its own fa- 
 shion, and being, as it is properly called, a 
 creature of equity. The Chancery was aware 
 of the mischiefs attendant upon uses before 
 the statute; and, therefore, in exercising an 
 exclusive control over these trusts, it has 
 formed them, so as to answer all the contin- 
 gencies of family settlements and domestic 
 provisions. The observation, therefore, of 
 lord Hardwicke 3 , that the statute of uses 
 " has had no other effect, than to add at most 
 " three words to a conveyance," is not sub- 
 stantially correct ; for by extinguishing the 
 
 * l Atk. 591.
 
 266 Of Trusts since the [chap. hi. 
 
 Sect, l fiduciary existence of the use, the statute 
 ofthemtro- nas j n e ff ec t been the occasion of raising: a 
 
 auction and sjs- ' ' o ** 
 
 tem of trusts system of equity, which lord Mansfield calls 5 
 
 since the sta- J * * 
 
 t"^- " noble, rational, and uniform," in the place 
 
 of a system at once unjust and inconvenient. 
 " Trusts," says his lordship, " are made to 
 " answer the exigencies of families and all 
 " purposes, without producing one inconve- 
 " nience, fraud, or private mischief, which 
 " the statute of Hen. 8. meant to avoid." 
 
 An expression is sometimes to be found 
 in the books, that trusts are now, what uses 
 formerly were. A use, indeed, before the 
 statute of uses, was, as a trust since is, a fidu- 
 ciary or beneficial interest, distinct from the 
 legal estate ; and so far the expression is cor- 
 rect : but, abstractedly no objection can arise 
 to the essence or quality, either of the use or 
 trust. It was the system, adopted with re- 
 spect to uses by courts of justice, which gave 
 rise to the necessity of passing the statute of 
 uses ; and the difference between uses before, 
 and trusts since, the statute, consists in the 
 opposite construction adopted by the Court 
 of Chancery respecting them ; or, as it has 
 been said, " there is no difference in the prin- 
 " ciples, but there is a wide difference in the 
 " exercise of them ." 
 
 b 1 Win. Black. 160. c Ibid. 180.
 
 chap, in.] Stat. 27 H. 8. c. 10. 267 
 
 The trust, occasioned by the statute of Sect - r - 
 uses, is of a permanent and general nature, ? fu . ieintr J " 
 
 ' r ° ' auction and sys- 
 
 or a secondary use. But the system intro- 'f* 71 oftrusts 
 
 ** ^ since the sta- 
 
 duced by the Court of Chancery, relative to tute - 
 trusts since the statute, extends not only to 
 trusts declared upon a legal estate in fee, but 
 to those declared upon the estates of tenants 
 in tail, for life and years, and to the special 
 trusts before noticed. 
 
 II. A trust, generally speaking, is a right of the trust 
 
 estate. 
 
 Sect. II. 
 
 on the part of the cestuique trust to receive 
 the profits, and to dispose of the lands in 
 equity d . But there may be special trusts for tion and several 
 the accumulation of profits, the sale of es- 
 tates, or the conversion of one trust fund 
 into another, which may preclude all power 
 of interference on the part of cestuique trust, 
 until such special trust be satisfied; and there 
 is a distinction between trusts executed and 
 trusts executory. 
 
 A trust does not include every equitable Difference be - 
 
 ■*■ tween a trust 
 
 interest. An equity of redemption is said to and equity of 
 
 . . redemption. 
 
 be a title in equity, and not merely a trust. 
 In Pawlett v. the Attorney-general 6 , sir 
 Matthew Hale observes, " there is a diversity 
 
 d 1 Mod. 17. a trust estate and an equity 
 
 e Hard. 465. In Tucker of redemption, are in many 
 
 v. Thurstan, 17 Ves. 133. respects most materially 
 
 lord Eldon observes, that different. See also post.
 
 268 Of Trusts since the [chap. hi. 
 
 Sect. ii. " betwixt a trust and a power of redemption ; 
 ofthedefmi- u f or a t rus t i s created by the contract of the 
 
 tion and several y 
 
 kinds of trusts, it party, and he may direct it as he pleaseth ; 
 " and he may provide for the execution of it: 
 " and, therefore, one that comes in in the post 
 " shall not be liable to it, without express 
 " mention made by the party. And the 
 " rules for executing a trust have often va- 
 ried; and, therefore, they only are bound 
 " by it, who come in in privity of estate. A 
 " tenant in dower is bound by it, because she 
 " is in in the per, but not a tenant by the 
 " curtesy, who is in in the post. So all who 
 " come in in privity of estate, or with notice, 
 " or without a consideration. But a power of 
 " redemption is an equitable right inherent 
 " in the land, and binds all persons in the 
 " post, or otherwise; because it is an ancient 
 " right, which the party is entitled to in 
 " equity." 
 
 sect. hi. HI. It has been intimated, that the courts 
 
 of equity, in forming a system respecting 
 the secondary use, or modern trust, occasion- 
 ed by the statute of uses, have endeavoured to 
 avoid the mischiefs arising from the ancient 
 use. It will be now necessary to state the 
 properties of the trust estate, as distinguished 
 from the legal seisin of the trustee, and to 
 inquire into the rules, by which trusts are 
 governed.
 
 chap, in.] Stat. '27 H. 8. c. 10. 269 
 
 It is a maxim generally received, that in sect. in. 
 the construction of trusts, the courts of J" ^teases 
 
 buv> ^v^ 7 trusts are go- 
 
 equity adopt the rules of law applicable to ^"^^'^ 
 legal estates. In some cases, however, the Jaw S relative to 
 
 ° legal estates. 
 
 assistance of the legislature has been required 
 to preserve the uniformity. 
 
 (I.) If a term of years be assigned to A. Limitations of 
 
 v ' • ° trust estates. 
 
 in trust for B. and his heirs, the trust of the 
 term will, notwithstanding, be personal es- 
 tate in the cestuique trust, and will conse- 
 quently devolve upon his executors f . The 
 converse of this rule is also adopted. The 
 equitable interest in a freehold estate, cannot 
 be so framed, as to make it go perpetually to 
 the executor of cestuique trust, as personal 
 estate. 
 
 In the case of trusts executed, words of Estat estaii. 
 limitation, which if applied to real property 
 would create an estate tail, will also create 
 an estate tail in the trust or beneficial in- 
 terest 8 ; and, therefore, the rule of law will 
 prevail, although the intention of a testator, 
 in the case of wills, may be inferred to the 
 contrary, by his expressly restraining the 
 
 f See 1 Vern. 164. and " made according to the 
 
 Hunt v. Baker, 2 Freem. " construction of limita- 
 
 62. " tions of a legal estate." 
 
 e " In limitations of a Per lord Hardwicke, in 
 
 " trust either of real or Garth v. Baldwin, 2 Ves. 
 
 " personal estate, the con- 646. 655. 
 " struction ought to be
 
 estates 
 
 270 Of Trusts since the [chap. hi. 
 
 Sect. in. equitable estate of the first taker, to an es- 
 in what cases ^^ e f or |jf e h or j^y ma ki n or it unimpeachable 
 
 trusts are go- * » *-> r 
 
 verned by, or f or was te i , or by using: the word issue k , in- 
 
 similar to, the J ° 
 
 laws relative to s tead of the word heirs of the body, or by 
 
 legal estates. ^ 
 
 granting to the first taker a power of leas- 
 ing 1 , or by introducing a limitation to trus- 
 tees to preserve contingent remainders" 1 , or 
 by adding after a limitation " to the heirs 
 " male of the body" of the first taker, words, 
 which denote an intention, that such heirs 
 male should take in succession according to 
 seniority of age". 
 
 Descent of trust (2.) Trust estates descend according to the 
 rule of descents of legal estates ; and, there- 
 fore, in the case of gavelkind and borough- 
 english lands, trusts affecting them will de- 
 scend according to the descendible quality of 
 the tenure . There shall be a possessio fra- 
 tris ? of a trust ; and where the ultimate li- 
 mitation of a trust is to the right heirs of the 
 
 h Shaw v. Weigh, 1 Eq. Brandon v. Robinson, 18 
 
 Ab.184.pl. 28. 8Vin.257. Ves. 429. An equitable te- 
 
 pl. 25, 26. S. C. nancy for life must be sub- 
 
 1 Ibid. Jones v. Morgan, ject to all the incidents of a 
 
 1 Bro. Cha. Ca. 206. legal estate,notwithstauding 
 
 k Shaw v. Weigh, supra, any restriction upon the te- 
 
 1 Bale v. Coleman, 1 P. nant for life, against alien- 
 
 W. 142. ation, not amounting to a 
 
 m Jones v. Morgan, supra, limitation over. 
 
 Poole v. Poole, 3 Bos. and ° 2 Ves. 304. in the case 
 
 Pull. 620. Wright v. Pear- of Fawcet v. Lowther, 
 
 son, Amb. 358. and S. C. Jones v. Rensbie, 22 Vin. 
 
 Fearne. Austin v. Tavlor, 185. pi. 7. 
 
 Amb. 376. p 2 P. W. 713. 736. 
 
 n Ibid. See the case of
 
 chap, in.] Stat. 27 H. 8. c. 10. 271 
 
 person creating or conveying it, the heirs Sect. in. 
 will take by descent, notwithstanding the J^^ 
 grantor has no particular estate". ™£ ££ 
 
 laws relative to 
 legal estates. 
 
 (3.) Not only a trust in esse, but the pos- 
 
 ..._.- , . , • .j, Trust estates 
 
 sibility of a trust, may be assigned in equity ; may be con- 
 and it has been determined*, that a husband veye 
 may dispose of the trust of a term, to which 
 he is entitled in right of his wife; and it 
 should seem, that in case the husband shall 
 survive his wife before such disposition made 
 by him, he will be entitled to the trust upon 
 the survivorship, without taking out letters 
 of administration to the wife*. 
 
 (4.) A trust may also be devised", with the Trust estates 
 solemnities required by the statute of frauds may 
 upon the devise of legal estates" ; and as co- 
 pyhold estates are not within that statute, 
 trusts declared upon them will pass by an un- 
 attested will w . 
 
 q Godolphinv.Abington, 'Pale v. Michell, 2 Eq. 
 
 2 Atk. 57. Watk. Descent, Ab. 138. pi. 4. 
 
 264. See ante 64. note a. u See Fearne, 539. 1 
 
 as to uses before the statute. Cha. Ca. 211. in Cornbury 
 
 r Warmstrey v. Tanfield, v. Middleton. 2 Vern. 680. 
 
 1 Cha. Rep. 29. 1 Cha. in Greenhill v. Greenhill. 
 Ca. 8. See cases collected v Wagstaff v. Wagstaff, 2 
 in note 21 Vin. 516. pi. 1. Cox's P. W. 258. note 1. 
 
 8 Tudor v. Sarayne, 2 Adlington v. Can, 3 Atk. 
 
 Vern. 270. Bates v. Dandy, 151. 
 
 2 Atk. 208. note 1. w Tuffnell v. Page, 2 Atk. 
 
 37. note 2. last edit.
 
 272 
 
 Sect. III. 
 
 In what cases 
 trusts arc go- 
 verned by, or 
 similar to, the 
 laws relative to 
 legal estates. 
 
 Execution may 
 issue upon the 
 trust estate. 
 
 Of Trusts since the [chap, i ii 
 
 (5.) By virtue of the statute of frauds, 
 trust estates are made liable to executions 
 upon judgments, statutes, and recognizances*. 
 
 Upon the construction of this statute it 
 has been determined, that it does not autho- 
 rize, either the trust y or the equity of re- 
 demption 55 of a term of years, to be taken in 
 execution, under a fieri facias at the suit of a 
 judgment creditor. 
 
 The ground upon which the court of 
 King's Bench in Scott v. Scholey, 8 East, 467. 
 determined, that the trust of a term of years 
 could not be taken in execution upon a fieri 
 facias, appears to have been, that the words 
 " lands, tenements, fyc" in the statute of 
 
 x 29 Car. 2. c. 3. s. 10. 
 " it shall be lawful for every 
 " sheriff or other officer to 
 "whom any writ or pre- 
 " cept is or shall be direct- 
 " ed, at the suit of any per- 
 " son or persons, of, for, 
 " and upon any judgment, 
 " statute, or recognizance 
 " hereafter to be made or 
 '.* had, to do, make, and de- 
 " liver execution unto the 
 " party in that behalf suing 
 " of all such lands, tene- 
 " ments, rectories, tithes, 
 " rents and hereditaments, 
 " as any other person or 
 " persons be in any manner 
 " of wise seised or pos- 
 " sessed, or hereafter shall 
 " be seised or possessed, in 
 
 " trust for him against whom 
 " execution is so sued, like 
 " as the sheriff or other of- 
 " ficer might or ought to 
 " have done, if the said 
 " party against whom exe- 
 " cution hereafter shall be 
 " so sued, had been seised 
 " of such lands, tenements, 
 " rectories, tithes, rents, or 
 " other hereditaments of 
 " such estate as they be 
 " seised of in trust for him 
 " at the time of the said 
 " execution sued." 
 
 J Scott v. Scholey, 8 
 East, 467. 
 
 z King v. Marissal, 3 Atk. 
 192. Burden v. Kennedy, 
 3 Atk. 739. Lysterv. Dol- 
 land, 1 Ves. jun. 431.
 
 chap, in.] Stat. 27 H. 8. c. 10. 273 
 
 frauds, were considered by the court as not Sect. in. 
 extending to leases for years, which are a In what cascs 
 
 ° " trusts are go- 
 
 mere chattel interest saleable at common law verned b y» or 
 
 similar to, the 
 
 under a venditioni exponas. Lord Ellenbo- lawsrelativeto 
 
 legal estates. 
 
 rough observes, f* Lord Thurlow was at last 
 " of opinion, that an equity of redemption of 
 " a term could not be taken in execution ; 
 " though at first, under an apprehension that 
 '•the 10th sect, of the statute of frauds ap- 
 " plied to such a case, he had inclined to 
 " hold otherwise. But the very silence of 
 " that statute, which, while it expressly iji- 
 " troduces a new provision in respect to lands 
 " and tenements held in trust for the person, 
 u against whom an execution is sued, says 
 " nothing as to trusts of chattel interests, af- 
 " fords a strong argument, that those in- 
 " terests were meant to continue in the same 
 " situation and plight in respect of executions, 
 " in which both freehold and leasehold trust 
 "interests equally stood prior to the passing 
 " of that statute." 
 
 So it was determined in Rose v. Bartlett, 
 Cro. Car. 292. that, when a person having 
 freehold and leasehold estates, devised all his 
 " lands and tenements" the leaseholds did not 
 pass. 
 
 In the late case, Doe dem. Hull v. Green- 
 hill, 4 Barnw. and Aid. 684. a question arose, 
 whether an ejectment against the cestuique 
 
 VOL. I. t
 
 274 Of Trusts since the [chap. hi. 
 
 Sect. hi. trust of a term of years could be supported 
 in what cases ^y tj )e plantiff, who claimed uuder a iudsr- 
 
 trusts are go- " r t ^ ° 
 
 vemed by, or me nt recovered against the defendant, and a 
 
 similar to, the 
 
 laws relative to wr it f eligit, and inquisition thereon taken 
 
 legal estates. . 
 
 and returned ; but it does not appear from 
 the report, that the question, whether the 
 statute extended to the equitable interest of a 
 term of years, was particularly discussed ; 
 and it may be proper here to mention, that 
 the statute of Westminster (13 Edw. 1. c. 18.) 
 allows the plaintiff in an action of debt or 
 for damages, either to have a writ of fieri 
 facias directed to the sheriff, " or that the 
 "sheriff shall deliver to him all the chattels 
 " of the debtor (saving only his oxen and 
 "beasts of his plough) and the one half of 
 " his lands, until the debt be levied upon a 
 " reasonable price or extent :" and upon these 
 words, medietatem terra? suce, says sir Edward 
 Coke (2 Inst. 396.), "the sheriff hath extend- 
 "ed a term of years." This seems to be an 
 authority, that the word, "lands" in the 
 statute of Westminster 2. extends to leases 
 for years 3 . 
 
 a In sir Gerard Fleet- " have other elegit of a 
 
 wood's case, 8 Co. 171. a. " term of years or goods: 
 
 it is said to be at the elec- " which expression seems 
 
 tion of the sheriff to extend "to distinguish between 
 
 or sell a lease: and in Hun- " lands and leases^ Upon 
 
 gry v. Fry, Moor, 341. pi. this subject, see Dyer, 363. 
 
 462. " after an elegit, and a. pi. 24. Palmer's case, 4 
 
 " execution thereupon of Co. 74. and Rex v. Raw- 
 
 '' lands, the plaintiff may lins, Bunb. 71.
 
 chap, in.] Stat. 27 H. 8. c. 10. 275 
 
 In the case of Lyster v. Dolland a , lord Sect. in. 
 Thurlow is reported to have said, "If this In what cases 
 
 1 ' trusts are go- 
 
 5* had been a mortffa^e in fee, he could only v . er ", ed hy ' , or 
 
 ° ^ J similar to, the 
 
 "have extended it to hold quousque." laws relative to 
 
 ■* ■* legal estates. 
 
 But it seems impossible to contend, that 
 under the statute of frauds the sheriff can 
 deliver an equity of redemption upon an ex- 
 ecution in a suit against the mortgagor : and 
 in the case of Plunkett v. Penson b , lord Hard- 
 wicke is stated to have said, " I should be 
 " glad to be informed, whether there is any 
 " instance, where an equity of redemption 
 " has ever been held to be liable to the exe- 
 " cution of a bond creditor in the life of the 
 "mortgagor:" to which the counsel in the 
 case made answer, they could not recollect 
 any instance, where it had been so held. 
 
 From the case of Hunt v. Coles, Com. 
 Rep. 226. it appears, that under this statute, 
 a judgment is not alien upon the trust es- 
 tate; and, therefore, that a purchaser for a 
 valuable consideration and without notice, 
 obtaining a conveyance of the legal estate 
 from the trustee, and of the equitable interest 
 from the cestuique trust, will not be bound 
 by a judgment previously entered up against 
 the cestuique trust. 
 
 a 1 Ves. J. 431. b 2Atk. 290. 
 
 T 2
 
 276 Of Trusts since the [chap. hi. 
 
 Sect. hi. (Q.) Previously to the statute of frauds, 
 
 in what casts 29 Car. 2. c. 3., the trust of an estate in fee- 
 trusts are go- 
 
 shnple was not assets at law, or in equity, 
 in the hands of the heir of the cestuique 
 trust to satisfy bond debts b ; but by the 
 10th section of that statute, the trust is 
 now made legal assets d . An equity of re- 
 demption is not considered a trust within 
 the statute; and therefore, it has been de- 
 termined to be equitable, and not legal as- 
 sets 6 . 
 
 verned by, or 
 similar to, the 
 laws relative to 
 legal estates. 
 
 Assets. 
 
 It seems, that both previously to and 
 since the statute of frauds, the trust of a 
 term of years was considered as equitable as- 
 sets in the hands of the executory and the 
 statute does not now make it legal assets 5 ; 
 
 b See Bennett and Brown- 
 low, Cha. Ca. 12. 3 Vin. 
 142. pi. 10, 11. and the 
 cases collected in the notes. 
 
 c "And if any cestuique 
 " trust hereafter shall die, 
 " leaving a trust in fee- 
 " simple to descend to his 
 " heir, then and in every 
 " such case, such trust 
 " shall be deemed and 
 " taken, and is hereby de- 
 " clared to be assets by de- 
 " scent, and the heir shall 
 " be liable to, and charge- 
 " able with, the obligation 
 " of his ancestors for and by 
 " reason of such assets, as 
 "fully and amply as he might 
 " or ought to have been, 
 " if the estate in law had 
 
 " descended to him in pos- 
 " session in like manner 
 " as the trust descended, 
 " any law, custom, or 
 " usage, to the contrary 
 " in any wise uotwithstand- 
 
 " in g" 
 
 d King v. Ballet, 2 Vern. 
 248. See Robinson v. Tong, 
 3 Vin. 145. pi. 28. as to 
 the trust of an advowson in 
 gross. 
 
 e Plunket v. Penson, 2 
 Atk. 290. 
 
 f 3 Cha. Rep. 37. in At- 
 torney-general v. Sands, 
 21 Car. 1. Sir Chas. Cox's 
 case, 3 P. W. 341. Hart- 
 well v. Chitters, Amb. 308. 
 
 * King v. Ballet, supra.
 
 chap, ill.] Stat. 27 H. 8. c. 10. 277 
 
 except in the case of a term of years attend- Sect - iil 
 ant upon the inheritance, in which case the J° T bat casea 
 
 * ' trusts are go- 
 
 term becomes consolidated in equity with the v . er " ed b J» ° r 
 
 1 * similar to, the 
 
 freehold 11 . ' aws re ' at > ve to 
 
 legal estates. 
 
 (7.) It is apparent from the necessity, Trusts subject 
 
 .. . -. /./>-ii t0 extents from 
 
 which produced the statute of frauds, that the crown. 
 the legal estate vested in the trustee, could 
 not be taken in execution upon a judgment 
 against the cestuique trust : but it seems, that 
 the lands of cestuique trust were always held 
 liable to an extent for a debt due to the king 1 . 
 Sir Matthew Hale observes, that this rule 
 was adopted "per cursum scaccarii, which 
 makes the law in such casesV' 
 
 The statute of 13th Eliz. c. 4. s. 5. which 
 relates to accountants to the crown, extends 
 to trusts by express words ; and not only a 
 trust, but an equity of redemption 1 , may be 
 sold under an extent issued against an ac- 
 countant, by virtue of the statute of the 25 
 Geo. 3. c. 35., which, in order to facilitate 
 the payment of debts due to the crown, 
 authorizes the Court of Exchequer, in a 
 
 h 2Cha. Ca. 152. in Rat- rious cases collected in the 
 
 cliff v. Graves, 35 Car. 2. notes. 
 This rule, which does not ' Walter de Chirton's 
 
 require the aid of authority case, Dy. 160. a. 24 Edw. 
 
 to support it, was, however, 3. 16 Vin. 521. K. pi. 1. 
 
 formerly subject to contro- notes, 
 versy. See 3 Vin. 143, k Hard. 495. 
 
 144. pi. 16. 20. and the va- ' The King v. De la 
 
 Motte, Forest, 162. 
 
 t3
 
 278 
 
 Of Trusts since the [chap, hi 
 
 Sect. III. 
 
 In what cases 
 trusts are go- 
 verned by, or 
 similar to, the 
 laws relative to 
 legal estates. 
 
 Forfeiture for 
 treason. 
 
 summary way, to direct the extended lands 
 of an accountant to be sold. 
 
 (8.) At the common law, a trust in fee- 
 simple or in tail, was not forfeited to the 
 crown by the attainder of cestuique trust for 
 treason™ ; but the statute 33 H. 8. c. 20. s. 2. 
 (which extends to all manner of treasons"), 
 includes trust estates , and also extends to 
 an equity of redemption . 
 
 The ground of this latter decision is, that 
 the statute of treasons above noticed, has the 
 word conditions; so, that if a mortgage in 
 fee be made subject to a condition of re-entry, 
 and the mortgagor commits treason before 
 the day of payment, the king, by the for- 
 feiture, shall have the benefit of the condi- 
 tion ; and if the estate shall become abso- 
 lute in the mortgagee in consequence of the 
 non-payment of the mortgage-money, an 
 equity attaches upon the mortgagee, in favour 
 of the crown upon the same principle, that 
 it would have attached in favour of the mort- 
 gagor, in case he had not committed treason. 
 
 It is said, that a cestuique trust of a term 
 of years forfeits it for felony, and upon an 
 outlawry in a personal action* 1 . 
 
 m See Jenkins, 
 Hard. 495. 
 
 n 3 Co. Rep. 11. a. 
 " Hard. 495. 
 
 190. p Attorney-general v. 
 
 Crofts, 4 Bro. P. C. 136. 
 
 q Earl of Somerset's 
 case, Hob. 214. Jenk. 190. 
 Hard. 490.
 
 chap, in.] Stat. 27 H. 8. c. 10. 279 
 
 (9.) In the marquis of Winchester's case r , Sect - iil 
 it is said, " that although an use were an he- } n vvhat cases 
 
 ~ trusts are go- 
 
 " reditament (for there shall be a poss essio ™ r ?, ed *'• ? r 
 " fratris of it), yet, by the general words f ! aws , relative t0 
 
 " ' " " ° legal estates. 
 
 " all hereditaments, an use was not given to 
 
 ~ Equitable es- 
 
 " the king by an act of attainder." It has tates considered 
 
 . ' as ' e g a '> in tne 
 
 however, been determined in the modern case construction of 
 
 of Shrapnel v. Vernon 3 , that an equity of mem. 
 
 redemption was within the 8th section of 17 
 
 Geo. 3. c. 26., which does not comprise 
 
 either the word trust or condition. In that 
 
 case lord Thurlow said, " In many acts of 
 
 " parliament an equitable estate is considered 
 
 " the same, as if it were a legal estate ; the 
 
 " words, seised in law or in equity, in the 
 
 " qualification act, show, that the word seised 
 
 "is applicable to both." He adds, "The 
 
 " only question is, whether the word seisin 
 
 " will extend to being seised of an estate in 
 
 " equity, which, unless I am mistaken in 
 
 " point of law, it will." 
 
 (10.) There may be a tenant by the cur- 
 tesy of a trust of inheritance 1 , unless the 
 husband is excluded by an express trust for 
 
 r 3 Co. 2. b. and see ibid. Amhurst v. Skinner, 12 
 10. b. East, 263. 
 
 • 2 Bro. Cha. Rep. 268. ' Watts v. Ball, 1 P. W. 
 
 and see also Tucker v. 108. Chaplin v. Chaplin, 
 Thurston, 17 Ves. 131. 3 P. W. 234. Casborne v. 
 
 Scarfe, 1 Atk. 603. 
 
 T 4
 
 280 
 
 Of Trusts since the [chap. hi. 
 
 sect. hi. the separate use of his wife ; as where lands 
 in what cases were devised to trustees and their heirs, in 
 
 trusts are go- 7 
 
 vemedby, or trust for the separate use of the testator's 
 
 similar to, the * 
 
 laws relative to daughter during her life, and after her de- 
 
 legal estates. ° n 
 
 Tenant b the Cease > ^ 0Y SUCll perSOllS to wllOHl she should 
 
 curtesy. devise the same; lord Hardwicke decreed, 
 
 that the husband should not have his cur- 
 tesy". 
 
 Statutes of li- 
 mitations. 
 
 (11.) The statutes of limitations, 32 H. 8. 
 c. 2. and 21 Jac. 1. c. 16., expressly extend 
 to actions and proceedings in courts of law ; 
 and, consequently, they do not in terms 
 apply to suits in equity. But, as the Master 
 of the Rolls, in Beckford v. Wade v , ob- 
 serves, " Courts of equity, by their own 
 " rules, independently of any statutes of limit- 
 " ation, give great effect to length of time ; 
 " and they refer frequently to the statutes of 
 " limitation for no other purpose, than as 
 " furnishing a convenient measure for the 
 " length of time, that ought to operate as a 
 " bar, in equity, of any particular demand." 
 
 So in Llewellin v. Mackworth mentioned 
 in the note to 15 Vin. 125. pi. 1. lord Hard- 
 wicke observes, " The rule in this court, that 
 " the statute of limitations does not bar a 
 
 u Hearle v. Greenbank, Smith v. Clay, 3 Bro. Cha. 
 
 3Atk.695.7lG. Ca. 639. in note. Amb. 
 
 * 17 Ves. 87. 97. 15 Ves. 645. S. C. 
 496. See upon this head,
 
 chap, in.] Stat. 27 H. 8. c. 10. 281 
 
 " trust estate, holds only as between cestuique Sect - vol 
 "trust and trustee, not between cestuique Inwl,atca9es 
 
 1 trusts are go- 
 
 " trust and trustee on one side, and strangers yerned b y> or 
 
 ° similar to, the 
 
 " on the other ; for that would be to make laws relative to 
 
 legal estates. 
 
 " the statute of no force at all ; because 
 " there is hardly any estate of consequence 
 " without such trust, and so the act would 
 " never take place. Therefore where a ces- 
 " tuique trust and his trustee are both out of 
 " possession for the time limited, the party 
 " in possession has a good bar against them 
 " both." 
 
 In the late case of the marquis of Chol- 
 mondeley v. lord Clinton, in the House of 
 Lords (2 Jacob and Walk. 192.), there is an 
 important observation by lord Redesdale; it Writs of right 
 
 .. . , and formedon. 
 
 had been argued in that case, that the mar- 
 quis of Cholmondeley might at law have 
 had a writ of right ; but his lordship remark- 
 ed, that, that was a writ to which particular 
 privileges were allowed, but that courts of 
 equity never regarded that writ, or writs of 
 formedon, or others of the same nature ; that 
 they had always considered the provision in 
 the statute of James, which applied to rights 
 and titles of entry, and in which the period 
 of limitation was twenty years, as that, by 
 which they were bound, and it was that, 
 upon which they had constantly acted.
 
 282 Of Trusts since the [chap. hi. 
 
 Sect. hi. Length of time and adverse possession 
 
 in what cases w jjj j j analogy to the statutes of limita- 
 
 trusts are go- ' » ~ J 
 
 vernedby.or \\ ou k ar ^ e e q U it a ble owner of a term of 
 
 similar to, the * 1 
 
 jaws relative to vears assigned to attend the inheritance. If 
 
 legal estates. ^ ° 
 
 an estate be purchased by A. B., and an out- 
 standing term be assigned to C. D., in trust 
 for A. B. his heirs and assigns, and to at- 
 tend the inheritance, the term is identified 
 with, and follows, the possession. A. B. takes 
 possession not as cestuique trust of the term, 
 but as owner of the freehold and inheritance 
 of the estate, subject to the term; and if 
 the inheritance or freehold, subject to the 
 outstanding term assigned previously to the 
 controverted rights, to attend the inherit- 
 ance, be contested between two claimants, 
 the question is tried at law in respect of 
 the freehold, independently of the outstand- 
 ing term ; and the preliminary step always 
 has been by a bill in equity to prevent 
 the term from being set up against, or in 
 favour of, either of the claimants : and I 
 do not know of an instance, in which a bill 
 under the above circumstances, has been 
 filed against the trustee of the term for the 
 purpose of constituting him a trustee against 
 the person in possession of the estate, who 
 would have been the owner of the freehold at 
 law, in case no term had subsisted. In 
 Llewellin v. Mackworth before mentioned, 
 and as reported by Barnardiston, 449. lord
 
 chap, in.] Stat. 27 H. 8. c. 10. 283 
 
 Hard vvicke observes, "There is hardly any s *ct.iii. 
 " ancient family, but there are long terms in In * hatcases 
 
 J 7 ~ trusts are go- 
 
 "the hands of trustees, and if strangers ver " ed ^'° r 
 
 o similar to, the 
 
 "might be allowed to lay claim to them ! aws , relative t0 
 
 ° " legal estates. 
 
 " after any length of time, it might be greatly 
 "inconvenient." 
 
 The reasoning, with respect to an estate, 
 subject to a term assigned to attend the in- 
 heritance, will apply to an estate, subject to 
 a term of years, for securing to a mortgagee 
 a sum of money. The right to redeem the 
 mortgage will follow the right to the rever- 
 sion in fee, expectant on the mortgage term ; 
 for the person in possession, unless precluded 
 by positive contract, does not claim the estate 
 as cestuique trust of the term, subject to the 
 mortgage, but as owner of the estate, subject 
 to the term, and the money secured by it. If 
 the person in possession insists upon his right 
 to the freehold underthestatuteof limitations, 
 and if that right is established at law, the 
 right to redeem the mortgage must neces- 
 sarily follow it. This point has been recently 
 settled in the case of the marquis of Chol- 
 mondeley v. lord Clinton; first by sir Thomas 
 Plumer in a very able argument*, and after- 
 wards by the House of Lords 5 . 
 
 (12.) Where the legal estate is vested in a Non-claim on 
 
 fines. 
 
 2 Jacob and Walker, 1. "Ibid. 190.
 
 234 Of Trusts since the [chap. hi. 
 
 Sect. hi. trustee in fee-simple, it appears, that non- 
 in what cases c ] a j m on a nne levied by a stranger having, 
 
 trusts are go- » ° °' 
 
 vemedby.or an( j C ontinuin2; in, the possession, will be a 
 
 similar to, the ... 
 
 laws relative to b ar to the original cestuique trust. In Willis 
 
 legal estates. 
 
 v. Shorrall, 1 Atk. 474. lord Hardwicke says, 
 " No doubt the rules of this court (Chancery) 
 " with relation to fines, have been taken from 
 " the rules at law, and the effect is the same 
 " with regard to equitable interests, if of 
 "such a nature, that turned into a legal in- 
 " terest, it would have been barred." So in 
 Wolstan v. Aston, Hard. 511., sir Matthew 
 Hale observes, that a fine with proclamations 
 according to the 4 Hen. 7. would, if levied 
 by a stranger, bar a trust. This principle of 
 construction has been adopted in many cases 3 . 
 
 The case of Basket v. Pierce is thus re- 
 ported, 1 Vern. 226. : A man, by his will, 
 devises his lands to trustees for ninety-nine 
 years, for the payment of his debts and lega- 
 cies, and afterwards, in case they should not 
 act and take upon them the trust within six 
 months after bis death, then he devised the 
 said lands to another and his heirs, in trust 
 to pay his debts and legacies, and afterwards 
 to A. in tail, remainder in tail to B. A. 
 
 • See Thynne v. Cary, Bagot, 1 Cha. Ca. 278. 2 
 
 sir William Jones, 416. Swanst. 603. from lord 
 
 Gifford'scase,lFreem.3ll. Nottingham's manuscripts. 
 
 Clifford v. Ashly, 1 Cha. Stapleton v. Sherrard, 2 
 
 Ca. 268. Salisbury v. Vern. 212.
 
 chap, in.] Stat. 27 H. 8. c. 10. 235 
 
 levies a fine, and dies without issue. Five sect.iii. 
 years pass, and non-claim. J^arVgT 
 
 verned by, or 
 similar to, the 
 
 The question was, whether the tine by ' aws , relat ! veto 
 
 T- ' J legal estates. 
 
 cestuique trust in tail, and non-claim, should 
 bar the remainder-man in tail ? And the 
 lord keeper was of opinion, that it should : 
 for equitable rights are as well to be barred 
 by Jines, as actions and titles at law. 
 
 It appears, however, that the point was 
 not expressly determined ; although the opi- 
 nion of the lord keeper has been considered 
 as an authority in subsequent cases. See 1 
 Eq. Abr. 256. and 9 Mod. 1 44. In the latter, 
 the case is cited in the following manner: 
 " The testator devised his lands to trustees 
 " for ninety-nine years, for the paymeut of 
 " his debts; and if they did not act, then he 
 " devised the lands to J. S. and his heirs, in 
 " trust to pay his debts ; and afterwards to 
 " A. B. in tail, remainder in tail to E. G. 
 "Afterwards A. B., who was the cestuique 
 " trust iii tail, levied a fine, and died with- 
 " out issue; and five years passed without 
 " any claim : it was decreed, that this fine 
 " and non-claim barred the remainder-man 
 " in tail ; for equitable rights are bound by 
 " fines, as well as actions and titles at law ; 
 " and though it was insisted for the plaintiff 
 " in that case, that the title of the remainder- 
 " man was not yet commenced, because the
 
 286 Of Trusts since the [chap. hi. 
 
 sect. in. « debts were not paid, and the term for 99 
 in what cases « vears was subsisting: and that the entire 
 
 trusts are go- J ° ' 
 
 vemed by, or « es t a t e a t law beinc: in the trustee, he ought 
 
 similar to, the _ 
 
 laws relative to t^ nav e entered; and that it was against 
 
 legal estates; 
 
 " equity for him to suffer the cestuique trust 
 " to be barred by a fine and non-claim 
 "through his default; yet the court was 
 "still of opinion, that the plaintiff was bar- 
 " red." 
 
 Notwithstanding the opinion of the lord 
 keeper in the case above mentioned, there 
 seems at present to be a diversity of opinion 
 upon the question, whether non-claim upon a 
 fine levied by cestuique trust for life or in tail, 
 can have any effect upon the equitable re- 
 mainder ; it being contended, that a fine by a 
 legal tenant for life or in tail, has effect upon 
 the remainder, in consequence of its displa- 
 cing or discontinuing such remainder; and 
 that a fine upon an equitable estate can 
 have no such operation. It is argued, that 
 there is no similarity of operation in a fine 
 acting on the legal estate for life or in tail, 
 and a fine acting upon an equitable estate to 
 the same extent. But I know of no case, 
 where the operation of fines at law and in 
 equity is similar. The fine of an equitable 
 tenant for life is absolutely void at law; and 
 then how can it bear any similarity of opera- 
 tion in equity ?
 
 chap, in.] Stat. 27 H. 8. c. 10. 287 
 
 It appears to me, that the system of equity, Sect - iil 
 with respect to the construction of fines, is J n Y hatcases 
 
 r ' trusts are go- 
 
 raised, not from any similarity of operation in verD . ed ^ ° r 
 
 J <i r similar to, the 
 
 fines at law and in equity, but as a rule of ! aws , relativet0 
 
 1 » * legal estates. 
 
 convenience, with a view to make the systems 
 of law and equity as analogous, as the nature 
 of the subjects will allow. It is a system 
 grounded on analogy, and not on similarity 
 of operation. To illustrate this it may be 
 said, that if A. an equitable tenant for life in 
 possession, levy a fine, and die, and five years 
 non-claim pass, the court of Chancery would 
 consider the person in remainder barred, 
 because the fine would have had that opera- 
 tion, if levied by tenant for life in possession 
 of the legal estate ; but if an equitable estate 
 be settled upon A. for life, with remainder to 
 B. for life, with remainder to C. in fee; and 
 if B. the tenant in remainder, should levy a 
 fine, and five years non-claim should pass 
 after the deaths of A. and B., the claim of C. 
 would not be barred ; because the fine would 
 not have barred, if levied by a tenant for life 
 in remainder of the legal estate. 
 
 The construction, that a fine by an equi- 
 table tenant for life does not create a for- 
 feiture, is an exception to a general rule, 
 springing from an obvious principle of justice. 
 Forfeitures are not favoured, either at law or 
 in equity ; and as an equitable fine is a mere 
 creature of Chancery, having no operation at
 
 Of Trusts since the [chap. hi. 
 
 all beyond what it receives from that court, 
 with a view to make the rules of law and 
 equity analogous, it would be a narrow view 
 laws relative to f the subject, which, in order to preserve 
 the analogy, should extend it to a forfeiture, 
 which the fine could not in fact create. 
 
 288 
 
 Sect. III. 
 
 In what cases 
 trusts are go- 
 verned by, or 
 similar to, the 
 
 Sect. IV. 
 
 IV. But the rule, that equity follows the 
 
 r , has its exceptions ; and in some instances 
 
 the peculiarity of trusts bears no analogy to 
 
 in what cases law, has its exceptions; and in some instances 
 
 trusts differ 
 from legal es- 
 
 the system of property at common law. 
 
 Dower. 
 
 Escheat 
 
 (1.) Although the trust of an estate of in- 
 heritance is subject to curtesy, it is not to 
 dower\ It must be admitted, that there is 
 an apparent inconsistency in this distinction; 
 but it was adopted from motives of conve- 
 nience, and not from principle. Purchasers 
 by the advice of conveyancers, who had 
 formed their opinion upon trusts from the 
 ancient use, having taken their conveyances 
 in the names of trustees for the purpose of 
 barring dower, the courts of equity protected 
 the purchaser at the expense of the wife's 
 equitable right b . 
 
 (2.) The trust of an inheritance will not 
 escheat to the lord upon the attainder of ces- 
 
 » Colt v. Colt, 1 Cha. 
 Rep. 254. Bottomley v. 
 Fairfax, Prec. Cha. 336. 
 Godwin v. Winsmore, .2 
 
 Atk. 525. Dixon v. Sa- 
 ville, 1 Bro. 326. 
 
 b Seel Wm. Black. 182.
 
 chap, in.] Slat. 27 H. 8. c. 10. 289 
 
 tuique trust for felony, or for want of heirs c ; Sect. iv. 
 because upon the attainder or death the trust in what cases 
 
 trusts differ 
 
 is absolutely determined. from legal es- 
 
 tates. 
 
 In King and Holland, cited in Hard. 
 436. and reported in Alleyne, 14. the case 
 was, that Holland had purchased a copy- 
 hold estate in fee, in trust for an alien ; 
 and upon office found, the King seized, to 
 have the profits answered to him : and per 
 cur. the trust was not forfeited, and an amo- 
 veas manum was granted. The reason for the 
 decision is stated to be, that the lord would 
 otherwise be prejudiced by losing his services 
 and fines. 
 
 In the case of outlawry in personal actions, 
 the king is at law entitled to the rents and 
 profits of the offender's real estate, although 
 he has no interest in the lands themselves d ; 
 and in King v. Holland, Style, 41., it is said, 
 the king shall not have the profits of the land 
 upon an outlawry against the cestuique use, 
 or cestuique trust. The reason of this seems 
 to be, that at law the profits belong to the 
 trustee, and the outlawry cannot affect him. 
 
 (3.) In the case of a direct trust, as where The effect of 
 an estate is conveyed to the use of A. and SinuSfe 
 
 and cestuique 
 trust. 
 c Burgess v. Wheate, 1 d Vi. T. Jones, 100. Pey- 
 
 Wra. Black. 123. Sandys' ton v. Ayliffe, 2 Vern. 
 
 case, Hard. 408. 312. 
 
 VOL. I. U
 
 290 Of Trusts since the [chap. hi. 
 
 Sbct.iv. } ns heirs, in trust for B. and his heirs, no time, 
 in what cases as between the trustee and cestuique trust, 
 
 trusts dilter x 
 
 from kgai cs- can operate as a bar to the equitable rights 
 of the latter d ; for between him and his trus- 
 tee, there is no adverse possession. If the 
 trustee acquires the actual possession, it is 
 still for the benefit of the cestuique trust. 
 The converse of this rule will also hold : for 
 the possession of the cestuique trust does not 
 divest the legal estate from the trustee. A 
 conveyance of the legal estate by the trustee, 
 or, as lord Hardwicke seems to have thought 6 , 
 a disseisin or actual ouster of the trustee by 
 the cestuique trust, may indeed be presumed 
 from length of possession, or, under particular 
 circumstances ; but time alone does not de- 
 stroy the legal interest of the trustee. 
 
 As to a mere constructive trust, there is 
 no doubt, that long acquiescence may bar the 
 equitable claims of the cestuique trust f ; and 
 it has often been determined, that a mort- 
 gagor may be deprived of his equity of re- 
 demption after a possession by the mortgagee 
 for 20 years without any claim, or assertion 
 of title, on the part of the mortgagor 15 . 
 
 '' Barn. 449. Towns- there cited. Townshencl 
 
 hend v. Townshend, 1 Bro. v. Townshend, 1 Bro. C. 
 
 C. C. 551. C. 551. See also 17 Ves. 
 
 ' 1 Ves. 435, 436. in 165. Chalmer v. Bradly, 
 
 lord Portsmouth v. lord 1 Jacob and W. 51. 
 Effingham. See ibid. 432. * 17 Ves. 99. Anon. 2 
 
 ' See 17 Ves. 97. and the Atk. 333. Aggas v. Pic- 
 case of Bonny v. Ridgard kerell, 3 Atk. 225. See
 
 chap, in.] Stat. 27 H. 8. c. 10. 291 
 
 In the case of Fen wick v. Reed, 1 Mer. sec t .iv 
 114. 124, 125. lord Eldon has observed, in what cases 
 
 • trusts differ 
 
 that it is clearly settled, that length or time from legal es- 
 in the case of the vivum vadium, or Welch 
 mortgage, would be no bar to redemption, 
 unless it were proved, that the party had 
 held over for the space of 20 years after the 
 debt was fully paid ; and that length of time, 
 under such circumstances, might be set up 
 as a bar in the case of a Welch mortgage, as 
 in the case of an ordinary mortgage. 
 
 (4.) A fine levied by a trustee cannot pre- of a fine and 
 judice the equitable interest of his cestuique nonc 
 trust, unless it be levied to a purchaser with- 
 out notice 11 ; and as cestuique trust, en- 
 titled to the equitable inheritance, is con- 
 sidered at law merely as tenant at will to his 
 trustee, a fine levied by him will not divest, 
 or prejudice, the legal estate 1 . 
 
 But where a term of years is assigned to a 
 trustee to attend the inheritance, and the 
 owner of the inheritance conveys by fine to a 
 purchaser without notice of the term, it is 
 said, that the non-claim upon the fine will 
 bar the legal interest in the term k . It is 
 
 Lake v. Thomas, 3 Ves. 17. b See Gilb. Cha. 62. 
 
 See Hodle v. Healey, 1 ' See earl of Pomfrct, v. 
 
 Ves. aud B. 536. Cooper, lord Windsor, 2 Ves. 472. 
 
 1. Whiting v. White, Reeks 481 . 
 
 v. Postlethwaite, Cooper, k Ischam v. Morris, as 
 
 101. Barron v, Martin, eiled 2 Vent. 329. 3 Bac. 
 
 Coop. 189. Ab. 448. 
 
 u 2
 
 '292 
 
 Of Trusts since the [chap, in 
 
 Sbct. iv. clear, however, that when the fine is levied 
 in what cases to the use of the conuzor, or indeed to a pur- 
 
 trusts differ 
 
 from legal es- chaser, who takes an assignment of the out- 
 standing term to a trustee named by himself, 
 or where the term is antecedently charged, by 
 way of security, with payment of a sum of 
 money, the legal estate vested in the trustee 
 would not be affected by the fine 1 . 
 
 Terms attend- 
 ant upon the 
 inheritance. 
 
 C£sz~J<--* r * < ' 
 
 (5.) Although the trust of a term of years 
 in gross cannot be so limited, as to make it 
 descendible as real estate; yet when the ces- 
 tuique trust of the term is also the beneficial 
 owner of the immediate inheritance in fee- 
 simple, the term becomes consolidated with, 
 or attendant upon, the inheritance. If the 
 legal interest in a term of years becomes 
 vested in the person legally entitled to the 
 immediate revisionary freehold, the term 
 becomes merged at law by the union : and 
 by analogy to this rule, the Court of Chan- 
 cery has determined, that where the owner of 
 the legal estate of inheritance is entitled to 
 the equitable interest in a term of years, of 
 which the legal estate is vested in a trustee, 
 and tht term of years, if legally vested in the 
 owner, and not in his trustee, would at law 
 have become merged, the equitable interest in 
 the term will become consolidated with the 
 
 1 The reader will rind all " Leases and Terms for 
 the cases upon these points " Years," (Q.) 3 vol. 448.. 
 collected in Bac. Ah. tit.
 
 tates. 
 
 chap, in.] Stat. 27 H. 8. c. 10. 293 
 
 inheritance, aud will follow the limitations of sect. iv. 
 it m : or, to use the expression of sir Matthew in what cases 
 
 ' ' \ . trusts differ 
 
 Hale", the equitable interest in the term " is from legal es- 
 " no more than a shadow, an accessory" to 
 the inheritance. It will belong to the heir or 
 devisee"; it will be real assets' 1 ; it will, as 
 against the heir q or assignees of a bankrupt', 
 be subject to dower, and for the same reason 
 to curtesy; it will not be forfeited for the 
 felony of cestuique trust ; and it will not pass 
 by a will, not attested by three witnesses 4 . 
 
 A term may become attendant upon the 
 inheritance, without any express declaration 
 for that purpose, either where the legal in- 
 terest in the term is vested in the trustee, and 
 the legal freehold in the owner of the in- 
 heritance, or where the owner is beneficially 
 or equitably entitled to the inheritance, and 
 is legally possessed of the term, or where the 
 legal estate, both of the term and the inhe- 
 ritance, is vested in trustees". 
 
 But although a term may become attend- 
 ant upon the inheritance, the beneficial owner 
 
 m Bestv. Stamford, Prec. s Attorney-general v. 
 
 Cha. 252. 2 Freem. 283. Sandys, Hard. 488. 3 
 
 S. C. Cha.'Rep. 33. 
 
 "Hard. 494. 'Whitchurch v. Whit- 
 
 ° 3 Cha. Rep. 37. church, 2 P. W. 236. 
 
 p Ante, 276, 277. u See Cooke v. Cooke, 
 
 q Wray v. Williams, Prec. 2 Atk. 67. and notes to the 
 
 Cha. 151. 1P.W.137. last edition. Collect. Jur. 
 
 r 9 Vin. 227. pi. 60. 273. 
 Squire v. Compton. 
 
 U 3
 
 Sect. IV. 
 
 In «bat cases 
 trusts differ 
 from legal es- 
 tates. 
 
 Of Trusts since the [chap. hi. 
 
 may destroy the equitable union". " A trust 
 " of a term, thatr ollows the inheritance, may 
 " be resembled to a box of charters, which 
 " shall go to the heir with the lands ; but 
 " if the owner grant them over, then they 
 '' shall go to the executors of the grantee"." 
 
 I have already stated, that when the equi- 
 table interest in the term is vested in the per- 
 son, who is entitled to the immediate rever- 
 sion in fee-simple, it is not necessary, that 
 there should be an express declaration to 
 make the term attendant upon the inherit- 
 ance'. The consolidation of the equitable 
 interests arises from a rule of equity adopted 
 for the protection of real property. It is dif- 
 ficult therefore to understand the ground, 
 upon which the case of Scott v. Fenhouillet 7 
 is said to have been determined. In that case, 
 there appears to have been a legal interest of 
 a few days dividing the term of years, upon 
 which the question arose, from the inherit- 
 ance; so that if the legal interests of that 
 term and of the inheritance had been united 
 in one person, there would not have been a 
 merger at law, on account of the intervening 
 term ; and lord Thurlow is reported to have 
 said, that whether the term would, or would 
 
 • Hayter v. Rod, 1 P. 
 W. 376. 1 Term Rep. 770. 
 x Hard. 496. 
 >See Tiffin v. Tiffin, 1 
 
 Vern. 1. Dowse v. Deri- 
 vall, ibid. 104. Goodright 
 v. Sales. 2 Wils. 329. 
 z 1 Bro. Cha. Ca. 69.
 
 chap, in.] Stat. 27 H. 8. c. 10. 295 
 
 not, merge, an express declaration would Sect - iv - 
 make it attendant. Now if, in that case, the £■ ?** ,f ses 
 
 ' trusts differ 
 
 owner of the inheritance was entitled to the from le e al es - 
 
 tates. 
 
 beneficial interest in the intervening, as well 
 as in the other term, then he had a right to 
 direct an assignment of both ; and conse- 
 quently, as he might, in that case, have 
 caused the merger of them at law, the equi- 
 table interests must, according to the rule just 
 noticed, have become attendant upon the 
 inheritance, without the necessity of an ex- 
 press declaration. But if the beneficial, as 
 well as the legal interest, in the intervening 
 term, was outstanding in a third person, I am 
 not aware of any rule of construction, upon 
 which it can be admitted, that the express 
 declaration of the parties could make the 
 term attendant. Mr. Fearne a , in considering 
 this case of Scott v. Fenhouillet, expressly 
 states it to be his opinion, that, if there had 
 been such intervening term, the declaration 
 of the trust of the term to attend, could not 
 have made it so : and his opinion was, no 
 doubt, grounded upon the principles, which I 
 have already stated ; that the trust of a term, 
 being governed by the same rules, as the limit- 
 ation of the term itself at law b , the parties 
 cannot make it descendible, as real property, 
 to the heir, except in the particular case, 
 where, by analogy to the doctrine of merger 
 
 a 2 Col. Jur. N° 5. b See 1 Vern. 164. 
 
 U 4
 
 296 
 
 Sect. IV. 
 
 In what cases 
 trusts differ 
 from legal es- 
 tates. 
 
 Of Trusts since the [chap. hi. 
 
 at law, the courts of equity consolidate the 
 equitable interest of the term with the in- 
 heritance. The author of the Treatise of 
 Equity has properly observed (2 vol. 106.), 
 " that a term attendant becomes in gross, 
 " when it is divided from the inheritance by 
 " different limitations. The trusts of a term 
 " in gross therefore can be limited no other- 
 " wise in equity, than the estate of a term in 
 " gross can be devised in law ; for they are 
 " not for setting a rule of property in Chan- 
 u eery, other than that, which is the rule of 
 '* property at law.'' 
 
 It is probable, therefore, from the confused 
 statement of the case of Scott v. Fenhouillet 
 in Brown, that lord Thurlow's words are not 
 correctly reported ; for considering them as 
 an authority, the doctrine, subversive of for- 
 mer principles, would be practically import- 
 ant in its application. Cases may be sug- 
 gested : for instance, suppose an estate, sub- 
 ject to a beneficial lease, is settled upon A. 
 for life, with remainder to his first and 
 other sons successively in tail, with remain- 
 ders over, with remainder to B. in fee : and 
 that B., having this remote reversion, pur- 
 chases or acquires the prior lease, or term of 
 years; if B., by any declaration, can make 
 this term, or lease, attendant upon his rever- 
 sionary inheritance, he may consequently
 
 CHAP. III.] Slat. 27 H. 8. c. 10. 297 
 
 convert it in equity into real, instead of per- Sect * iv - 
 sonal, assets. This isindeed an extreme case ; JjjJJ-SJ 81 
 but in principle there can be no difference, [^ legal cs " 
 whether the inheritance is divided from the 
 term by an intervening interest often days, 
 or of any greater term, or estate. If there 
 is any difference in the extent of the inter- 
 vening estate, what is the measure of it? 
 Where is the boundary to be fixed ? 
 
 It remains to be observed, that although a 
 term be attendant in equity upon the inherit- 
 ance, it is at law always considered as a term 
 in gross : and therefore a person purchasing 
 the inheritance, and taking an assignment of 
 a satisfied term in the name of a trustee, will, 
 by means of the term, protect himself against 
 intervening incumbrances, of which he has 
 no notice , and against the dower of the 
 vendor's wife, notwithstanding he has notice 
 of it d . But in these cases, it is necessarv, 
 that the purchaser should acquire the actual 
 assignment of the term to his trustee 6 . 
 
 c See Willoughby v. Wil- Sugden, Vend. 536., a pur- 
 
 loughby, 1 Term Rep. 763. chaser was not allowed to 
 
 Goodtitle v. Jones, 7 Term avail himself of the protec- 
 
 Rep. 47. And though he tion of a term against a debt 
 
 purchased in the inheritance due to the crown, 
 
 after he had notice of the d Wynn v. Williams, 5 
 
 second mortgage. Marsh Ves. 130. 134. 
 
 y. Lee, 2 Vent. 339. But e Maundrell v. Maun- 
 
 in the case of the King v. drell, 7 Ves. 567. 10 Ves. 
 
 Smith, the judgment of 246. 
 which is reported by Mr.
 
 298 Of Trusts since the [chap. hi. 
 
 sect. iv. pj) Notwithstanding the words of limita- 
 
 in what cases jj Q f trust in fee-simple, or fee-tail, cor- 
 
 trusts cl liter L 7 ' 
 
 from legal es- respond with the construction of limitations 
 Conversion of of a legal estate, money may, in a court of 
 SonaUstSe'" equity, be impressed with the nature of real 
 ^ntoreaSate. estate, and lands of inheritance may be con- 
 verted into the nature of personal estate. 
 
 In the case of Fletcher v. Ashburner*, sir 
 Thomas Sewell observed, " that nothing was 
 " better established than this principle, that 
 " money directed to be employed in the pur- 
 " chase of land, and land directed to be sold 
 " and turned into money, are to be considered 
 " as that species of property, into which they 
 " are directed to be converted ; and this in 
 <l whatever manner the direction is given ; 
 " whether by will, by way of contract, mar- 
 " riage-articles, settlement, or otherwise ; and 
 u whether the money is actually deposited, or 
 " only covenanted to be paid, whether the 
 " land is actually conveyed, or only agreed to 
 " be conveyed. The owner of the fund, or 
 "the contracting parties, may make land 
 "money, or money land. The cases esta- 
 blished this rule universally." 
 
 In the case of Walker v. Denne e , lord 
 Rosslyn thought, that there was no equity be- 
 tween the real and personal representatives 
 
 1 Bro. C. C. 497. g 2 Ves. jun. 170. 176,
 
 chap. Hi J Stat. 27 H. 8. c. 10. 299 
 
 upon the converted fund ; but he thought, that Sect - iv - 
 the property was to be taken by the represent- JjJ^'"^* 8 
 atives in the state, in which it happened to J™ 1 le s al es " 
 be at the death of the party. But this doc- 
 trine is clearly erroneous. In Wheldale v. 
 Partridge\ lord Eldon said, " I am also dis- 
 " posed to say, notwithstanding* the opinion 
 "of lord Rosslyn, in Walker v. Denne, and 
 " some other modern authorities, that if this 
 "instrument is to be taken to impress this 
 " fund with real qualities immediately upon 
 "the execution, in the question between the 
 " heir aud executor, the money being once 
 " clearly and plainly impressed with real uses 
 " as land, and one of those uses being for the 
 " benefit of the heir, the impression will re- 
 " main for his benefit ; and to put an end to 
 " that impression it must be shown, either 
 " that the money was in possession of a per- 
 " son, who had in himself both the heirs and 
 " executors, or he must do some act to de- 
 " note a change of his intention, as to the de- 
 " volution of the property upon either ; and 
 " it is not correct to say the court does not 
 " interpose between volunteers, if they give 
 " to the executor that money, which the in- 
 " strument has given to the heir." Several 
 modern cases have established lord Eldon's 
 opinion*. 
 
 h 8 Ves. 235. 5 Ves. dulph v. Biddulph, 12 Ves. 
 
 388. S. C. 160. Kirkman v. Miles, 
 
 * See Thornton v. Haw- 13 Ves. 338. Shard v. 
 
 ley, 10 Ves. 129. Bid- Shard, 14 Ves. 348.
 
 300 Of Trusts since the [chap. hi. 
 
 Sect. iv. Money agreed or directed to be laid out in 
 
 in what cases ] an( ] j s f or a j| th e purposes, for which it is so 
 
 trusts (lifter ' . 
 
 from legal es- a a- re ed or directed to be laid out. considered 
 
 Infos O 
 
 as real estate: it will descend to the heir k ; it 
 will be real assets to pay debts 1 ; it will be 
 subject to curtesy" 1 , and it will pass by a de- 
 vise of lands or hereditaments". 
 
 tales. 
 
 So real estate under an absolute trust 
 or direction to sell, is for all purposes con- 
 sidered as personal estate", and therefore, 
 where an heir at law becomes entitled by 
 way of resulting trust to a partial interest, 
 under, or in consequence of, a convey- 
 ance or devise in trust to sell, the interest 
 so resulting to him will be part of his per- 
 sonal estate . 
 
 k Edwards v. countess of 
 Warwick, 2 P. W. 171. 
 Lechmere v. Carlisle, 3 P. 
 W. 211. Cross v. Adden- 
 broke, and Fulhara v. 
 Jones, 3 P. W. 221. note 
 C. 
 
 'Trelawney v. Booth, 2 
 Atk. 307. Whitwick v. 
 Jermin, cited in Baden v. 
 Pembroke, 2 Vern. 58. 
 
 m Sweetapple v. Bindon, 
 2 Vern. 536. Cunningham 
 v. Moody, 1 Ves. 176. 
 
 n Lingen v. Sowray, 1 
 P. W. 172. Harvey v. As- 
 ton, 1 Atk. 364. Green 
 v. Smith, ib. 572. and note. 
 Beauclerk v. Mead, 2 Atk. 
 
 169. Guidot v. Guidot, 
 
 3 Atk. 253. Rashley v. 
 Masters, 3 Bro. Ch. Rep. 
 99. Whitaker v. Whitaker, 
 
 4 Bro. Ch. Rep. 31. 
 
 x The case of a convey- 
 ance by commissioners to 
 the assignees of a bankrupt, 
 in trust to sell, is not within 
 the rule. Bromley v. Good- 
 en, 1 Atk. 75. 80. : nor a 
 sale under the decree of the 
 court of a mortgaged estate 
 belonging to an infant. 
 Mondey v. Mondey, 1 Ves. 
 and B. 223. 
 
 ° He wit v. "Wright, 1 
 Bro. C. C. 86. Wright v. 
 Wright, 16 Ves. 188.
 
 es- 
 tates. 
 
 chap, in.] Stat. 27 H. 8. c. 10. 301 
 
 The fund, which is to be converted, will Sect. iv. 
 continue to have the equitable quality, which J™^" 68 
 it is ultimately to possess, until the conversion f ™™ le s al 
 takes place, or until some person, becoming 
 absolutely entitled to the beneficial interest, 
 electa to take it in the shape, in which it then 
 is. It frequently becomes a question, what 
 act shall amount to an election 8 ; although 
 very slight evidence of intention will be suf- 
 ficient. In Bradish v. Gee p , lord Hardwicke 
 said, that he could not admit, that a parol 
 declaration would amount to an election. 
 When a person entitled to the fee-simple of 
 an estate to be purchased with trust money, 
 and without requiring the purchase to be 
 completed, causes the securities for the money 
 to be changed in the name of a trustee, in 
 trust for himself, his executors and adminis- 
 trators^; and where a person, entitled abso- 
 lutely to the money to arise by the sale of 
 real estate, makes a lease of the estate itself, 
 reserving rent payable to him, Ms heirs and 
 assigns' : these circumstances have been con- 
 sidered to amount to an election. 
 
 A feme covert having an absolute power of 
 appointment over her separate property, is m 
 respect of such property in the situation of a 
 
 a See Stead v. Newdi- P.W. 172. 
 
 gate, 2 Mer. 521. r Crabtrce v. Bramble, S 
 
 p Amb. 229. Atk. G»0. 
 1 Lingen v. Sowray, 1
 
 302 
 
 Sect. IV. 
 
 In what cases 
 trusts dift'cr 
 from legal es- 
 tates. 
 
 Of Trusts since the [chap. hi. 
 
 feme sole, and is consequently capable of 
 making an election. But where a feme covert 
 is entitled to real estate to be purchased with 
 trust money, not subject to her appointment, 
 she cannot, by a mere act of election, alter the 
 nature of the fund : she must either cause the 
 money to be invested in land for the purpose 
 of levying a fine of it, or she must appear 
 personally in the Court of Chancery for the 
 purpose of consenting to take the money as 
 personal estate : the latter mode being con- 
 sidered in equity as equivalent to a fine 5 . 
 
 Connected with this subject, it may not be 
 improper to observe, that where an estate is 
 conveyed or devised to trustees in trust to sell, 
 and to lay out the monies to arise by the sale 
 in the purchase of other lands to be settled 
 upon A. in tail, with remainder to him in fee; 
 A. previously to the sale of the original estate, 
 may by levying a fine of it, acquire the abso- 
 lute beneficial interest in it in fee-simple, and 
 thereby elect to take the estates directed to be 
 sold, in lieu of that directed to be purchased 1 . 
 
 Neither an infant" nor a trustee* can elect 
 lo alter the uature of the fund. 
 
 s Oldham v. Hughes, 2 
 Atk. 452. 
 
 1 Pearson v. Lane, 17 
 Ves. 101. Bullock v. Flad- 
 gate, 1 Ves. and B. 471. 
 
 u Carr v. Elliston, 2 Bro. 
 C. C. 56. 
 
 " Earlom v. Saunders, 
 Auib. 241. There can be 
 no presumption to take as
 
 chap, in.] Stat. 27 H. 8. c. 10. 303 
 
 When an estate is conveyed, or devised, to Sect - iv - 
 trustees in trust to sell, and to pay the monies J^jJaSJ?" 
 to arise by the sale among several persons, [™™ legales " 
 it is necessary, that all the -eestmque trust &<£&** 
 should concur in electing to take the origi- 
 nal property as real estate ; for none of the 
 
 wrtwique trust can against, or without, the 
 
 consent of any one of them, prevent the sale 
 of the estate. This is a point of great im- 
 portance in the consideration of titles ; and 
 as there is not much to be found in the books 
 upon it, I have thought it necessary to add 
 the following extracts of the opinions of sir 
 Thomas Sewell and lord Hardwicke. 
 
 In Fletcher v. Ashburner x , sir Thomas 
 Sewell observes, that " where an estate is di- 
 " rected to be sold and the money divided 
 " among several persons, none has a right to 
 " say, that any part shall not be sold." 
 
 In Crabtree v. Bramble y , lord Hardwicke 
 says, that " no election could determine the 
 " question as to those claiming under the 
 " trust, but as to those only, who claim as 
 " volunteers:" and in Bradish v. Gee z , there 
 is the following passage : " In the present 
 " case, one tenant in common had consented 
 " to a decree for sale of the whole estate, and 
 
 real estate, where there is x I Bro. C. C. 497. 
 
 incapacity. Ashby v. Pal- » 3 Atk. 6S0. 
 
 nier, 1 Mer. 296. 2 Amb. 229.
 
 304 Of Trusts since the [chap. in. 
 
 Sect. iv. " his lordship said he was bound by it; for 
 in what cases « the other parties were interested in that 
 
 trusts differ 
 
 from legal es- " consent, because their shares of the estates 
 
 tates. 
 
 " would net-sell so well separate, as if the 
 " whole was sold together ; and his lordship 
 " said, even if he had afterwards petitioned, 
 " that the land should not be sold, yet the 
 " decree would not be varied, and the money 
 " arising by the sale would go to his personal 
 " representative." 
 
 It should seem to follow from these prin- 
 ciples, that if A. devises a real estate in trust 
 to be sold, and directs, that the money, which 
 shall arise by the sale, shall be invested in the 
 purchase of another estate to be conveyed to 
 B. in fee-simple; and if before the sale B. 
 dies, having bequeathed the monies to arise 
 by the sale to C, and having appointed D. 
 his executor, C. cannot by electing to take 
 the devised property as real estate, prevent a 
 sale of it against D., who, as executor, may 
 require the money for payment of the testa- 
 tor's debts. 
 
 gers 
 
 Equitable mer- (7.) When a lesser and a greater estate are 
 united in the same person without any inter- 
 vening interest in another, the lesser estate is, 
 generally speaking, merged at the common 
 law: and the extinguishment is effected by 
 the mere union of the estates without the aid 
 of intention, and even against it. But in
 
 chap, in.] Stat. 27 H. 8. c. 10. 305 
 
 equity the concurrence of beneficial interests, Sect. iv. 
 ill the same person, does not alone consolidate In what cases 
 
 1 trusts differ 
 
 them: and in some cases the courts of equity from legal es- 
 
 . . tates. 
 
 will relieve against the effects of a legal 
 merger". 
 
 A person, having an equitable lien upon 
 an estate for the payment of a sum of mo- 
 ney, and afterwards becoming entitled to 
 the estate itself either for life, or in tail 5 , is 
 not, by the mere accession of the estate for 
 life, or in tail, deprived of the benefit of his 
 lien ; for he has a partial interest in the estate, 
 and an absolute right to the money : and 
 there is no ground in equity to exonerate the 
 estate from the lien in favour of the persons 
 in remainder, or of the issue in tail, to the 
 prejudice of the personal representatives of 
 the tenant for life, or in tail. 
 
 But where a person is absolutely entitled 
 to a sum of money charged upon an estate, 
 and afterwards becomes entitled to the fee- 
 simple of the estate, the Court of Chancery, 
 in most cases, consolidates the rights by ex- 
 tinguishing the equitable lien. The rule how- 
 ever has two exceptions ; the first in favour 
 of creditors ; and the second in favour of 
 
 a See Danby v. Danby, Vin. 369. pi. 4. 
 
 Finch, 220. Sanders v. c See 2 Vern. 208. 
 
 Bournford, ibid. 424. Corapton v. Oxenden, 2 
 
 b Duke of Chandos v. Ves. J. 261. 
 Talbot, 2 P. W. 601. 15 
 
 VOL. I. X
 
 30G Of Trusts since the [chap. in. 
 
 sect. iv. infancy, where the person, becoming entitled 
 in wi.at cases to the charge and the estate, dies during his 
 Elegies, minority, having by will disposed of the 
 char2e d . 
 
 tatcs. 
 
 »' 
 
 These points are well explained by lord 
 Northington in Donisthorpe and Wife v. 
 Porter 6 . In that case Richard Porter settled 
 estates to the use of himself for life, remain- 
 der to his wife for life, remainder to trustees 
 for 100 years for raising 1000/. for portions 
 of daughters and younger sons, with remain- 
 der to himself in fee. 
 
 Richard Porter died leaving one son and 
 a daughter. The wife of Richard Porter also 
 died ; then the daughter died intestate, leav- 
 ing Richard (who was entitled to the estate 
 in fee-simple), her only brother, and next of 
 kin. Richard the son died intestate, leaving 
 Robert Porter, his heir at law, and Catherine 
 wife of Donisthorpe (the plaintiff), his next 
 of kin. 
 
 Donisthorpe and wife filed their bill against 
 Robert Porter to have the 1000/. raised ; and 
 lord Northington, chancellor, said, " The 
 
 d Chester v. Willis, Amb. acquires (he equity of re- 
 
 246. Powell v. Morgan, 2 demption, Forbes v. Mof- 
 
 Vern. 90. Thomas v. Key- fat, 18 Ves. 384. Toulrain 
 
 miss, 2 Vern. 348. See also v. Steere, 3 Meri. 210. 
 the case, where a mortgagee e Amb. 600.
 
 chap, in.] Stat. 27 H. 8. c. 10. 307 
 
 "question, whether the 1000/. ought to be sect. iv. 
 
 " raised, is a question of consequence. I do in what cases 
 
 x • j i trusts d ' tffer 
 
 " not find, that the counsel has cited a de- from legal es- 
 
 w cision in point ; yet on grounds of general 
 
 " practice, I am perhaps better satisfied than 
 
 " I should be, if I depended on authorities. 
 
 " It is a case of consequence, because it may 
 
 " frequently happen in families. It might, if 
 
 " determined for the plaintiffs, revive dor- 
 
 " mant claims in families. I think cases of 
 
 " consolidating rights in equity are reducible 
 
 " to a solid foundation. I do not think it a 
 
 " rule, that a charge upon an estate, which 
 
 " can only be got at by trustees, and so not 
 
 " merge at law, shall be distinct in equity, 
 
 " and go to the administrator, whilst the 
 
 " estate goes to the heir. But 1 think, where 
 
 " the owner has an absolute interest in the 
 
 " estate and charge, the charge is annihilated 
 
 " for the benefit of the estate and heir. The 
 
 " court does not consider the subtleties of 
 
 " mergers ; but discharges the estate from 
 
 " the incumbrance ; it would otherwise bUr- 
 
 " then estates to no purpose. But there are 
 
 " two exceptions; 1st, the case of creditors 
 
 " arising from the power and justice of this 
 
 " court, correcting the illiberality of law, 
 
 " with regard to creditors ; viz. that a man 
 
 " may die insolvent leaving a very good 
 
 " estate: — 2dly, of infants f . As to mergers, 
 
 f In the case of lord Ves. J. 2G1. the chancellor 
 Compton v. Oxenden, 2 said, the cases of infants 
 
 x 2
 
 300 
 
 Sect. IV. 
 
 In wliat cases 
 trusts differ 
 from legal es- 
 tates. 
 
 Of Trusts since the [chap. hi. 
 
 " courts of law cannot look into lights or 
 " beneficial interests. It merges estates lying 
 " in the same person, but cannot where they 
 " lie in different persons. Equity does not 
 "regard that, but looks into the beneficial 
 " interests and views of the parties, whether 
 " the estates are strictly in the same person, 
 " or in different persons." The bill was there- 
 fore dismissed. 
 
 Even in the case of infancy, it seems ne- 
 cessary, in order to keep the charge on foot, 
 that the infant should manifest an intention, 
 that the charge should not merge 8 : and upon 
 this principle, there is no equity in favour of 
 the personal representatives of a lunatic 
 against the heir to have a charge of this kind 
 raised 11 . 
 
 When a man marries an infant, entitled to 
 the fee-simple of an estate, and to a sum of 
 money charged upon it, and which becomes 
 an interest vested in the infant upon the event 
 of the marriage, it should seem, that the 
 charge would not merge to the prejudice of 
 the husband. 
 
 turn uponasi/ppcsedintent: 
 and that the court saw in 
 Thomas v. Keymiss, that it 
 was much more beneficial 
 to the infant, that it should 
 continue personal; because 
 the infant has the use and 
 disposition of that before 
 21 ; but he could have no 
 
 disposable interest in real 
 till thai age. See also, 18 
 Ves. 392, 393. 
 
 s See Powell v. Morgan, 
 and Thomas v. Keymiss, 
 supra ; and Chester v. Wil- 
 lis, Arab. 246. 
 
 h Compton v. Oxenden, 
 supr?..
 
 chap. III.] Stat. 27 H. 8. c. 10. 309 
 
 Upon a case where two daughters were SECr - nr. 
 presumptively entitled to a sum of money, Iu what cases 
 
 r r J Ji trusts differ 
 
 raisable under the trusts of a term of years, from legal es- 
 
 J ' tates. 
 
 and which was to become vested in them at 
 the age of twenty-one, or marriage, and the' 
 fee-simple descended upon them before the 
 portions became vested, and afterwards one 
 of the daugters married under twenty-one, 
 and the other married, having attained that 
 age, the late Mr. Fearne 1 thought " that 
 " after the descent, each daughter might be 
 " considered as entitled to one moiety of the 
 " lands, and to a charge of one moiety of 
 " her portion out of the other moiety of the 
 " lands ; and although as such charges were 
 " equal and reciprocal, they may be said to 
 " have countervailed and discharged each 
 " other, yet, considering that such a con^ 
 " elusion would be in prejudice to the rights 
 " of third persons ; viz. their husbands, who 
 " would have been entitled to such portions, 
 " it was not to be relied on." 
 
 But Mr. Fearne's opinion, as to the charge 
 of each daughter upou the others moiety, is 
 not tenable; for in the arrangement of equi- 
 table rights, it is a principle of the Court of 
 Chancery to avoid circuity. In fact, the 
 point had previously received a determina- 
 
 1 Opinion dated 1784. 
 x 3
 
 310 
 
 Of Trusts since the [chap. hi. 
 
 Sect. IV. 
 
 In what cases 
 trusts difier 
 from legal es- 
 tates- 
 
 Sect. V. 
 
 Trusts exe- 
 cuted, and 
 trusts execu- 
 tory. 
 
 tion in the case of Stephen v. lord Bate- 
 man 11 . 
 
 V. There is a distinction between a trust 
 executed, and a trust executory. When an 
 estate is conveyed to the use of A. and his 
 heirs, with a simple declaration of the trust 
 for B. and his heirs, or the heirs of his body, 
 the trust is perfect; and it is said to be exe- 
 cuted, because no further act is necessary to 
 be done by the trustee to raise and give effect 
 to it ; and; because there is no ground for 
 the interference of a court of equity to affix a 
 meaning to the words, declaratory of the 
 trust, which they do not legally import. 
 
 But in the case of articles of agreement, 
 made in contemplation of marriage, and 
 which are consequently preparatory to a set- 
 tlement, and in the case of those wills, which 
 are merely directory of a subsequent convey- 
 ance, the trust 4 declared by them are said to 
 be executory, because they require an ulterior 
 act to raise and perfect them. They are ra- 
 ther considered as instructions for settle- 
 ments, than as instruments in themselves 
 
 k 1 Bro. Cha. Ca. 22. It 
 must be observed, that if 
 Mrs. Stephens, in this case, 
 had a charge upon her sis- 
 ter's moiety, for a moiety 
 of her (Mrs. Stephens') 
 portion, then the settlement 
 
 by Mr. and Mrs. Stephens, 
 of her moiety of the estate, 
 would have been no ex- 
 tinguishment of that moiety 
 of her portion, which was 
 charged upon her sister's 
 moiety of the estate.
 
 chap, in.] Stat. 27 U. 8. c. 10. 311 
 
 complete: and the Court of Chancery, in sect. v. 
 order to promote the presumed views of the Trusts exe- 
 
 ... . cuted, and 
 
 parties in the one case, and to support the tmstsexecu- 
 manifest intention of the testator in the other, ° ry 
 will attach to the words, expressive of the 
 trusts, a more liberal and enlarged construc- 
 tion, than they would admit, if applied either 
 to the limitation of a legal estate, or a trust 
 executed. 
 
 It has before been observed, that words of 
 limitation, applicable to trusts executed, cor- 
 respond with the limitations of legal estates. 
 But in a marriage agreement, directory of a 
 settlement, the words, " heirs of the body," 
 will be considered as words of purchase, and 
 will authorize a limitation in strict settlement 
 to the first and other sons successively in 
 tail; for it would be inconsistent with the 
 nature of the transaction, and would defeat 
 the objects of the articles, if, by construing 
 those words as words of limitation, an estate 
 tail were limited to the husband, which he 
 might immediately afterwards defeat 1 . 
 
 1 See Jones v. Langtou, 513. Fitz-Gib. 127. is an 
 
 lEq.Ab. 392. Nandick v. exception to the rule. In 
 
 Wilks, ibid. 393. Streat- that case, an estate to be 
 
 field v. Streatfield, Ca. purchased with trust money, 
 
 Temp. Talb. 176. See also was agreed to be settled on 
 
 Trevor v. Trevor, 1 P. W. the husband for life, with 
 
 622. Cusack v. Cusack, remainder to his first and 
 
 5 Bro. Par. Ca. 116. ed. other sons successively in 
 
 1803. The case of Cham- tail; and it was covenanted 
 
 hers v. Chambers, 5 Vin. that another estate should 
 
 x 4
 
 trusts execu- 
 tory. 
 
 312 OJ Trusts since the [chap. in. 
 
 sect. v. I n wills, raising executory trusts, words 
 
 Trusts exe- f limitation, as " heirs of the body," will 
 
 cuted and •> ' 
 
 be converted into words of purchase, if the 
 testator has, by some expression, manifested 
 an intention, that they should not be con- 
 strued in the former sense : as where a tes- 
 tator, having, by will, directed an estate to be 
 settled upon A. and the heirs of his body, 
 explains the extent of the gift to A. by de- 
 claring, that he shall be tenant for life with- 
 out impeachment of waste" 1 ; or, that there 
 shall be trustees to preserve contingent re- 
 mainders"; or, that the heirs of the body 
 shall take " in succession and priority 6 ;" or, 
 " as counsel shall advise p ;" or, that the set- 
 tlement upon A. shall be made " at the dis- 
 cretion of the trustees q ;" or, that the set- 
 tlement shall be so made, that A. shall not 
 be empowered " to dock the entail';" or, 
 
 be settled upon the husband alienation of the tenant in 
 
 and the heirs male of his tail by the statute 11 Hen. 
 
 body. It was determined, 7. See Green v. Ekins, 2 
 
 that the latter agreement Atk. 473. Honor v. Honor, 
 
 did not authorize limitations 1 P. W. 123. Whately v. 
 
 in strict settlement ; for by Kemp, 2 Ves. 358. 
 
 the former agreement, the m Glenorchy v. Boswell, 
 
 parties appear to have un- Ca. Temp. Talb. 3. 19. 
 
 derstood the effect of words n Papillon v. Voice, 2 P. 
 
 of purchase. It should VV. 471. Bagshaw v. Spen- 
 
 seem, that where by articles cer, 2 Atk. 570. 581. 
 
 the husband's estate is ° White v. Carter, Amb. 
 
 agreed to be settled upon 670. 
 
 the intended wife, " and p Bastard v. Proby, cited 
 
 " the heirs of her body," by Mr. Cox, 2 P. W. 478. 
 
 the court will not order it to q Read v. Snell, 2 Atk. 
 
 be settled otherwise : for 642. 
 
 the estate being exprovisione r Leonard v. Earl of Sus- 
 
 viri, it is protected from the sex, 2 Vern. 526.
 
 chap, in.] Stat. 27 H. 8. c. 10. 313 
 
 that the settlement shall be made upon A. Sect. v. 
 (being a feme covert) " for her separate use" *™J a e n "" 
 
 fnr liff s trusts execu- 
 
 But to authorize this latitude of construc- 
 tion in the case of wills, the intention of the 
 testator must appear 1 ; and, therefore, under 
 a simple direction to convey an estate to A. 
 and the heirs of his body, A. will be entitled 
 to an estate tail'. 
 
 The ground, therefore, of construction 
 respecting words of limitation, differs in 
 wills and marriage-articles : in wills, it is the 
 intention of the testator manifestly appear- 
 ing ; and in articles, the nature of the trans- 
 action, and the presumed objects of the 
 parties. 
 
 The late Mr. Fearne w thought, that a 
 power of selling, not expressly authorized by 
 marriage-articles, might be introduced into 
 a settlement made in pursuance of them, and 
 would be supported in equity: but it has 
 been decided in a late case of a will", that 
 
 8 Roberts v. Dixwell, 1 Ves J. and Beames, 367. 
 
 Atk. 607. 370. And see Jervoise v. 
 
 • * See Stanley v. Stanley, duke of Northumberland, 1 
 
 16 Ves. 491. Jacob and W. 559. 
 
 u See Legate v. Sewell, w Posth. Works, 309. 
 
 1 P. W. 87. 90. Ball v. And see Peake v. Penling- 
 
 Coleman, ib. 142. 2 P. ton,2Ves. and Beames, 311. 
 
 W. 474. Seethe Master x Wheate v. Hall, 17 Ves. 
 
 of the Rolls' argument in 80. Brewster v. Angel, 1 
 
 Blackburn v. Stables, 2 Jacob and Walk. 626.
 
 314 
 
 Sect.V. 
 
 Trusts exe- 
 cuted, and 
 trusts exe- 
 cutory. 
 
 Of Trusts since the [chap. in. 
 
 the introduction of a power of selling in a 
 settlement, was not authorized, when the will 
 was silent as to the power. 
 
 In the execution of an executory trust the 
 court will direct a limitation to be inserted 
 in the settlement to preserve contingent re- 
 mainders 7 ; and both in wills 2 and marriage- 
 articles 3 , cross remainders may be raised by 
 implication. 
 
 In the case of the duke of Newcastle v. 
 Lincoln b , a conveyance was made before, and 
 in consideration of, marriage, of real estates 
 in strict settlement, with a covenant to as- 
 sign leasehold estates to trustees, " in trust 
 " for such person or persons, and for such, 
 " or the like, ends, intents, and purposes as 
 " are thereinbefore mentioned of and con- 
 " cerning the said castles, &c, as far as the 
 " law would in that case permit;" and lord 
 Rosslyn thought, that the settlement should 
 be so framed, that no person, being tenant 
 in tail by purchase, should become entitled 
 
 i Baskerville v. Basker- 
 ville, 2 Atk. 279. Stamford 
 v. Hobart, 3 Bro. Par. Ca. 
 31 ed. 1803. 
 
 z Green v. Stephens, 12 
 Ves.419. 17 Ves. 64. Mar- 
 ryatt v. Townley, 1 Ves. 
 102. 104. 
 
 a Twisden v. Lock, Amb. 
 663. Duke of Richmond v. 
 
 lord Cadogan, cited 17 
 Ves. 67. West v. Erissey, 
 2 P. W. 349. Home v. 
 Barton, Cooper, 257. 
 
 b 3 Ves. 387. 12 Ves. 
 218. See also Gower v. 
 Grosvenor, Barn. 54. and 
 2 Ves. and Beames, 63. in 
 lord Southampton v. mar- 
 quis of Hertford.
 
 chap, in.] Stat. 27 H. 8. c, 10. 315 
 
 to a vested interest in the leasehold estate, Sect - v - 
 until he attained twenty-one, or dying under Tv "J? tt J 
 that aare, unless he left issue inheritable to trusts cxecu " 
 
 tory. 
 
 the entail. 
 
 VI. To prevent the inconveniences, which Sect - vl 
 arose from parol declarations, and secret trans- 9 f ihe , • declara - 
 
 1 tion of trusts 
 
 fers of uses, the statute 29 Car. 2. c. 3. s. 7. pursuant^ 
 
 stat. 29 Car. 2. 
 
 requires, that "all declarations or creations c - 3 sec - 7 - 
 u of trusts or confidences of any lands, te- 
 " nements, or hereditaments, shall be mani- 
 " fested and proved by some writing signed 
 " by the party, who is by law enabled to de- 
 " clare such trust, or by his last will in writ- 
 ing:" and by the ninth section, " that all 
 " grants and assignments of any trust or con- 
 " fidence shall likewise be in writing, signed 
 " by the party granting or assigning the 
 " same, or by such last will or devise." 
 
 This statute, it is said, does not extend to 
 the declaration or creation of trusts of mere 
 personalty . 
 
 (1) There is no regular form prescribed by in respect to the 
 the courts of equity for the declaration orciaration. 
 creation of the trust. Therefore a note, or 
 memorandum in writing, from a trustee, pro- 
 mising to execute a declaration of trusts d , 
 
 c See Nab. v. Nab, 10 P. W. 9. 
 Mod. 404. Fordyce v. Wil- d Bellamy v. Burrow, Ca. 
 lis, 3 Bro. Cha. Ca. 507. 1 Temp. Talb. 97.
 
 316 Of Trusts since the [chap. in. 
 
 Sect. vi. or confessing, that he purchased lands with 
 of the deciara- another man's money 6 ; or a bond from a 
 pursuant to trustee, either to perform the trusts of a con- 
 
 stat ^9 Car. 2 • 
 
 c.3!sec. 7.' ' veyance, in which no trusts are mentioned f , 
 or to make an assignment as his cestuique 
 trust shall direct 5 ; a recital in a purchase- 
 deed, that the consideration-money belonged 
 to a third person 11 , an answer in chancery, 
 confessing a trust 1 ; a letter from a trustee 
 disclosing the purposes of a devise to him k ; 
 these, and indeed any writing in the shape of 
 mutual covenants or articles of agreement 1 
 relative to the transfer or produce of land., 
 although without seal or stamp m , if they 
 properly discover the intention of the par- 
 ties, are sufficient in a court of equity, to 
 create trusts. 
 
 in respect to (2.) As there is no regular form for a de- 
 
 the words of the i .• . i .• 1 c 
 
 declaration, claration, so there is no particular set of 
 words, nor mode of expression, prescribed 
 by the statute, or adopted by the courts of 
 equity, for the purpose of raising trusts. It 
 has, therefore, been repeatedly decided, that 
 
 e Lane, v. Dighton, Amb. Atk. 59. 
 
 409. See- Ambrose v. Am- 'Hampton v. Spencer, 
 
 brose, 1 P. W. 322. Ryall 2 Vern. 288. Cottington v. 
 
 v. Ryall, 1 Atk. 59. Fletcher, 2 Atk. 155. 
 
 f Goodwin v. Cutler, k Crook v. Brookeing, 
 
 Finch, 356. 2 Vern. 100. 
 
 8 Moorcroft v. Dowding, ' Legard v. Hodges, 3 
 
 2 P. W. 314. Bro. Cha. Ca. 531. 
 
 h Kirk v. Webb, Prec. m Hodsden, v. Lloyd, 2 
 
 Ch. 84. Deg v. Deg, 2 P. Bro. Cha. Ca. 534. 
 W. 415. Ryall v. Ryall, 1
 
 chap, in.] Stat. 27 H. 8. c. 10. 
 
 317 
 
 any words in a will, intimating, or in the sect. vi. 
 nature of a request, wish, desire, recommend- of the deciara- 
 
 . . tion of trusts 
 
 ation, &c, are sufficient to create a trust, it pursuant to 
 the object of the gift, and the gift itself, can c . 3. sec. 7. " 
 be correctly ascertained". But if the cer- 
 tainty of the gift and object fail, then the 
 trust must also fail, although the intention to 
 create it should appear evident upon the face 
 of the will . 
 
 (3.) When an estate is vested in trustees a 9 to the effect 
 
 /» i • . . . • /, and construc- 
 
 in fee-simple, in trust to raise a sum or money, tion of particu- 
 without specifying the particular mode of ^ "rente and 
 raising it, the trust will authorize a sale p ; profits ' 
 
 n Eales v. England, Prec. 
 Ch. 200. 2Vin. 4G6. S. C. 
 1 Eq. Ab. 297. pi. 3. S. C. 
 Cloudsley v. Pelham, 1 
 Vern. 411. Jones v. Nabbs, 
 
 1 Eq. Ab. 404. pi. 3. 
 Richardson v. Chapman, 1 
 Burn Eccl. Law, 225. Ver- 
 non v. Vernon, Amb. 3. 2 
 Bro. Cha. Ca. 227. S. C. 
 cited. Clifton v. Lornbe, 
 Amb. 519. Massey v. Sher- 
 man, Amb. 520. Nowlan v. 
 Melligan, 1 Bro. Cha. Ca. 
 489. Pierson v. Garnett, 2 
 Bro. Cha. Ca. 38. 226. 
 Finch Prec. Ch. 200. in 
 note, S. C. Davis v. King, 
 
 2 Bro. Cha. Ca. 600. Tay- 
 lor v. George, 2 Ves. and 
 B. 378. Forbes v. Ball, 3 
 Mer. 437. Parsons v. Ba- 
 ker, IS Ves. 476. 
 
 ° Harding v. Glyn, 1 
 Atk. 469. Le Maitre v. 
 Bannister, 2 Bro. Cha. Ca. 
 
 40. cited Finch Prec. Ch. 
 201. S. C. Bland v. Bland, 
 2 Bro. Cha. Ca. 43. cited 
 Finch Prec. Ch. S. C. 
 Harland v. Trigg, 1 Bro. 
 Cha. Ca. 142. Wynne v. 
 Hawkins, 1 Bro. Cha. Ca. 
 180. Sprange v. Bernard, 
 2 Bro. Cha. Ca. 585. Note 
 the case of Cunliffe v. 
 Cimliffe, Amb. 686. Finch 
 Prec. Ch. 201. S. C. 2 Bro. 
 Cha. Ca. 42. S. C. was over- 
 ruled by the Master of the 
 Rolls in the case of Pier- 
 son v. Garnett, 2 Bro. Cha. 
 Ca. cited supra. See 2 
 Bro. Cha. Ca. 46. Hill v. 
 Bishop of London, 1 Atk. 
 620. 
 
 p Baines v. Dixon, 1 Ves. 
 
 41. Wareham v. Brown, 
 2 Vern. 153. Newman v. 
 Johnson, 1 Vern. 45. See 
 8 Vin. 461. pi. 7, 8. notes.
 
 318 Of Trusts since the [chap. in. 
 
 Sect. vi. an d as a devise of the " rents and profits" of 
 of the deciara- an es tate will, at law, carrv the land itself, it 
 
 tion of trusts J ' 
 
 pursuant to nas been determined, that a trust to raise 
 
 stat. 29 Car. 2. 
 
 c.3. sec. 7. money by " rents and profits," will empower 
 the trustees to sell q , unless there are some 
 words to restrain the sense of those words to 
 " annual" profits 1 . 
 
 In the anonymous case 1 Vern. 104. a dis- 
 tinction is taken between a deed and a will, 
 as to the operation of the words " rents and 
 " profits:" but there does not appear to be 
 any ground for this distinction 5 . 
 
 Sect. vii. VII. By the eighth section of the statute 
 
 Resulting and 29 Car. 2. c. 3., it is provided, " that where 
 
 constructive * 
 
 trusts. « an y conveyance shall be made of any lands 
 
 " or tenements, by which a trust or confi- 
 " dence shall or may arise or result by the 
 " implication or construction of the law, or 
 " be transferred or extinguished by an act or 
 " operation of law, then and in any such 
 " case, such trust or confidence shall be of 
 " the like force and effect, as the same would 
 " have been, if this statute had not been 
 " made"." 
 
 * Gibson v. Rogers, Amb. 3 P. W. 0. Anon. Vern. 104. 
 
 93. 8 Vin. 4G1. pi. 7, 8, 9, Green v. Belcher, 1 Alk. 
 
 10, 11. Lingen v. Foley, 2 506. 
 
 Cha. Ca. 205. Allan v. s See Trafford v. Ashton, 
 
 Backhouse, 2 Ves. and B. 1 P. W. 418. 
 
 65. * The 7 Win. 3. c. 12. s. 
 
 r Ivy v. Gilbert, 2 P. W. 7, 9, 10, 11. in Ireland is 
 
 13. Evelyn v. Evelyn, 2 similar to 29 Car. 2. c. 3. 
 P. W. 666" Mills v. Banks,
 
 chap, in.] Stat. 27 H. 8. c. 10. 319 
 
 In the case of Lamplugh v. Lamplugh', it Sect vn - 
 was said, that this section must relate to Resultin g and 
 
 constructive 
 
 trusts and equitable interests, and cannot re- trusts « 
 late to a use, which is a legal estate : and it 
 is observable, that parol evidence may be 
 admitted to rebut a resulting trust". 
 
 The following are instances of trusts, aris- 
 ing from the operation or construction of 
 equity. 
 
 (1.) When an estate is subject to a trust Constructive 
 
 . trust arising 
 
 or equitable interest, and a person purchases from notice. 
 it for a valuable consideration with notice of 
 the trust or equitable interest, the estate will 
 be subject to it in the hands of the pur- 
 chaser w ; and a person acquiring an estate 
 as a mere voluntary grantee, even without 
 notice 51 , or as a devisee y , will take it subject 
 to every beneficial or equitable lien. The 
 principle has been extended to that equitable 
 
 1 1 P. W. 112. Atk. 383. 
 
 u 2 Vern. 294. 1 P. W. Under this head may be 
 
 112. classed those cases, where 
 
 w Saunders v. Dehew, 2 leases have been made at an 
 
 Vern. 271. Langton v. As- under value by trustees to 
 
 trey, 2 Cha. Rep. 30. 3 charitable uses. See Attor- 
 
 Atk. 238. Daniels v. Da- ney-general v. Magvvood, 
 
 vison, 16 Ves.249. "Though 18 Ves. 315., and the cases 
 
 " he had no notice before he there referred to, and At- 
 
 " paid his money, yet he torney-general v. Brooke, 
 
 " had notice before the exe- ibid. 319. 
 
 " cution of the conveyance, x See 1 Co. 121. b. Pye 
 
 " and it is all but one trans- v. George, 2 Salk. 680. 
 
 " action." Per lord Hard- y Marlow v. Smith, 2 P. 
 
 wicke in Wigg v. Wies, 1 W. 200.
 
 320 Of Trusts since the [chap. ill. 
 
 Sect. vn. Hen, which a vendor has for any part of his 
 Resulting and purchase-money remaining unpaid 2 . 
 
 constructive * o i 
 
 trusts. 
 
 In the application of the above rule, it has 
 been determined, that notice of a bargain 
 and sale not inrolled a , of a deed not regis- 
 tered 5 , and of a judgment not docketed c , 
 will affect the purchaser: the Court of Chan- 
 cery thereby giving an equitable validity to 
 an instrument, which, the legislature has ex- 
 pressly declared, shall have no legal operation 
 against a purchaser. 
 
 But a person purchasing with notice of a 
 voluntary conveyance under the statute 27 
 Eliz. c. 4. will not be bound by it d ; for the 
 statute makes the voluntary conveyance 
 constructively fraudulent; and the pur- 
 chaser, buying with notice of a fraud, is not 
 by the means of that notice converted into a 
 trustee. 
 
 If a person purchases of a trustee for a 
 valuable consideration without notice, he will 
 hold discharged of the trust ; but if the ori- 
 ginal trustee repurchases the estate, he will 
 be again converted into a trustee, uotwith- 
 
 z Mackreth v. Symmons, 3 Atk. 640. 
 15 Ves. 329. Grant v. c Davis v. earl of Strath- 
 Mills, 2 Ves. and B. 306. more, 16 Ves. 419. 
 
 a 3 Atk. 651, 652. d See Doe ex dera. Ot- 
 
 b Le Neve v. Le Neve, ley v. Manning, 9 East, 59.
 
 chap, in.] Stat. 27 H. 8. c. 10. 321 
 
 standing the first purchaser had levied a fine, sect. vii. 
 and five years non-claim had run upon it e . Resulting and 
 
 1 constructive 
 
 But a stranger, who purchases with notice trusts - 
 from a person, who purchased for a valuable 
 consideration without notice, may, it is con- 
 ceived, shelter himself under the first pur- 
 chase'. 
 
 It is not clear, how far a purchaser may be 
 affected by notice of a constructive or doubt- 
 ful trust. It is to be lamented, that he is 
 subject to it in any case. Where a settle- 
 ment was made in pursuance of articles, and 
 pursuing the exact words of the articles, 
 gave an estate tail to the husband, instead of 
 limiting the estate to him for life, with re- 
 mainder to his first and other sons in strict 
 settlement, it was determined, that a pur- 
 chaser with notice of the articles (which 
 were of long standing), would not be affected 
 by reason of the notice, with a trust for the 
 benefit of the issue g ; and in the case of 
 
 • Boveyv. Smith, 1 Vern. case of Parker v. Brooke» 
 
 60. 2Ch. Ca. 124. S. C. 9 Ves. 583. the Master of 
 
 f See Lowther v. Carlton, the Rolls, alluding to the 
 
 2 Atk. 242. and the cases case of Senhouse v. Earle, 
 
 in the note to the last ed. : said, that " Lord Hard- 
 
 and see 11 Ves. 478. in " wicke took it to be clear, 
 
 M'Queen v. Farquhar. " that if the articles had 
 
 e See Warwick v. War- " been modern, he must 
 
 wick, 3 Atk. 293. Sen- " have reformed them even 
 
 house v. Earle, Amb. 285. " against a purchaser." It 
 
 The case of Powel v. Price, is observable, that in West 
 
 2 P. W. 533. seems to v. Erissey, 2 P. W. 349. 
 
 have been determined upon the plaintiff did not attempt 
 
 the same principle. In the to impeach the purchasers. 
 
 VOL. I. Y
 
 322 Of Trusts since the [chap, hi 
 
 Sect. vii. (Jordwell v. Mackaril 11 , the Chancellor says. 
 Resulting and « j aul uiiwilliiic: to think, that the sub- 
 
 constructivc ° 
 
 trusts. << j ec t s are bound to take notice of the rules 
 
 " of equity, as they are of a court of law. 
 " They must take notice of a deed, on which 
 " an equity arises, supported by precedents, 
 " the justice of which every body must ac- 
 " knowledge, as prior incumbrances, but not 
 " the mere construction of words, which are 
 " uncertain in themselves, and often depend 
 " on the locality of them 1 ." 
 
 of resulting (2.) If an estate be purchased in the name 
 
 trusts. 
 
 of one person, and the consideration-money 
 
 Where an es- ■ * ' J 
 
 tate is purcnas- belong; to, or be paid by, another, the estate 
 
 ed in the name ~ *■ 
 
 of one, and the S0 purchased, will be Subject tO a trUSt in fa- 
 consideration- ' 
 
 money paid hy vour of the person claiming, or paying, the 
 
 another person. 
 
 money; although there be no express decla- 
 ration for that purpose k . 
 
 In order to raise a trust of this kind, the 
 fact of the ownership of the money should 
 appear upon the face of the deed, either by 
 
 h Amb. 515. 
 
 1 See Hardy v. Reeves, 
 5 Ves. 426. 
 
 k Llovd v. Spillett,2Atk. 
 150. 257. 1 Atk. 60. 1 
 Vein. 366. 4 Bro. P. C. 
 67. Wray v. Steele, 2 
 Ves. and B. 388. which was 
 the case of a joint advance. 
 But according to the policy 
 of the registry acts (26 
 Geo, 3. c. 60. 34 Geo. 3. 
 
 c. 68.), the registry of a 
 ship is conclusive evidence 
 of the equitable, as well as 
 legal, property. Ex parte 
 Houghton, 17 Ves. 251. 
 " There can be no such 
 " thing as the equitable 
 " ownership of a ship." 
 Dixon v. Ewart, 3 Mer. 
 333. See Ryle v. Haggie, 
 1 Walker and Jac. 234=
 
 chap, in.] Stat. 27 H. 8. c. 10. 323 
 
 a recital^ or by expressions, which amount to Slct. vii. 
 a necessary implication, or presumptive proof Res,,llin s and 
 
 J l r i r constructive 
 
 of it 1 . If, however, it be expressly stated »«■»*»• 
 in the conveyance, that the money was paid 
 by the nominal purchaser, and nothing shall 
 appear to explain the nature of the transac- 
 tion, then, if in his lifetime, such nominal 
 purchaser shall, by any note or memorandum 
 in writing'", or by his answer to a bill filed 
 against him, for a recovery thereof (though 
 he shall at the same time plead the statute of 
 frauds"), confess the purpose, for which the 
 purchase was made; or if, after his death, he 
 shall leave any papers disclosing the real cir- 
 cumstances of the case ; in all these in- 
 stances the court will raise the trust, even 
 against the express declaration of the pur- 
 chase-deed. If, indeed, upon a bill filed 
 against him for a discovery, the nominal pur- 
 chaser deny the facts by his answer, and in- 
 sist upon the statute of frauds, it should seem 
 that parol proof cannot be admitted to prove 
 the trust p ; and it is conceived, that after the 
 death of the supposed nominal purchaser, 
 
 1 See 2 Vera. 168. Prec. ° Ryall v. Ryall, Arab. 
 
 Ch. 104. Kirk v. Webb, 413. Lane v. Dighton, ib. 
 
 ib. 84. Denton v. Davis, 409. 
 18 Ves. 499. p See Skett v« Whitmore, 
 
 m See ante, 315. and 2 Freem. 352. Newton v. 
 
 O'Hara v. O'Neil, 2 Eq. Preston, Prec. Ch. 103. 
 
 Ab. 745. and Vin. tit. Trust Willis v. Willis, 2 Atk. 71. 
 
 (E.) Cooth v. Jackson, 4 Ves. 
 
 " Cottington v. Fletcher, 12. Rowe v. Teed, 15 Ves. 
 
 2 Atk. 155. But see Ed- 374. See Evans v. Harris, 
 
 wards v. Moore, 1 V C s. 23. 2 Ves. and R. 361. 
 
 Y 2
 
 324 Of Trusts since the [chap. in. 
 
 sect. vii. parol proof alone, can in no instance be ad- 
 
 Resulting and 
 
 constructive 
 trusts. 
 
 mitted against the express declaration of the 
 deed 1 . The cases of Ryall v. Ryall r , and 
 Lane v. Dighton 3 , are by no means authori- 
 ties against this construction ; for, as to the 
 former, it will be found, upon examining 
 Mr. Amblers report of it 1 , that the inquiry 
 was directed only as to 250/. which appeared 
 by papers of the testator, to have been trust- 
 money: and as to the latter, there was evi- 
 dence in the case under Mr. Dighton's hand- 
 writing, that the trust stocks had been sold, 
 and the money laid out from time to time in 
 the purchase of land. In Liebman v. Har- 
 court, 2 Mer. 513. the money was followed 
 by the evidence of the banker's books, and 
 of the clerks in the house. But that was the 
 case of stock. 
 
 The preceding observations have been 
 adopted by one intelligent writer", and they 
 have been controverted by another w , upon the 
 ground, " that the statute of frauds is not 
 " more broken in upon by admitting parol 
 " proof after the death of the nominal pur- 
 " chaser, than by allowing such proof in his 
 " lifetime." The question, however, will still 
 
 & 
 
 q Kirk v. Webb, Prec. P. W. 414. 
 
 Ch. 04. 2 Freem. 229. S. r 1 Atk. 59. 
 
 C. Heron v. Heron, Prec. ' Amb. 409. 
 
 Ch. 163. Halcot v. Mark- ' Amb. 413. S. C. cited, 
 
 ant, ib. 1G8. Kinder v. u Roberts on Frauds, 99. 
 
 Miller, ib. 172. 2 Vern. w Sugden on Vend. 415, 
 
 440. S. C, Deg v. Deg. 2. 416.
 
 chap, in.] Stat. 27 H. 8. c. 10. 325 
 
 be, whether the parol evidence of third per- sect. vii. 
 sons can be admitted during the purchaser's Resulting ana 
 
 1./. , i • i i a' constructive 
 
 ite against his own express declaration. tmsts 
 
 When upon the face of the instrument, or by 
 other written evidence, it appears, that the 
 consideration paid by the grantee is the pro- 
 perty of another person, there is an equitable 
 presumption, that the estate is purchased for 
 the benefit of the person, with whose money 
 it was bought; and this resulting trust so 
 created by a construction of equity, may be 
 rebutted by parol evideuce; for the trust 
 itself, not being within the statute of frauds, 
 may be repelled or varied without the aid of 
 it x . But it is difficult to discover a principle, 
 upon which parol evidence alone can, con- 
 sistently with the statute, be admitted to es- 
 tablish a fact, the effect of which, if esta- 
 blished, is to create an equitable interest, and 
 not to counteract a constructive trust pre- 
 viously raised y . 
 
 The rule, which I have explained, is not 
 applicable to the case of a purchase made by 
 
 x See Lamplugh v. Lam- tates, the testator cannot 
 
 plugh, 1 P. W. 113. Tay- create a trust upon the de- 
 
 lor v. Alston, cited in Dyer vise, by writing not attested 
 
 v. Dyer, Watk. 223. by three witnesses. Can v. 
 
 y If the case of Lencli v. Addington, 3 Atk. 141. 
 
 Lench, 10 Ves. 511. is to But it seems, that in a bill 
 
 be considered as an unqua- for discovery of a secret 
 
 lified decision, establishing trust, the devisee will be 
 
 the admission of parol evi- bound to answer as to the 
 
 dence alone, I must in fact. Muckleston v. Brown, 
 
 course bow to the authority. 6 Ves. 52. 
 After a devise of real es- 
 
 Y 3
 
 320 
 
 Of Trusts since the [chap. hi. 
 
 Sect. vii. a father in the name of a son, unprovided for 
 
 Resulting and at the time of such purchase : for in that case 
 
 constructive i 11 i • 1 1 1 
 
 trusts. the purchase shall be considered as an ad- 
 
 Th 
 
 to 
 
 father. 
 
 > therole! 101 " vancement f° r tne son > an d not as a trust for 
 
 Purchase by a the father ; although the father takes the pos- 
 session, and receives the rents and profits z . 
 It is the same, where the grandfather pur- 
 chases lands in the name of a grandchild, 
 the father being dead ; for then the grand- 
 father is in loco parentis*. 
 
 In these cases,the father cannot by a subse- 
 quent deed, declare his son to be a trustee b ; 
 nor can the son himself, on his sick bed, make 
 a declaration of trust in favour of his father, 
 so as to prevent his own wife from dower c . 
 
 2 Gray v. Gray, 1 Eq. 
 Ab. 381. 2 Swanst. 594. 
 Taylor v. Taylor, 1 Atk. 
 386. 1 P. W.'lll. 608. 2 
 Atk. 480. In Gilbert's Lex 
 Pretoria (271.) it is said, 
 " but if the father purchases 
 " in the name of his son, 
 " who is of full age, which, 
 " by our law, is an einan- 
 " cipation out of the power 
 " of the father, there if the 
 " father takes the profits, 
 " or lets leases, or acts as 
 " the owner of the estate, 
 " the son is a trustee for 
 " the father; because there 
 " is the same resulting 
 " trust, as if the son were 
 " a stranger, where the fa- 
 " ther acts as owner of the 
 " estate, since it was pur- 
 " chased with his money,'' 
 See Treatise of Eq. 2 vol. 
 122. 
 
 * Ebrand v. Dancer, 1 
 Eq. Ab. 382. So if a per- 
 son purchase in the name 
 of his wife, the wife is not 
 a trustee for her husband. 
 Kingdom v Bridges, 2 
 Vern. 67. Back v. An- 
 drews, Prec. Cha. 1. 2 
 Vern. 120. So where a fa- 
 ther purchases a copyhold 
 estate, held for lives, and 
 takes the grant in the 
 names of himself and his 
 son in succession. The 
 cases upon this head will 
 be found in Dyer v. Dyer, 
 Watk. 216. Finch v. Finch, 
 15Ves. 43. 
 
 b 2 Cha. Ca. 231. The 
 evidence of intention must 
 be contemporaneous. Mur- 
 less v. Franklin, 1 Swanst. 
 13. 
 
 c Bateman v. Bateman, 
 2 Vern. 406.
 
 chap. Hi.] Stat. 27 H. 8. c. 10. 327 
 
 So if a father buy in the names of his son Sect. vir. 
 and a trustee 1 , or in the names of himself and Resulting and 
 
 . constructive 
 
 son 6 , in either case it is an advancement, trusts. 
 But in these instances, the father shall have 
 the benefit of survivorship in case the son die 
 during his minority: although the son shall 
 not have the benefit of survivorship, as against 
 the judgment creditor of the father f . 
 
 It seems, that when the son is provided 
 for at the time of the purchase, he stands 
 in the situation of a stranger g . Where a 
 grandmother, during the life of the father, 
 invested 100/. in the purchase of an exche- 
 quer annuity in the name of a grandchild; 
 the child's father gave a bond to the grand- 
 mother for the repayment of 1007. if the 
 child died before the grandmother; the grand- 
 mother received the income, and kept the 
 tally, the grandchild making no claim ; it 
 was held to be a trust for the grandmother*. 
 
 5" 
 
 (3.) When a voluntary conveyance is made where the ex- 
 with a declaration of trusts, as to a part only fino? the"*" 
 of the land, or of the estate or interest in it, JTarS^pthe 
 there is a resulting trust, in that case, for the land or interest 
 
 d Lamplugh v. Lamplugb, 2 Atk. 477. 
 
 1 P. W. 111. * Elliott v. Elliott, 2 Cha. 
 
 e Scroope v. Scroope, 1 Ca. 232. 
 
 Cha. Ca. 27. Back v. An- h Lloyd t. Read, 1 P. 
 
 drews, 2 Vern. 120. W. 607. 
 
 f Stileraan v. Ashdown, 
 
 Y 4
 
 constructive 
 
 328 Of Trusts since the [chap. m. 
 
 sect. vii. grantor or his representatives, as to the part. 
 Resulting and or interest, of which there is no declaration^ ; 
 as where A. granted an advowson to B. for 
 99 years in trust to present a particular per- 
 son, the beneficial interest in the term beyond 
 the purpose, for which the giant was made, 
 vested in the grantor\ 
 
 The rule is applicable to devises. Where 
 a testator creates an executory trust, or de- 
 vise, to take effect within the limit allowed 
 by law, and makes no disposition of the 
 intermediate beneficial interest, the trust or 
 equitable estate will descend to the heir, 
 until the contingency happens, upon which 
 the equitable executory devise is to arise : or, 
 where the legal estate in fee-simple is devised 
 to trustees, in trust for A. for life, with re- 
 mainder to his first and other sons succes- 
 sively in tail, with remainder to the first and 
 other sons of B. successively in tail, and A. 
 dies without having had a son in the lifetime 
 of B.j who has no son then living ; the legal 
 estate of the trustees will support the con- 
 tingent remainder to the sons of B. ; and 
 until the birth of B.'s son, or until such event 
 becomes impossible by the death of B., the 
 
 Barn. Cha. Rep. 308. k Cottiugton v. Fletcher. 
 
 2 Atk. 150. 2 Atk. 15G.
 
 chap, in.] Stat. 27 II. 8. c. 10. 329 
 
 beneficial interest will descend to the testa- sect. vii. 
 
 tor's heir 1 . Resulting and 
 
 constructive 
 trusts. 
 
 In the case of Sherrard v. lord Harbo- 
 rough, Amb. 165., Bennet earl of Harbo- 
 rough by his will devised all his manors, ad- 
 vowsons, &c. to trustees, in trust out of the 
 rents and profits to pay to the succeeding earl 
 an annuity of 1000/. for his life, and directed, 
 that the surplus of the rents and profits 
 should during the life of the earl (the an- 
 nuitant) be laid out in the purchase of lands, 
 to be settled to such uses, as the testator's 
 other lands stood settled after the death of 
 the said earl ; and after the decease of the 
 earl, the annuitant, the trustees were to 
 stand seised of the estates to the use of the 
 first and every other son of the same earl 
 successively in tail ; with remainders over. 
 The question was, who was entitled to the 
 right of presentation to the advowsons during 
 the life of the earl, the annuitant. The 
 lord chancellor determined, that the trus- 
 tees themselves had no pretence of right; 
 and that the right of presentation not having 
 been disposed of during the life of the earl, 
 the devisee of the annuity, it resulted to the 
 heir. 
 
 1 Hopkins v. Hopkins, 1 16 Ves. 491. See Chambers 
 
 Atk. 581. Ca. Temp. Talb. v. Brailsford, 18 Ves. 368. 
 
 44. Butl. Co. Litt. 271. b. 2 Mer. 25. 
 S. C. Stanley v. Stanley,
 
 330 Of Trusts since the [chap, in 
 
 sect. vii. So in the case of the marquis Townshend 
 Resulting and v t j ie bishop of Norwich and others (Aug. 
 
 constructive ' v ° 
 
 trusts. 1021), it appeared, that the late lord Towns- 
 
 hend, by his will dated the 10th of July 1811, 
 devised unto the use of trustees and thei 
 heirs, all his real estates not previously by his 
 will disposed of, in trust, by mortgage or 
 sale to raise so much money in aid of his 
 personal estate, as would be sufficient to pay 
 his debts and legacies, and after payment 
 thereof, in trust to convey his real estates, or 
 so much thereof as should not be disposed of 
 under the trust aforesaid, to the use of the 
 same trustees and their heirs during the life 
 of lord Charles Townshend, in trust, out of 
 the rents and profits, to pay all taxes and 
 other outgoings, and the expense of repairs ; 
 and then to pay an annual sum of 4000Z. to 
 lord Charles Townshend, and from time to 
 time during the term of 21 years, if lord 
 Charles should so long live, to accumulate 
 the surplus of the said rents and profits, with 
 remainders over after the death of lord 
 Charles, who was not the heir of the testator. 
 The advowson of the rectory of Rainham 
 was included in the residuary devise con- 
 tained in the will ; and the rectory having 
 become vacant, the question then arose as to 
 the right of presentation, such right having 
 been claimed, first, by the present marquis, 
 as heir of the testator; secondly, by lord 
 Charles Townshend ; and thirdly, by the
 
 constructive 
 trusts. 
 
 chap, in.] Stat. 27 //. 8. c. 10. 331 
 
 trustees. The lord chancellor decided in s EC vii. 
 favour of the present marquis, upon the Resulting and 
 ground, that there was a resulting trust to 
 him, as heir at law. 
 
 Within this rule may be included that 
 class of cases, where a trust is created by 
 deed or will for a particular purpose, and 
 there is no further declaration of the trust" 1 ; 
 as where lands are devised to executors for 
 payment of debts and legacies, and no further 
 trust is declared, the executors, after the 
 payment of debts and legacies, will be trus- 
 tees, as to the surplus for the heir at law", 
 although the executors have no legacy, and 
 the heir has an express one . So where A. 
 devised lands to trustees to sell, and to dis- 
 pose of the money as he should appoint, and 
 provided he left no paper of appointment, to 
 his four nephews ; A. appointed several sums 
 to be paid to several persons, which sums 
 did not amount to the value of the lands ; 
 and it was determined, that the surplus re- 
 sulted to the heir p . 
 
 m See Cooke v. Guavas, See the case of Sidney 
 cited 2 Vern. 645. and the v. Miller, Cooper, 206. 
 cases cited in the note to where a term of years was 
 Hill v. bishop of London, created, and no trusts of it 
 1 Atk. 619. last ed. In declared, and it was direct- 
 Davidson v. Foley, 2 Bro. ed toattend the inheritance. 
 C. C. 203. the trust of a " Countess of Bristol v. 
 term of years, created for Hungerford, 2 Vern. 645. 
 particular purposes, result- ° Starkey v. Brookes, 1 
 ed for the benefit of the te- P. W. 390. 
 nant for life, iu remainder p City of London v. Gar- 
 expectant uoon the term, way, 2 Vern. 571.
 
 constructive 
 trusts. 
 
 32 Of Trusts since the [chap. in. 
 
 Sect. vii. So where a rent-charge was devised to be 
 
 Resulting and sold to pay legacies to the amount of 800/. ; 
 but if the rent-charge sold for 1000/., then 
 an additional legacy of 100/. was given to B., 
 and another of 100/. was given to C. : it was 
 held, in this case, that if the rent-charge sold 
 for above 800/. and less than 1000/., the re- 
 sidue above 800/. would result to the heir at 
 law q . Upon the same principle, the case of 
 Digby v. Legard was determined'. E. B. 
 devised her real and personal estates to trus- 
 tees, in trust, to sell and pay debts, and to pay 
 the residue to five persons, to be equally 
 divided among them, share and share alike 
 (which words in a will, create a tenancy in 
 common) ; one of the residuary legatees died 
 in the lifetime of the testatrix ; and the court 
 decided, that this was a resulting trust (as to 
 the share in the real estate of the residuary 
 legatee, who died in the testator's lifetime), 
 for the benefit of the heir at law. 
 
 The general rule, which I have mentioned, 
 that when lands are devised for a particular 
 purpose; viz. to be sold for payment of debts, 
 &c. there is a resulting trust for the heir at 
 law, admits, however, of several exceptions. 3 
 
 q Stonehouse v. Evelyn, London, 1 Alk. G20. lord 
 
 3 P. W. 251. Hardwicke observes, that 
 
 r Note 1. 3 Cox's P. " no general rule is to be 
 
 W. 22. " laid down, unless where 
 
 •See note to 1 Atk. 619. "a real estate is devised 
 
 3 ed. In Hill v. Bishop of " to be sold for payment of
 
 chap, in.] Stat. 27 H. 8. c. 10. 333 
 
 In Hill v. Bishop of London', lord Hard- sect. vii. 
 wicke observed, that if J. S. devised lands to Resulting and 
 
 constructive 
 
 A. to sell them to B., for the particular ad- trusts. 
 vantage of B. ; that advantage was the only 
 purpose to be served according to the intent 
 of the testator ; and to be satisfied by the 
 mere act of selling, let the money go where it 
 would ; and that there was no precedent or 
 a resulting trust in such a case : and that if 
 A. devised lands to J. S. to sell for the best 
 price to B., or to lease for three years, at such 
 a fine, there could be no resulting trust to the 
 heir of the testator. In a case" where there 
 was a devise, by a codicil, to trustees to sell, 
 and to dispose of the money arising by the 
 sale to such uses and for such purposes, as 
 
 " debts, and no more is said, ham v. Mellish, Prec. Cha. 
 
 " Then certainly it is a re- 31. Dawson v. Clarke, 15 
 
 " suiting trust ; but if a par- Ves. 409. 
 
 " ticular reason occurs, why In Gibbs v. Rumsay, 2 
 
 " the testator should intend Ves. and B. 294. there was 
 
 " a beneficial interest to the a bequest of the residue of 
 
 " devisee, there are no pre- monies arising from the sale 
 
 " cedents to warrant the of real estate, and the resi- 
 
 " court to say, it shall due of personal estate, "unto 
 
 " not be a beneficial inter- " my said trustees and ex- 
 
 "est." "ecutors, (the said H. R. 
 
 In King v. Dennison, 1 " and J. R.)" to be disposed 
 
 Ves. and B. 260. 276. lord of unto such person or per- 
 
 Eldon observes, " there is sons, and in such manner, 
 
 " a great difference here be- &c. as they in their discre- 
 
 " tween a devise upon trust, tion should think proper aud 
 
 '' and a devise subject to a expedient; and it was held, 
 
 "charge." See Southouse that they had an absolute 
 
 v. Bate, 2 Ves. and B. 396. interest and not a trust. 
 
 Yet the word trust does ' 1 Atk. 618. 
 
 not seem to be conclusive u Cook v. Duckenfield, 
 
 in converting the devisee 2 Atk. 562. 
 into a trustee. See Coning-
 
 334 Of Trusts since the [chap. m. 
 
 Skct. vii. the testator should appoint, and in default of 
 Resulting ami appointment, as .they (the trustees) or the 
 
 constructive • * * v ' 
 
 trusts. major part of them, should think proper; the 
 
 testator having previously devised these lands 
 to the same trustees for such charitable uses 
 as he should direct by codicil or otherwise; 
 the testator made no appointment : the trus- 
 tees insisted upon the beneficial interest in 
 the lands devised ; and the heir at law claimed 
 a resulting trust ; but it was determined, that 
 there should be no resulting; trust for the 
 heir ; nor could the trustees have any bene- 
 ficial interest ; for that it clearly appeared, 
 that the testator intended them no benefit, 
 but only an authority*. 
 
 It has been before stated, that if there be 
 no consideration expressed in a common law 
 conveyance, and no declaration of the use, 
 the use will result to the grantor. But it is 
 here necessary to observe, that the mere want 
 of a valuable consideration will not alone 
 create a resulting trust in favour of the gran- 
 tor, or his representatives. Lord Hardwicke, 
 in the case of Lloyd v. Spillet, expressly 
 
 w To the cases, which I 188. Nash v. Smith, 17 
 have cited as an exemplifi- Ves. 20. Sheddon v. Good- 
 cation of the rule, and its rich, 8 Ves. 481. Wil- 
 exceptions, I may add the liams v. Coade, 10 Ves. 
 more recent cases of At- 500. Hill v. Cock, 1 Ves. 
 torney-general v. Wansey, and B. 173. Maugham v. 
 L5 Ves. 231. Dawson v. Mason, ibid. 410. Hooper 
 Clarke, 15 Ves. 409. v. Goodwin, 18 Ves. 150. . 
 
 Wright v. Wright, 10 Ves.
 
 chap, in.] Slat. 27 H. 8. c. 10. 335 
 
 made his decision upon this distinction be- Sect. vii. 
 tweeu a use and a trust arising by operation Resulting and 
 
 n i t /• constructive 
 
 or law*. In fact, it the mere want of a con- trusts. 
 sideration would create a resulting trust, 
 there could be no such thing as a voluntary 
 conveyance, so as to vest a beneficial interest 
 in the grantee. Circumstances of fraud, mis- 
 take, or the like y , may convert a grantee 
 under a voluntary conveyance, into a trustee: 
 but not the mere want of a valuable consi- 
 deration. 
 
 (4.) When a trustee or guardian renews aR en ewaiof a 
 lease, the new lease shall be subject to the teJguwdiST 
 trust affecting the old lease 2 ; and if a lease ^ # enant for 
 be settled upon A. for life, with remainders 
 over, and A. obtain a renewal of the lease, 
 the renewed lease shall be bound by the trusts 
 of the will or settlement. So i£ one of three 
 lessees, under a lease from a dean and chap- 
 ter, surrender the old lease, and take a new 
 lease to himself, it shall be a trust for all of 
 
 * Barn. Ch. Rep. 387, Hales, 2 Ves. and B. 45. 
 
 388. 2Atk.l50. Milner v. Harewood, 18 
 
 y See 1 Freem. 305. 308. Ves. 259. 274. 
 
 2Atk. 150. Duke of Nor- a Taster v. Marriott, 
 
 folk v. Browne, Prec. Cha. Amb. 668. Raw v. Chi- 
 
 80. chester, ibid. 715. Owen 
 
 z Holt v. Holt, 1 Cha. v. Williams, ibid. 734. Pic- 
 
 Ca. 191. Pierson v. Shore, kering v. Vowles, 1 Bro. 
 
 1 Atk. 480. Abney v. Mil- 197. Coppin v. Feruy- 
 
 ler, 2 Atk. 597. Edwards hough, 2 Bro. 291. Kil- 
 
 v. Lewis, 3 Atk. 538. Fea- lick v. Flexney, 4 Bro. 161. 
 
 therstonhaugh v. Fenwick, James v. Dean, 11 Ves. 
 
 17 Ves. 228. Brook man v. 383. 15 Ves. 236.
 
 330 Of Trusts since the [chap. hi. 
 
 Sect. mi. them 1 '. In these cases, the rule of equity is 
 Resulting and enforced even against the express intention 
 and contract of the lessor . 
 
 constructive 
 trusts. 
 
 It is observable, that the rule has been 
 adopted in the legislature in several statutes 
 relating- to the redemption and purchase of 
 land tax. d 
 
 b Palmer v. Young, 1 
 Vern. 276. In this case it 
 should seem, that the sur- 
 render of one joint tenant 
 was considered as binding 
 against the others. But 
 this is at least doubtful. In 
 Reed v. Tucker, Cro. Eliz. 
 302. it is said, " that every 
 " act by one joint tenant 
 " for the benefit of hisconi- 
 " panion, shall bind ; but 
 " those acts which prejudice 
 "his companion in estate 
 " shall not bind ; as the 
 " surrender of the one." 
 
 c Keech v. Sandford, Sel. 
 Ca. Cha. 61. Whether the 
 principle is extended in 
 equity to the purchase of the 
 reversion in fee expectant 
 on the lease, see Randall 
 v. Russell, 3. Mer. 190. 
 Hardman v. Johnson, ibid. 
 347. Norris v. Le Neve, 
 3 Atk. 26. 
 
 d See 39 G. 3. c. 108. 
 sec. 8. 42 G. 3. c. 116. 
 By the 85th section of the 
 latter, it is enacted, " that 
 where the reversion of any 
 manors, messuages, lands, 
 tenements, or other here- 
 ditaments holden under any 
 body politic or corporate, 
 or company, or any feoffees 
 
 or trustees for charitable 
 or other public purposes, 
 by virtue of any lease for 
 one or more life or lives, or 
 for years absolute or deter- 
 minable on the dropping of 
 one or more life or lives, or 
 by copy of court-roll or 
 customary teuure for life 
 or lives, shall be purchased 
 under the powers of this 
 act, by or with the proper 
 monies of the person or 
 persons for the time being, 
 beneficially entitled to the 
 rents and profits thereof, 
 and where such lease or 
 leases shall be subject to 
 any will or settlement, so 
 that such person or persons 
 shall not, at the time of 
 purchasing the reversion 
 thereof, be entitled to the 
 absolute interest under such 
 lease or leases, and such 
 person or persons shall be 
 bound by any covenant, 
 engagement, or condition, 
 to renew the lease at the 
 accustomed periods, with 
 his, her, or their own monies, 
 or with or out of the rents 
 and profits of the estate, 
 then, and in every such case 
 the immediate estates and 
 interests under such subsist-
 
 chap, in.] Stat. *27 H. 8. c. 10. 
 
 337 
 
 But if there be a 
 an infant, to whom 1 
 
 ing lease or leases) as well 
 as the reversion expectant 
 thereon, shall, under the di- 
 rection of the said last-men- 
 tioned commissioners, be 
 charged with and made sub- 
 ject to the repayment of the 
 principal money advanced 
 for the purchase of such re- 
 version, with lawful interest, 
 to or for the benefit of the 
 person or persons advan- 
 cing the same, his, her, or 
 their executors, adminis- 
 trators, or assigns : but if 
 the person or persons so, 
 for the time being, benefi- 
 cially entitled to the rents 
 and profits of the estates 
 comprised in such subsist- 
 ing lease or leases as afore- 
 said, shall not be liable to 
 any covenant, engagement, 
 or condition, to "renew the 
 lease at the accustomed pe- 
 riods, with his or her own 
 monies, or with or out of 
 the rents and profits of the 
 estate, then, and in such 
 case, the reversion only ex- 
 pectant on the subsisting 
 lease or leases, shall, under 
 such direction as aforesaid, 
 be charged and made sub- 
 ject for the benefit of such 
 person or persons, with the 
 payment of the principal 
 money advanced for the 
 purchase thereof, together 
 with lawful interest, to ac- 
 cumulate from the time of 
 such purchase, till the ex- 
 piration of the subsisting 
 lease, after deducting out 
 of such interest the annual 
 rent (if any) which shall 
 
 VOL. I. 
 
 StcT. vir. 
 
 trusts. 
 
 guardian or trustee for 
 
 ands are descended or Resulting and 
 
 constructive 
 be payable during the lease, 
 and which shall have been 
 purchased with the rever- 
 sion, unless the person or 
 persons advancing such 
 money shall be desirous 
 that the same, together 
 with the interest, may be 
 made a charge on the sub- 
 sisting lease or leases; in 
 which case the immediate 
 estates and interests under 
 the same, as well as the re- 
 version expectant thereon, 
 shall be charged and made 
 subject to the payment of 
 such principal money and 
 interest, in like manner as 
 if such person or persons 
 had been bound to renew 
 the lease; and subject to 
 such charges, so to be made 
 respectively as aforesaid, 
 the fee-simple of such ma- 
 nors, messuages, lands, te- 
 nements, or other heredita- 
 ments, shall be settled, un- 
 der the like direction, for 
 the benefit of the person or 
 persons so purchasing the 
 same, and of such other 
 persons as would have been 
 entitled under such will or 
 settlement to the benefit of 
 any renewed lease or leases 
 for the time being, and so 
 as to be enjoyed by them 
 for such respective estates 
 and interests, as, consider- 
 ing the alteration of the 
 tenure, shall appear to the 
 said commissioners most 
 correspondent with the in- 
 tention of such will or set- 
 tlement: provided always, 
 that where the immediate
 
 338 Of Trusts since the [chap. hi. 
 
 Sect. vii. devised, but the title is really in a third per- 
 Resuitingand son, and the trustee or guardian buy in the 
 tr° u ^s! uc title of the third person ; this shall not be 
 
 taken to be a trust for the infant ; for such 
 trustee or guardian is at liberty to purchase 
 it as well as any other person : and in 
 O'Herlihy v. Hodges d , lord Redesdale has 
 observed, " that the rule is established, in 
 " order to keep trustees in the line of their 
 " duty, but not for the purpose of being an 
 " injury to a third person, if the principal 
 " injury be to him." 
 
 Sect. VIII. 
 
 Of trusts, as 
 more immedi- 
 ately referring 
 to the person 
 and acts of ces- 
 tuique trust. 
 
 VIII. I shall now explain the system of 
 trusts, as it more immediately refers to the 
 person and acts of cestuique trust. 
 
 estates or interests, under 
 any such lease or leases, 
 shall be charged with and 
 made subject to the pay- 
 ment of the principal mo- 
 ney advanced for the pur- 
 chase of the reversion, the 
 persons successively en- 
 titled to the rents and pro- 
 fits of the manors, mes- 
 suages, lands, tenements, 
 and hereditaments, com- 
 prised in the subsisting 
 lease or leases respectively, 
 shall be made chargeable 
 with the interest accruing 
 during his or her estate 
 therein ; and that no greater 
 arrear than for one year 
 shall be recoverable against 
 any person who shall be- 
 come entitled in remainder 
 
 for interest accrued during 
 the estate or term of any 
 person or persons entitled 
 to any preceding estate or 
 interest in the premises: 
 provided also, that it shall 
 be lawful for the said com- 
 missioners to direct an ap- 
 plication to be made to the 
 Court of Chancery in a sum- 
 mary way, for obtaining 
 direction as to the mode of 
 settling any such reversion, 
 or the equity of redemption 
 thereof, where the case shall 
 appear to them to be at- 
 tended with difficulty." 
 
 c Lesley's case, 2 Freem. 
 52. 
 
 d 1 Schoales and Lefroy, 
 123.
 
 chap, in.] Stat. 27 JH. 8. c. 10. 339 
 
 (1.) Any person, who is capable of taking Slct. vin. 
 the lesral estate directly and immediately to 0f trusts » as 
 
 ° more immedi- 
 
 himself, may acquire the equitable or bene- akiy referring 
 
 to the person 
 
 ficial interest in the same estate 6 . and acts of ces - 
 
 tuique trust. 
 
 But it is proper to observe in this place, who may be 
 that in case of a trust created for a mere 
 volunteer, not grounded on a meritorious 
 consideration, it is necessary to vest the 
 legal estate in a trustee ; for the Court of 
 Chancery will not compel the performance 
 of a contract or agreement in favour of a 
 mere volunteer f . In Ellison v. Ellison, 6. 
 Ves. 656. 662. lord Eldon says, " I take the 
 " distinction to be, that if you want the 
 " assistance of the court to constitute you 
 " cestuique trust, and the instrument is vo- 
 " luntary, you shall not have that assistance 
 " for the purpose of constituting you cestuique 
 " trust; as upon a covenant to transfer stock, 
 " &c. if it rests in covenant, and is purely 
 " voluntarily covenant; but if the party has 
 " completely transferred stock, &c, though 
 " it is voluntary, yet the legal conveyance 
 " being effectually made, the equitable inter- 
 " est will be enforced by this court g ." 
 
 e See before 91. Note, licence in mortmain, 
 
 the king may be cestuique f See Coleman v. Sarrell, 
 
 trust, Middleton v. Spicer, 1 Ves. J. 50. 
 
 1 Bro. C. C. 201. ; but an ' See Randall v. Randall, 
 
 alien cannot, 3 Cha. Rep. 2 P. W. 264. Fursacre v. 
 
 35. I apprehend, that a Robinson, cited 2 P. W. 
 
 corporation cannot take as 468. See also 2 P. W. 
 
 cestuique trust without a 176. and 248. 
 
 z 2
 
 340 Of Trusts smce the [chap, in 
 
 Sect. viii. It may be a question, what degree of re- 
 
 of trusts, as l a tionship is necessary to constitute a founda- 
 
 niorc ininieni- * 
 
 ateiy referring jj on f or raising a meritorious consideration 
 
 to the person 
 
 and acts of ces- sufficient to support a voluntary equitable 
 
 tuique trust. # _ 
 
 transfer of the above description? Whether 
 it is to be confined, as in the case of supply- 
 ing surrenders of copyhold property, to the 
 moral obligation of providing for a wife, or 
 child, or whether it is to be extended, as 
 in the case of a covenant to stand seised to 
 uses, to the consideration of blood generally, 
 has not been ascertained by any judicial de- 
 cision that I am aware of. In Edwards v. 
 countess of Warwick, 2 P. W. 176. lord 
 Macclesfield says, " I take it to be clear, 
 " that if I voluntarily, and without any con- 
 " sideration, covenant to lay out money in 
 "the purchase of land to be settled on me 
 "and my heirs, this court will compel the 
 " execution of such contract, though merely 
 "voluntary; for in all cases where it is a 
 " measuring cast between an executor and 
 " an heir, the latter shall in equity have the 
 "preference." 
 
 suSytrustees. (2.) Cestuique trust may bring his bill in 
 Chancery against his trustee for breach of 
 trust or to account/; but he has no remedy 
 against him at law s . Neither can cestuique 
 
 f SeeDigby v.Cornwallis, e Sturt v. Mellish,2 Atk. 
 3 Cha. Rep. 72. Pollard G12. Contra, I Eq. Ab. 
 v. Downes,2Cha. Ca. 121. 384. (D.) note (a.) In
 
 chap, in.] Stal. 27 H. 8. c. 10. 342 
 
 trust recover upon his equitable title in the Sect. vin. 
 courts of law as against a third person 1 ': but 0f trusts > as 
 
 more immedi- 
 
 it is necessary, in order to support or obtain a,e| y referring 
 i • • i iiiii • *° '' Ie p ers0n 
 
 his rights, that he should sue in the name ofa^i actsofces- 
 
 - . . -^ 7 . . -ii , tuique trust. 
 
 his trustees . Yet it is said, that a tender to 
 cestuique trust of money due upon bond, and 
 a refusal, is a good plea to an action of debt 
 upon the bond by his trustee 15 . 
 
 (3.) By the statute 7 Will. c. 25. s. 7. it is Cestuique trust 
 enacted, that no person shall be allowed to may vot^'afari 
 have any vote in election of members to serve e 
 in parliament, for or by reason of any trust 
 estate or mortgage, unless such trustee or 
 mortgagee be in actual possession, or receipt 
 of the rents and profits of the same estate ; 
 but that the mortgagor, or cestuique trust in 
 possession, shall and may vote for the same, 
 notwithstanding such mortgage or trust. 
 
 (4.) In the case of Packer and Wyndham 1 , conveyances 
 it is said, that every disposition of cestuique trust? 5 mque 
 trust is binding upon the trustee in a court of 
 
 Burkett v. Randall, 3 Mer. objections to a title, see 
 
 466. an issue was directed, Sugd-Vendors, 212. &c. 5th 
 
 " whether the testator J. S. ed. 
 
 " was, at his death, bene- * Ex parte Coysegame, 
 
 "fcially entitled to the pre- 1 Atk. 192. 
 " mises in question." k Lynch v. Clemence, 
 
 h Doe v. Staples, 2 Term Lutw. 179. ed. 1718. See 
 
 Rep. 084. Barnes v. Crow, the cases collected in note 
 
 4 Bro. C. C. 2. Whether to pi. 2. 18 Vin. 303. as 
 
 courts of law will, upon an to the effect of a release 
 
 action for a deposit, as be- by cestuique trust claiming 
 
 tween vendor and pur- under a bond or covenant, 
 chaser, enter into equitable ' Prec. Cha. 415. 
 
 z 3
 
 ;342 Of Trusts since the [chap. hi. 
 
 Sect. viii. equity; and even at law. But although the 
 of tmsts, as conveyance of cestuique trust is conclusive 
 atdy referring upon the trustee to the extent of the bene- 
 
 td liie person , . . . 
 
 and acts of ces- ficial interest conveyed, yet a trust is not 
 alienable by the rules of the common law, and 
 I have, in a preceding part of this work, at- 
 tempted to show, that cestuique trust can- 
 not convey the legal estate by virtue of the 
 statute 1 Rich. 3. 
 
 conveyance (4. a.) In the transfer of equitable rights, 
 
 by cestuique . . 
 
 trust in fee- it is usual in practice to adopt the species of 
 conveyance applicable to the assurance of the 
 legal estate ; as if a person be seized of the 
 equitable estate in fee-simple, he usually con- 
 veys it by lease and release, or bargain and 
 sale inrolled. But this is never absolutely 
 necessary ; and in case an equitable interest is 
 sold, it is clear, that the mere payment of the 
 purchase-money would operate as a transfer 
 ofit. 
 
 Conveyances by (4. b.) B u t when the owner of an equitable 
 
 cestuique trust 
 
 in fee-taii, or interest cannot, if such equitable interest 
 
 being married 
 
 women. were converted into a legal estate, convey it 
 
 without the aid of a fine or recovery, it will be 
 necessary for him to use the same kind of 
 assurance by matter of record in the transfer 
 of his beneficial interest, as if it had been a 
 legal estate; and therefore the equitable rights 
 of tenants in tail and married women must 
 be conveyed by fine or recovery.
 
 chap, ill.] Stat. 27 H. 8. c. 10. 343 
 
 As to tenants in tail, it has been said, that s ECT . vin. 
 if the trustee, having the legal estate, joins 0ftrusts > as 
 
 ° " more lramedi- 
 
 with his cestuique trust, in making a feoff- ate, y referri,| g 
 
 to the person 
 
 ment with livery, it will destroy the equi- and acts of ces- 
 
 tuique trust. 
 
 table entail m . But this case cannot be relied 
 
 upon. If the equitable tenant in tail has the Tenants in tail. 
 
 immediate reversion in fee, he may acquire 
 
 the equitable fee-simple by a fine; but if 
 
 there are equitable remainders expectant upon 
 
 his estate tail, it will be necessary for him to 
 
 suffer a recovery". But where there is an 
 
 equitable estate tail, attached to, or arising 
 
 from, a legal estate of the same extent, with 
 
 legal remainders, an equitable recovery will 
 
 not bar the legal remainders . The rule may 
 
 be generally stated, that where the tenant, 
 
 against whom the writ in a common recovery 
 
 is brought, has only an equitable estate of 
 
 freehold, the recovery, suffered upon that 
 
 m Bowater v. Elly, 2 See Otway v. Hudson, 2 
 
 Vern. 344. Indeed it has Vein. 533. and Mr. Cox's 
 
 been said, that a common note to Dunn. v. Green, 3 
 
 bargain and sale by cestui- P. W. 10. 
 que trust, is alone sufficient n North v. Champernoon, 
 
 to bar the entail. 1 Vern. 2 Cha. Ca. 63. 78. 1 Vern. 
 
 440. 2 Vein. 133. But 13. S. C. 1 P. W. 91. S. 
 
 that opinion has been over- C. Carpenter v. Carpen- 
 
 ruled. 1P.W. 91. 1 Ves. ter, 1 Vern. 440. Bever- 
 
 260. Legate v. Sewell, 2 ley v. Beverley, 2 Vern. 
 
 Vern. 552. Kirkham v. 131. Boteler v. Allington, 
 
 Smith, Amb. 518. With re- 1 Bro. Cha. Ca. 72. 
 spect to copyhold lands, ° Robinson v. Cuming, 
 
 where there is no particular 1 Atk. 473. Salvin v. 
 
 custom to bar the entail of Thornton, 1 Bro. Cha. Ca. 
 
 the legal estate, it seems, 73. in note. Amb. 545. 
 
 that a mere devise by ces- 699. S. C. Shaplaud v. 
 
 tuique trust is sufficient to Smith, 1 Bro. Cha. Ca. 74. 
 bar the entail of the trust. 
 
 z 4
 
 344 
 
 Of Trusts since the [chap. hi. 
 
 Sect. viii. equitable freehold, cannot bar a legal estate 
 
 of trusts, as tail vested in the vouchee, or any legal re- 
 
 atei j referring mainder. But the converse is not true ; for 
 
 «mi "acts of "cs- if a legal, as well as beneficial, estate of free- 
 
 tmquetrus. \^ ]^ \ s conveyed to the tenant to the writ, 
 
 the recovery will bar an equitable estate tail 
 
 in the vouchee, and all equitable remainders 
 
 expectant upon it p . 
 
 Married wo- 
 men. 
 
 When a married woman is entitled to an 
 equitable freehold interest, not settled to her 
 separate use, it is necessary, that she should 
 concur with her husband in levying a fine, 
 in order to pass it : but when personal pro- 
 perty is settled to the separate use of a feme 
 covert, she is, generally speaking, entitled to 
 dispose of it, in the same manner, as if she 
 were a feme sole, although there be no express 
 power of disposition reserved to her q . But 
 where an annuity, or annual income, is settled 
 to the separate use of a married woman, she 
 
 p See Philips v. Brydges, 
 3 Yes. 120. 128. Good- 
 rich v. Brown, 2 Freem. 
 180. 1 Cha. Ca. 49. It has 
 recently been determined, 
 that where an equitable te- 
 nant in tail conveys to a 
 mortgagee in fee, and after- 
 wards suffers a recovery, it 
 is not necessary, that the 
 mortgagee should concur in 
 making the tenant to the 
 praecipe. Nouaiile v. Green- 
 wood, Turner's Cha. Rep. 
 26. 
 
 1 In Peacock v. Monk, 
 2 Ves. 191. lord Hard- 
 wicke says, " That as to 
 
 ' personal estate, undoubt- 
 
 ' edly where there is an 
 
 ' agreement between hus- 
 
 ' band and wife before 
 
 1 marriage, that the wife 
 
 ' shall have to her separate 
 
 ' use, either the whole or 
 
 ' particular parts, she may 
 
 ' dispose of it by an act in 
 
 ' her life, or by will; she 
 
 ' may do it by either, 
 
 ' though nothing is said of 
 
 f\ the manner of disposing 
 
 " of it." See Wagstaff v. 
 
 Smith, 9 Ves. 520. Sur- 
 
 giss v. Crop, 13 Ves. 190. 
 
 Heatley v. Thomas, 15 
 
 Ves. 59G.
 
 chap, in.] Stat. 27 H. 8. c. 10. 345 
 
 may be restrained from appointing the unac- Sect. vm. 
 crued payments of it r . Of trusts, as 
 
 1 ^ more immedi- 
 
 ately referring 
 to the person 
 
 There is a difference as to real property, and acts of ces- 
 
 .... tuique trust. 
 
 In the anonymous case, 2 Ves. 192. it is said, 
 that as to real estate, there must be an ex- 
 press power of appointment, in order to en- 
 able a feme covert to devise or convey it ; but 
 as to personal estate, the separate property of 
 the wife, it is incident to it, that she may 
 make a will or appointment of it. It has 
 since been held 3 , that where a real estate is 
 settled to the separate use of a married woman 
 during her life, she may, without any express 
 power of appointment for that purpose, con- 
 vey her equitable estate for life by deed, with 
 out the aid of a fine. I apprehend however, 
 that when an estate in fee-simple is conveyed 
 for the separate use of a married woman, 
 without an express power of appointment 
 reserved to her, she cannot during her cover- 
 ture, dispose of the fee-simple without con- 
 curring with her husband in levying a fine. ' 
 
 It may be proper here to observe, that 
 when stock was settled upon a feme covert, for 
 life for her separate use, and after her death, 
 upon such trusts, as she should, either covert 
 or sole, by will appoint, and for want of ap- 
 
 r Per Lord Chanc. in Py- 694. But otherwise in the 
 
 bus v. Smith, 2 Bro. Cha. case of a male. Brandon 
 
 Ca. 347. Jackson v. Hob- v. Robinson, 18 Ves. 429. 
 
 house, 2 Mer. 483. See s Burnaby v. Griffin, 3 
 
 Mores v. Huish, 5 Ves. Ves. 2G6.
 
 346 Of Trusts since the [chap. hi. 
 
 Sect. vhi. pointment, in trust for her executors and 
 Of trusts, as administrators for their own use and benefit, 
 atdy referring it was determined, that the wife could not, 
 Indacts^ofces- during; coverture, dispose of the stock by 
 tuique trust. ^.^ the Master of the Rolls observed, 
 
 that the restriction was only during the wife's 
 then coverture 3 . 
 
 In Anderson v. Dawson, 15 Ves. 532. 
 personal estate was settled upon a feme co- 
 vert for life, for her separate use, and after 
 her decease, upon such trusts, as she should 
 by will appoint, and for want of appointment, 
 in trust for her next of kin, their executors, 
 administrators, and assigns, according to the 
 statute for the distribution of intestates' effects; 
 and it was decided, that the claims of the 
 next of kin could only be defeated by a due 
 exercise of the power of appointment 5 . 
 
 It seems, that where money is directed to 
 be laid out in the purchase of land to be set- 
 tled upon a. feme covert, either in fee-simple, 
 or in tail, with the immediate reversion in fee 
 to herself; she may, by an application to the 
 Court of Chancery, and upon being solely 
 and separately examined by analogy to the 
 form of a fine at law, obtain the payment of 
 the money ; although it should seem, that 
 
 a Sockett v. Wray, 4 Atk. 452. Pearson v. 
 
 Bro. Cha. Ca. 483. Brereton, 3 Atk. 71. Cun- 
 
 b See Heatley v. Thomas, ningham v. Moody, 1 Ves. 
 
 15Ves. 596. 176. Binford v. Bawtlen, 
 
 c Oldham v. Hughes, 2 1 Ves. J. 512.
 
 tuique trust. 
 
 chap, in.] Stat. 27 H. 8. c. 10. 347 
 
 where a feme covert is entitled to the interest sect. vm. 
 of personal estate for life, and not settled to 0f tru . 8ts > as 
 
 r _ more lmmedi- 
 
 her separate use, the court will not upon exa- atel y referring 
 
 to the person 
 
 mination allow her to part with her life in- andacts ofces- 
 terest d . 
 
 When personal estate is settled for the se- 
 parate use of the wife for life, and if she sur- 
 vive her husband, then upon her absolutely ; 
 and if she die in the lifetime of her husband, 
 then upon such trusts, as she shall by deed 
 or will appoint, and for want of such ap- 
 pointment upon her executors and adminis- 
 trators: or, if it be settled to the separate 
 use of the wife for life, and if the husband 
 survive the wife, then upon him absolutely; 
 but if she survive the husbaud, then upon 
 herself absolutely: in neither case, will the 
 court, upon the application and examination 
 of the wife during coverture, allow the settled 
 property to be transferred e . 
 
 It is sometimes a question, what words 
 will create a trust for the separate use of a 
 feme covert. In Tyrrell v. Hope, 2 Atk. 561. 
 the Master of the Rolls observed, that the 
 word enjoy, was very strong to imply a sepa- 
 rate use to the wife. A direction to pay rents 
 or interest, " into the hands of the testator's 
 
 d Fraser v. Baillie, 1 10 Ves. 580. See Lee v. 
 Bro. Cha. Ca. 518. Muggeridge, 1 Ves. and B. 
 
 ' Richards v. Chambers, 118.
 
 348 Of Trusts since the [chap, ill- 
 
 Sect. vin. "daughter, for her own use and benefit*," 
 Of trusts, as an( j a direction, " that trustees should not be 
 
 more immedi- ' 
 
 atdy referring u troubled to see to the application of any 
 
 to the person *■ *• J 
 
 and acts of ces- « sum or sums paid to Ann Hill, and Sophia 
 
 tuiquc trust. * * 
 
 " Lee, but their receipts in writing; respec- 
 " tively shall be a sufficient discharge to my 
 " said trustees 8 ;" have been considered suffi- 
 cient to create a trust for the separate use 
 of a feme covert ; but it has been lately deter- 
 mined, that the words, " for her own use and 
 " benefit" will not have that effect 11 . 
 
 Tenants for life. (4. c.) It has been decided, that a fine, or 
 other alienation by cestuique trust for life, 
 will not operate as a forfeiture of his trust 
 estate*, nor will such fine, or other convey- 
 ance, by him, destroy any contingent remain- 
 ders expectant upon his life estate". 
 
 Sect. ix. IX. It remains to consider the trustee, 
 
 of the trustee, an( j the nature of his estate and office. 
 
 his estate and 
 office. 
 
 who may be (].) The modern doctrine of trusts differs 
 
 perhaps in no instance so essentially from the 
 system of uses, as in the construction of 
 courts of equity, upon the capacity or liability 
 of persons to act as trustees. 
 
 f Hartley v. Hurle, 5 , cited 5 Ves. 520. and 
 
 Ves. 540. Kirk v. Paulin, 7 Vin. 95. 
 
 s Lee v Prideaux, 3 ' Lethieulier v. Tracy, 3 
 
 Br. Cha. Ca. 381. Atk. 728. Whetstone v. 
 
 h Wells v. Sayers, 4 Mad. Bury, 2 P. W. 14G. 
 
 409. Roberts'v. Spicer, 5 " 1 Ves. 27. 
 Mad. 491. But sec Jones v. 
 
 trustees.
 
 chap, in.] Stat. 27 H. 8. c. 10. 349 
 
 Formerly, we have seen, that the intention Sbct. ix. 
 of the parties has been frequently frustrated ™ JJj^JJf 
 by the rigid adherence of the Court of Chan- olllce - 
 eery to the technical scruples of the common 
 law; for uses were considered as annexed to 
 the estate of the feoffees in the land, and not 
 to the land itself. Against the notion of an 
 use attaching upon the land, we find the fol- 
 lowing curious argument: — " It is absurd to 
 " say, that confidence and trust can be re- 
 " posed in land, which want sense; and 
 " which in regard of sense is inferior to brute 
 " beasts; and it would be less absurd to say, 
 " that beasts may be trusted, who have sense 
 "and want reason, than land, which wants 
 " sense and reason also, should be trusted*." 
 But notwithstanding the force of this grave 
 argument, the courts of equity in later times 
 have said, that a trust shall never fail on ac- 
 count of the disability, or non-appointment, 
 of the trustee ; because they hold, that the 
 trust, if properly created, will fasten upon, 
 and attach to the land, intended to be made 
 subject to it*. The king y , or a corporate 7 
 body, may be a trustee ; and where an estate 
 was devised to the separate use of a feme co- 
 vert, without the intervention of trustees, it 
 was determined, that the husband should be 
 
 w 1 Co. 127. Vern. 439. 1 Ves. 453. 
 
 x Moggridge v. Thack- 3 Atk. 309. 
 
 well, 3 Bro. 517. z 1 Ves. 467, 468. 536. 2 
 
 y Kildare v. Eustace, 1 Vern. 412.
 
 350 Of Trusts since the [chap. hi. 
 
 Sect. ix. a trustee for his wife a . So in a case b , where 
 of the trustee, a devise to a corporation (in trust) was void 
 
 his estate and 
 
 office. by the late statute of mortmain, the court 
 
 decree, that the heir at law of the devisor 
 should be a trustee for the purposes of his 
 will. 
 
 But although the courts now generally 
 consider the trust as attaching upon the land 
 itself, so as to convert all persons, seised of, 
 or acquiring the legal interest, into trustees, 
 yet this rule has an exception in the case of a 
 conveyance by a trustee for a valuable consi- 
 deration to one, who has no notice of the 
 trust . In this instance the purchaser shall 
 not be affected by the trust. 
 
 of incum- (2.) The rule will be further exemplified 
 
 brances of, and . . , , ~ 
 
 forfeitures by, by considering, how the estate of the trustee 
 
 the trustee at . _ , . , 
 
 law. is affected by his own acts or incumbrances. 
 
 Before the statute of uses, the estate of the 
 feoffee was subject to all the incidents, to 
 which a real ownership was liable ; owing to 
 this very notion, that the use was annexed to 
 the estate of the person seised of the legal 
 interest, and not to the land itself; and there- 
 
 a Bennett v. Davies, 2 Freem. 43. pi. 47. 1 P. 
 
 P.W. 316. 2Ves. G65. W. 278, 279. See as to 
 
 b Sonley v. Clock-ma- the use before the statute, 
 
 kers' Company, 1 Bro. 81. ante 58. 
 
 c Snagg's case, cited 2
 
 chap, in.] Stat. 27 H. 8. c. 10. 351 
 
 fore if privity of estate failed in the person, sect. ix. 
 acquiring the legal seisin, there was an end of °. f thetrustee ' 
 
 Ins cstritc ?incl 
 
 the use. Hence arose just complaints against office. 
 uses, and their inconviences. After the in- 
 troduction of trusts, the Court of Chancery 
 considered the trustee as having the legal 
 ownership, so far only as to be beneficial to 
 cesiuique trust, and without being subject to 
 any disadvantage, which may arise from the 
 trustee personally, in consequence of his sei- 
 sin of the legal estate. 
 
 The legal estate vested in the trustee, is in 
 equity, protected against his judgments, and 
 other incumbrances, and against his bank- 
 ruptcy' 1 ; and from the dower and freebench 6 
 of his wife ; and from the tenancy by curtesy 
 of the husband of a female trusteed 
 
 In Geary v. Bearcroft g , it is said, that if 
 " a man conveys lands in trust, and the 
 " trustee commits felony, these lands shall be 
 " forfeited, though he may have relief in 
 " equity." It is the same, I apprehend, if the 
 trustee commit treason ; for as the cestuique 
 trust forfeits his estate for treason, it is not 
 consonant to justice, that the trustee should 
 
 a See 1 P. W. 278. 1 vant v. Pope, 2 Freem. 71. 
 
 Bro. 278. 2 P. W. 318. 3 f Casborne v. Inglis, 7 
 
 P. W. 187. note A. Vin. Ab. 157. 
 
 e See Hinton v. Hinton, g Carter, 67. But see 
 
 2Ves. 634. 638. Noel v. Lane, 39. 54. 
 Jevon, 2 Freem. 43. Be-
 
 Of the trustee, Pawlet 
 
 his estate and 
 
 office. 
 
 352 Of Trusts since the [chap. in. 
 
 Sect. ix. forfeit it for the same offence. In the case of 
 v. the Attorney-general 11 , baron 
 Atkyns strongly supported this opinion, upon 
 the ground, that the king is the fountain and 
 head of justice and equity ; and that it shall 
 not be presumed, that he will be defective in 
 either: and that it would derogate from the 
 king's honour to imagine, that what is equity 
 against a common person, should not be 
 equity against him. Since, however, the late 
 statute', it is not probable, that a question 
 will arise, in the case of the king, either upon 
 the felony, or treason of a trustee. The case 
 of a subject, claiming as lord by escheat, is 
 
 11 Hard. 465. 
 
 s 39, 40 Geo. 3. c. 88. 
 
 , 12. it is enacted, " That 
 it shall be lawful for his 
 
 ; majesty, his heirs and 
 successors, by warrant, 
 under his or their sign- 
 manual, to direct the ex- 
 ecution of any trusts or 
 purposes to which any 
 manors, messuages, lands, 
 
 ; tenements, or heredita- 
 ments, which have es- 
 cheated or shall escheat 
 to his majesty, his heirs 
 or successors, shall have 
 been liable at the time 
 the same so escheated 
 respectively, or would 
 
 ; have been liable in 
 the hands of any his 
 majesty's subjects ; and 
 to make any grants of 
 such manors, lands, te- 
 nements, and heredita- 
 ments, respectively, to 
 
 " any trustee or trustees, 
 " or otherwise, for the ex- 
 " ecution of such trusts ; 
 " and to make anv grants 
 "of any lands, tenements, 
 " or hereditaments, which 
 " have escheated, or shall 
 " escheat as aforesaid to 
 " any person or persons, 
 " either for the purpose of 
 " restoring the same to auy 
 " of the family of the per- 
 " sou or persons whose es- 
 " tates the same had been, 
 " or of rewarding any per- 
 " son or persons making 
 " discovery of any such es- 
 " cheat, as to his majesty, 
 " his heirs or successors 
 " respectively, shall seem 
 " fit; auy thing in the 
 " said acts, or any of them, 
 " to the contrary notwith- 
 " standing." See 47 Geo. 
 3. sess. 2. c. 24. and 59 
 Geo. 3. c.91.
 
 *:hap. in.] Stat 27 H. 8. c. 10. ;tf;j 
 
 more doubtful. In the case of Eales v. Eng- Sect - 1X - 
 land k , the Master of the Rolls said, " If the °. f the , | rustee .' 
 
 ' ' his estate ana 
 
 " trustee die without heir, the lord, by es- office - 
 " cheat, will have the land at law ; yet sub- 
 " ject to the trust here." The point, I be- 
 lieve, has not been directly determined'. 
 
 In a case, where a bill was brought to 
 redeem a mortgage, which had vested in the 
 king by the attainder of the heir of the mort- 
 gagee, sir Matthew Hale was of opinion, 
 that the king could not in equity be com- 
 pelled to reconvey; but that an amoveas 
 manum only lay in such case, and that was 
 all which could be done, in case a trustee 
 forfeited his estate". 
 
 In Reeve v. the Attorney-general, 2 Atk. 
 223. an estate, escheated to the crown, was 
 charged in equity by the will of the person 
 dying, and for want of whose heir the estate 
 escheated, with several legacies. The bill 
 was brought by the legatees to have the estate 
 sold, and the question was, whether an es- 
 tate escheated to the crown can be affected 
 by a trust. The bill was dismissed. See 
 S. C. cited 1 Ves. 446. where it is reported 
 lord Hardwicke said, that where the crown 
 
 k Prec. Cha. 200. 1 Eq. l See the arguments in 
 
 Ab. 384, in note. Contra Burgess v. Wheate, 1 Eden, 
 in Peachy v. Somerset, 177. 
 
 Prec. Cha. 454. n Pawlett v. the Attorney- 
 
 general, Hard. 467. 
 
 VOL. I. A A
 
 354 Of Trusts since the [chap. hi. 
 
 Sect. ix. was a trustee, the court had no jurisdiction 
 of the trustee, ^ decree a conveyance, but they must go to 
 
 Ins estate and * ' J ° 
 
 office. a petition of right. S. C. cited in Hovendon v. 
 
 lord Annesley, 2 Schoal. 617. 
 
 Trustees inca- (3.) The legislature has, in several in- 
 
 pacitated ; as i 1 i . • 1 
 
 infants, &c stances, enabled trustees incapacitated, or re- 
 Conveyances by 'ir 
 
 them. strained from conveying, to execute convey- 
 
 ances of the legal estate, vested in them as 
 trustees. By the statute of 7 Anne, c. 19., in- 
 fants having estates in lands by way of trust 
 or mortgage, are enabled under the direction 
 of the Court of Chancery to convey the lands, 
 of which they are trustees 1 ". 
 
 m Whereas many incon- 
 veniences do and may arise, 
 by reason that persons un- 
 der the age of one-and- 
 twenty years, having es- 
 tates in lands, tenements, 
 or hereditaments, only in 
 trust for others, or by 
 way of mortgage, cannot 
 (though by the direction of 
 the cestuique trust or mort- 
 gagor) convey any sure 
 estate in any such lands, te- 
 nements, or hereditaments, 
 to any other person or per- 
 sons : for remedy thereof 
 be it enacted by the queen's 
 most excellent majesty, by 
 and with the advice and 
 consent of the lords spiri- 
 tual and temporal, and 
 commons, in this present 
 parliament assembled, and 
 by the authority of the 
 same, That from aud after 
 the 10th day of May 1709, 
 
 it shall and may be lawful 
 to and for any such person 
 or persons under the age of 
 one-and-twenty years, by 
 the direction of the High 
 Court of Chancery, or the 
 Court of Exchequer, signi- 
 fied by an order made upon 
 hearing all parties concern- 
 ed, on the petition of the 
 person or persons for whom 
 such infant or infants shall 
 be seised or possessed in 
 trust, or of the mortgagor 
 or mortgagors, or guardian 
 or guardians of such infant 
 or infants, or person or per- 
 sons entitled to the monies 
 secured by or upon any 
 lands, tenements, or here- 
 ditaments, whereof any in- 
 fant or infants are or shall 
 be seised or possessed by 
 way of mortgage, or of the 
 person or persons entitled 
 to the redemption thereof,
 
 chap, hi.] Stat. 27 H. 8. c. 10. 355 
 
 It is conceived, that this act extends only Sect.ix. 
 to express, and not to mere constructive, or the trustee, 
 
 1 Ins estate and 
 
 trusts ; and indeed there are several deter- office - 
 mined cases, grounded upon this distinc- 
 tion"; and although the lord chancellor 
 King, in the case ex parte Vernon , made an 
 order for an infant to convey, under a con- 
 structive trust, on account of the small value 
 of the estate, he expressly declared, that, 
 where there is no declaration of trust in writ- 
 ing, he should, for the future, leave the trustee 
 to bring his bill, and have a decree against 
 the infant, to convey. 
 
 The case of Price v. Oneby, in 1745, and 
 noticed by Mr. Fearne in his posthumous 
 works 9 , is indeed an instance, in which the 
 statute of Anne was not confined to express 
 trusts, but extended to trusts arising under a 
 decree. That, however, was the case of a 
 partition, which, as Mr. Fearne observes, was 
 
 to convey and assure any fants or infant were, at the 
 such lands, teaements, or time of making such con- 
 hereditaments, in such man- veyance or assurance, of 
 ner as the said Court of the full age of one-and- 
 Chancery or the Court of twenty years: any law, 
 Exchequer shall, by such custom, or usage, to the 
 order, so to be obtained, contrary in any wise not- 
 direct, to any other person withstanding, 
 or persons ; and such con- ■ Goodwyn v. Lister, 3 
 veyance or assurance, so to P. W. 337. Anon. ibid. 389. 
 be had and made as afore- in note A. 
 said, shall be as good and n 2 P. W. 549. 
 effectual in law to all in- p Fearne's Post. Works, 
 tents and purposes what- 239. 
 soever, as if the said in- 
 
 A A 2
 
 350 Of Trusts since the [chap. hi. 
 
 Skct. ix. for the infant's benefit, and what he was com- 
 Of the trustee, pellable to do, by law: and it is to be ob- 
 
 his estate and L 
 
 office. served, that in a subsequent case q , decreed 
 
 in 1753, which was also a decree upon a par- 
 tition, the court refused to direct any convey- 
 ance of the legal estate, until one of the par- 
 ties (an infant) came of age. 
 
 The case of Smith v. Hibbart r is supposed 
 to record the opinion of lord Thurlow, that 
 a constructive trust is within the statute of 
 Anne : but in a late instance, in the case of 
 Jerdon v. Foster 5 and others, at the Rolls, 
 there was a reference to the master, to ascer- 
 tain and state, whether an infant, subject to 
 a constructive trust, was a trustee within the 
 statute of Anne ; and he reported, that the 
 infant was not a trustee within that statute. 
 The report was confirmed, but I have not 
 learnt, that the point was argued. 
 
 The statutes 39, 40 Geo. 3. c. 88. s. 12. and 
 47 Geo. 3. sess. 2. c. 24. before noticed, have 
 authorized the king to direct the execution 
 of any trusts affecting lands, which have be- 
 come vested in him in consequence of escheat, 
 forfeiture, or otherwise; and by the statute 
 
 i Tuckfield v. Buller, June 1804. The master's 
 
 Amb. 197. report is dated the 17th of 
 
 r 2 Dick. 730. March 1809, and the de- 
 
 *The decrees in this case cree confirming the report, 
 
 are in March 1804, and the 12th of April 1809.
 
 chap, in.] Slat. 27 H. 8. c. 10. 
 
 357 
 
 4 Geo. 2. c. 10. u , idiots and lunatics, and Sect.ix. 
 their committees, are empowered, under the 0f the truste f • 
 
 1 liis estate and 
 
 u It enacts, " That from 
 " and after the 24th day of 
 " June 1731, it shall and 
 " may be lawful to and for 
 " any such person or per- 
 " sons being idiot, lunatic, 
 " or non compos mentis, or 
 " for the committee or 
 " committees of such per- 
 " son or persons, in his, her, 
 " or their name or names, 
 " by the direction of the 
 "lord chancellor of Great 
 " Britain, or the lord keep- 
 " er, or commissioners of 
 " the great seal of Great 
 " Britain for the time be- 
 " ing, signified by an order 
 " made upon hearing all 
 " parties concerned, on the 
 " petition of the person or 
 " persons for whom such 
 " person or persons, being 
 " idiot, lunatic, or non 
 " compos mentis, shall be 
 " seised or possessed in 
 " trust, or of the mort- 
 " 8 a g or or mortgagors, or 
 " of the person or persons 
 " entitled to the monies se- 
 " cured by or upon any 
 " lands, tenements, or he- 
 " reditaments, whereof any 
 " such person or persons 
 " being idiot, lunatic, or 
 " non compos mentis, is, or 
 " are, or shall be seised or 
 " possessed by way of 
 " mortgage, or of the per- 
 " son or persons entitled 
 " to the redemption thereof, 
 " to convey and assure 
 " any such lands, tene- 
 " ments, or hereditaments, 
 " in such manner as the 
 " lord chancellor of Great 
 A 
 
 " Britain, or lord keeper, 
 " or commissioners of the 
 " great seal of Great Bri- 
 " tain, shall, by such or- 
 " der, so to be obtained, 
 " direct, to any other per- 
 " son or persons ; and such 
 " conveyance or assurance, 
 " so to be had and made 
 " as aforesaid, shall be as 
 " good and effectual in law, 
 " to all intents and pur- 
 " poses whatsoever, as if 
 " the said person or per- 
 " sons being idiot, lunatic, 
 " or non compos mentis, 
 " was, or were, at the 
 " time of making such 
 " conveyance or assurance, 
 " of sane mind, memory, 
 " and understanding, and 
 " not idiot, lunatic, or non 
 " compos mentis, or had by 
 " him, her, or themselves, 
 " executed the same ; any 
 " law, custom, or usage to 
 " the contrary in any wise 
 " notwithstanding." 
 
 By the 1, 2 Geo. 4. c. 
 114. it is enacted, " That 
 " from and after the passing 
 " of this act, it shall and 
 " may be lawful to and for 
 " the lord chancellor of 
 " Great Britain, or the lord 
 " keeper, or commissioners 
 " of the great seal of Great 
 " Britain for the time being, 
 " by an order made on the 
 " petition of the person or 
 " persons, for whom such 
 " person or persons being 
 " idiot, lunatic, or non com* 
 " pos mentis (but not having 
 " been found such by inqui- 
 " sition), shall be seised or 
 i3 
 
 office.
 
 358 Of Trusts since the [chap. in. 
 
 Sect. ix. direction of the lord chancellor, to convey 
 of the trustee, ] a nds vested in them in trust, or by way of 
 
 liis estate and 
 
 office. mortgage 1 . 
 
 General devises 
 by trustees. 
 
 (4.) If a trustee devises all the real estates, 
 of which he is seised, to A. and his heirs 
 
 possessed in trust, or of 
 the mortgagor or mort- 
 gagors, or of the person 
 or persons entitled to the 
 monies secured by or upon 
 any lands, tenements, or 
 hereditaments, whereof 
 any such person or per- 
 sons, being idiot, lunatic, 
 or non compos mentis {hut 
 not having been found 
 such by inquisition), is, or 
 are, or shall be seised or 
 possessed by way of mort- 
 gage, or of the person or 
 persons entitled to the 
 ! equity of redemption 
 thereof, to appoint such 
 person or persons as to 
 the lord chancellor, lord 
 keeper, or lords commis- 
 sioners of the great seal of 
 Great Britain respectively 
 shall seem meet, on behalf 
 of such person or persons, 
 being so idiot, lunatic, or 
 non compos mentis, as 
 aforesaid, to convey and 
 assure any such lands, te- 
 nements, or hereditaments 
 in such manner as the 
 lord chancellor of Great 
 Britain, or lord keeper, or 
 1 lords commissioners of the 
 great seal of Great Bri- 
 ; tain, shall by such order so 
 : to be obtained, direct, to 
 ' any other person or per- 
 1 sons ; and such convey- 
 : ance aud assurance so to 
 
 " be had and made as afore- 
 " said, shall be as good and 
 " effectual in law, to all in- 
 " tents aud purposes what- 
 " soever, as if the said per- 
 " souorpersons,beingidiot> 
 " lunatic, or non compos 
 fi mentis, was or were, at the 
 " time of making such con- 
 " veyance or assurance, of 
 " sane mind, memory, and 
 " understanding, and not 
 " idiot, lunatic, or non cotn- 
 " pos mentis j and had by 
 " him, her, or themselves, so 
 " conveyed and assured 
 " such lands, tenements,and 
 " hereditaments; any law, 
 " custom, or usage to the 
 " contrary in anywise not- 
 " withstanding. 
 
 " And be it further enact- 
 " ed.Thatall and every such 
 " person or persons, being 
 " to be appointed by virtue 
 " of this act, shall and may 
 " be empowered and com- 
 " pelled by such order so as 
 " aforesaid to be obtained, 
 " to make such conveyance 
 " and conveyances, assur- 
 " anee or assurances as 
 " aforesaid, in like manner 
 " as trustees or mortgagees 
 " of sane memory are com- 
 " pellable to convey, sur- 
 " render,or assign their trust 
 " estates or mortgages." 
 
 a Upon the construction, 
 of this act, see ex parte
 
 chap, in.] Slat. 27 //. 8. c. 10. .359 
 
 generally ; the legal estate, of which he is trus- Sfcr. ix. 
 tee, will pass to the devisee, subject to the 0f the trustec > 
 
 1 bis estate and 
 
 original trust". But if the real estate of the office, 
 trustee is devised for purposes, or under limi- 
 tations, inconsistent with the trust, under 
 which the trustee holds the legal estate, the 
 devise will not include the trust property; as 
 if the devise be of all the trustee's real estates 
 to A., in trust to sell, or to A. for life, with 
 remainder to his first and other sons succes- 
 
 Tutin, 3 Ves. and B. 149. 
 See as to the transfer of 
 stock by trustees, not qua- 
 lified, 36 Geo. 3. c. 90. 
 
 w Braybrooke v. Iuskipp, 
 8 Ves. 417. 
 
 Ex parte Whitacre in 
 the matter of Samuel Val- 
 lis, an infant. At the 
 Rolls, 22d of July 1807. 
 
 A mortgagee in fee de- 
 vised " all the rest and re- 
 " sidue of his lands and 
 " hereditaments, and goods, 
 " chattels, mortgages, mo- 
 fi nies, and securities for 
 '•' money, and all other his 
 " real and personal estate, 
 " not thereinbefore dispos- 
 " ed of, unto his nephews 
 " Samuel Rolles, John 
 " Rolles, and Samuel Val- 
 " lis, and to his grand-ne- 
 " phew Samuel White, to 
 " be equally divided be- 
 " tween and among them 
 " as tenants in common, and 
 lt to their respective heirs, 
 " executors, and adminis- 
 " trators, according to the 
 " nature of their respective 
 " estates;" and the testator 
 appointed the said four de- 
 
 visees, executors of his will. 
 Samuel Vallis, one of 
 the devisees, died, leaving 
 an infant heir at law ; and 
 it was referred to the mas- 
 ter to inquire, whether the 
 infant heir was a trustee or 
 mortgagee within the stat. 
 of 7th Anne. The master 
 reported, that as the words 
 in the residuary clause ap- 
 peared to him to be suffici- 
 ently comprehensive to in- 
 clude the legal estate in the 
 mortgaged premises, he con- 
 ceived, that the freehold and 
 inheritance of the said mort- 
 gaged premises passed by 
 the will of the mortgagee to 
 the said Samuel Rolles, 
 John Rolles, Samuel Val- 
 lis, and Samuel White, as 
 tenants in common : and 
 he was of opinion that the 
 said Samuel Vallis was an 
 infant mortgagee of one 
 fourth part of the mort- 
 gaged premises. The mas- 
 ter's report was confirmed, 
 and the infant was directed 
 to convey pursuant to the 
 act. 
 
 A A 4
 
 360 Of Trusts since the [chap. hi. 
 
 Sect. ix. sively in tail, or to A. in tail, or to A. and 
 of the trustee, jjj s } ie j r s, charged with the payment of the 
 
 lus estate and 70 1 * 
 
 office. testator's debts and legacies ; for as, in these 
 
 cases, the trustee could not equitably bind 
 the estate with limitations, or subject it to 
 equitable interests, of this kind, courts of 
 justice will presume, that he did not intend 
 to devise the trust estate. 
 
 The rule, which I have stated, may, I 
 think, be considered as the result of recent 
 determinations; but the decisions have been 
 various and contradictory*. The old rule was 
 otherwise; for the courts of law, not looking 
 beyond the bare legal estate, did not distin- 
 guish between the legal and beneficial inter- 
 est; and therefore considered all property, to 
 which the trustee had a legal right, as his 
 property; and as such passing by a devise of 
 his estate 5 '. It is perhaps to be lamented, 
 that the old rule, simple in itself, and not 
 liable to misconstruction, has not prevailed. 
 
 The construction of a devise by a trustee, 
 or mortgagee, of a legal estate, must properly 
 be determined in a court of law; and by 
 
 * See duke of Leeds v. parte Morgan, 10 Ves. 433. 
 M unday, 3 Ves. 348. Ex » Marlow v. Smith, 2 P. 
 
 parte Sergison, 4 Ves. 147. W. 198. Ex parte Bowes, 
 
 Attorney-general v. Buller, cited in note 1 Atk. 605. 
 
 5 Ves. 339. Ex parte Bret- See recital in an act 9 Geo. 
 
 tell, 6 Ves. 577. Attorney- 3. for vesting the estates of 
 
 general v. Vigor, 8 Ves. the earl of Stafford in Irus- 
 
 276. Braybrooke v. In- tees to be sold, 
 skipp, 8 Ves. 417. Ex
 
 chap, in.] Stat. 27 H. 8. c. 10. 361 
 
 adopting the modern rule, courts of law must sect.ix. 
 in some decree notice trusts, which in other of the trustee, 
 
 ~ ' his estate and 
 
 instances they are careful to avoid. It can office. 
 however be understood, that when upon the 
 face of the instrument, vesting the legal estate 
 in the trustee, there is an express trust de- 
 clared, a court of law may take notice, that 
 the person devising, has the character of a 
 trustee, without materially blending the juris- 
 dictions of law and equity. 
 
 But it is difficult to discover any prin- 
 ciple, upon which a court of law can adopt 
 the modern rule, in the case of a constructive 
 trust. For instance, if A. contracts to sell a 
 real estate to B., and dies before the convey- 
 ance is made to the purchaser, having, sub- 
 sequently to the contract, devised all his real 
 estates to C. in tail : a court of law, before it 
 can decide, that the estate, contracted to be 
 sold, did not pass under the devise, must 
 previously determine, that A. is a trustee 
 for B a . 
 
 The preceding observations will apply to General con- 
 conveyances by trustees of all their real es- Sees? 
 tates. It is in general considered, that a bar- 
 
 a In Wall v. Bright, to trustees, in a case, where 
 
 1 Jac. and Walk. 494. it if the devise had been by a 
 
 was held, that an estate, bare trustee, it would not 
 
 under contract for sale, have passed, 
 passed by a devise of lands
 
 362 
 
 Of Trusts since the [chap. hi. 
 
 sect. ix. gain and sale by commissioners of a bank- 
 Of the trustee, ruptofall the bankrupt's real estate, does not 
 
 his estate and ' 
 
 office. at law pass property, of which he is trustee. 
 
 It is observable, however, that the case of 
 Bennet v. Davies' does not support this doc- 
 trine. The words of the Master of the Rolls 
 are, " as if the bankrupt had been a trustee 
 " for J. S., his brankruptcy should not in 
 " equity affect the trust estate;" and in that 
 case, the legal estate, it was thought, passed 
 to the assignee. 
 
 Of purchases 
 made by the 
 trustee of the 
 trust estate. 
 
 (5.) As courts ofequity have been anxious 
 to provide for the inconveniences arising at 
 law from the alienation, incumbrances, and 
 forfeitures of the trustee, so they are ex- 
 tremely cautious in confirming purchases 
 made by him of the trust estate. In the case 
 of Whelpdale v. Cookson, where a trustee for 
 the sale of land, purchased part of the trust 
 estate for himself, lord Hardwicke declared, 
 that he would not let the purchase stand good, 
 although another person, being the best bid- 
 der, bought it for him at a public sale ; for 
 he knew thedangerons consequence; nor was 
 it enough for the trustee to say, You cannot 
 prove any fraud, as it was in his own power 
 to conceal it a . We have already seen, that 
 
 z 2 P. W.316. 
 
 a 1 Ves. 9. S. C. This 
 rule has been confirmed by 
 many subsequent cases. See 
 Whilchcote v. Lawrence, 
 
 3 Ves. 740. Campbell v. 
 Walker, 5 Ves. 678. Ex 
 parte Reynolds, ibid. 707. 
 Ex parti- Hughes, C Ves. 
 617. Ex parte Lacy, ibid.
 
 chap, in.] Stat. 27 H. 8. c. 10. 363 
 
 when a trustee renews a lease, of which he is sect. ix. 
 a trustee, the renewed lease shall be subject of the trustee, 
 
 his estate and 
 
 to the old trusts. 
 
 office. 
 
 (6.) As the legal interest is vested in the of suits by the 
 trustee, he is consequently a necessary party 
 to all suits commenced for, and against, the 
 
 625. Lister v. Lister, ibid. 
 631. Ex parte James, 8 
 Ves. 337. Coles v. Tre- 
 cothick, 7 Ves. 234. Where 
 a security is made by way 
 of mortgage with a power 
 of sale, the donee of the 
 power is a trustee within 
 the rule. Downes v. Graze- 
 brook, 3 Mer. 200. In 
 Montesquieu v. Sandys, 18 
 Ves. 313. lord Eldon ob- 
 serves, " There is no autho- 
 " rity establishing, nor was 
 " it ever laid down, that an 
 " attorney cannot purchase 
 " from his client, what was 
 " not in any degree the ob- 
 " ject of his concern as at- 
 " torney." See also Woods 
 v. Downes, 18 Ves. 120. 
 Hooper v. Goodwin, Coo- 
 per, 95. and note a. 3 Mer. 
 209. In Sanderson v. Wal- 
 ker, 13 Ves. 601. lord 
 Eldon has also observed, 
 " The principle has often 
 " been laid down, that a 
 " trustee for sale may be 
 " the purchaser in this sense; 
 " that he may contract with 
 " his cestuique trust ; that 
 " with reference to the con- 
 " tract of purchase, they 
 " shall no longer stand in 
 " the relative situation of 
 " trustee and cestuique trust; 
 " and that the trustee hav- 
 
 " iug, through the medium 
 " of that sort of bargain, 
 " evidently, distinctly, and 
 " honestly proved, that he 
 " had removed himself from 
 " the character of trustee, 
 " his purchase may be sus- 
 u tained." 
 
 In order to rescind a pur- 
 chase made by the trustee 
 for sale, the application must 
 be made within a reason- 
 able time (Price v. Byrn, 
 cited 5 Ves. 681. and the 
 arguments of the Master of 
 the Rolls, ibid. 682. 11 
 Ves. 226. Gregory v. Gre- 
 gory, Cooper, 201.); except 
 in the case of a body of cre- 
 ditors, against whom it is 
 said, that laches does not 
 apply (Anon, in Exch. 
 cited 6 Ves. 632.); and the 
 case of a charity, Attorney- 
 general v lord Dudley, 
 Cooper, 146. 
 
 In sir George Colebrook's 
 case, cited 6 Ves. 622. the 
 lord chancellor Thurlow 
 said, that in case of a pur- 
 chase by a trustee or assig- 
 nee for the benefit of cre- 
 ditors, the confirmation of 
 the purchase by the majority 
 of the creditors, will not 
 bind the individual creditors, 
 who did not confirm.
 
 Of the trustee, 
 his estate and 
 office. 
 
 364 Of Trusts since the [chap. hi. 
 
 sect. ix. trust property. Generally, indeed, the ces- 
 tuique trust should be also made a party b ; 
 although the trustee may not only sue in his 
 own name , but in some instances he should 
 not bring his cestuique trust before the court 
 on pain of incurring costs d . 
 
 whether the (7.) It is, generally speaking, a rule, that 
 
 trustee may re- . , 
 
 lease or corn- a trustee releasing or compounding a debt, 
 
 pound debts. 
 
 due to the trust estate, must answer for the 
 loss occasioned by such release or composi- 
 tion 6 . 'Yet this rule must always depend 
 upon the particular circumstances of the 
 case ; for where a trustee in releasing or 
 compounding a debt, acts from prudential 
 motives, and with a view to benefit the trust 
 property, the courts will consider his con- 
 duct, not only excusable, but in many in- 
 stances, laudable f . On the other hand, where 
 a trustee buys in an incumbrance for less 
 money, than is actually due, the trust estate 
 shall receive the benefit of the composition 8 . 
 
 He cannot alter /q\ \ trustee cannot (without an express 
 
 the nature of v ' v * 
 
 the trust pro- power for that purpose) alter the nature of 
 
 perty. ' . 
 
 the trust property 1 ', either by converting land 
 
 b 1 Har. Cha. Pract. 247. W. 381. 
 
 c Ibid. Toth. 285. * 3 P. W. 251. note A. 
 
 d 2 Atk. 48. Darey v. Hall, 1 Vern. 49. 
 
 e See Jevon v. Bush, 1 Morrett v. Paske, 2 Atk. 
 
 Vern. 342. George v. 54. 
 
 Chansey, 1 Cha. Rep. 125. '' See Earlom v. Saun- 
 
 Blue v. Marshall, 3 P. ders, Aiub. 241.
 
 jffice. 
 
 chap, in.] Stat. 27 H. 8. c. 10. 365 
 
 into money, investing money in the purchase Sect. ix. 
 of land', or by taking a lease for lives instead gJJEJj 
 of renewing a lease for years k , so as to vary of 
 the right of succession to such property; un- 
 less it be under particular circumstances, and 
 evidently for the benetit of the trust estate 1 . 
 
 (9.) As the trustee cannot prejudice ces- His laches w m 
 
 not prejudice 
 
 tuique trust bv doins: what his trust does not acestuique 
 
 , • i • • trust - 
 
 authorize, so he cannot, in general, injure 
 
 him by omitting to do, what his office requires 
 him to perform 1 ". Therefore, where an entry 
 was made and a fine levied by a stranger 
 during the infancy of cestuique trusty and the 
 trustee neglected to enter for the purpose of 
 avoiding the fine, the Court of Chancery de- 
 termined, that the infant should not suffer for 
 the laches of his trustee". The exception to 
 the rule is in the case of a purchaser or cre- 
 ditor . 
 
 (10.) When money is invested in the pur- selS^S? 
 chase of stock in the names of trustees, they p U 0W a e " express 
 have no power to change the security, unless 
 
 1 Rook v. Warth, 1 Ves. m 3 P. W. 215. 2 Atk. 
 
 461. Tullit v. Tullit, Amb. 406. No fraudulent or un- 
 
 370. necessary delay on the part 
 
 k Witter v. Witter, 3 P. of trustees, shall affect the 
 
 W. 99. See Milner v. interests of third persons. 
 
 Harewood, 18 Ves. 274. Vide 1 Meri. 433. in Ber- 
 
 1 Terry v. Terry, Prec. nard v. Montague. 
 
 Cha. 273. Vernon v. Ver- n Allen v. Sayer, 2 Vern. 
 
 non, cited 3 Brown, 513. 368. 
 
 Inwood v. Twine, Arab. • Note G. 3 P. W. 310. 
 
 417. Vide ante 291.
 
 36(5 Of Trusts since the [chap. ill. 
 
 Sect. ix. tliey are expressly allowed so to do by the 
 or the trustee, trust; and therefore, if thev take upon them- 
 
 his estate and ' •> * 
 
 office. selves to use a discretionary power in this 
 
 respect, they are liable to answer for any loss, 
 which may happen to the trust fund ; it being 
 in the election of the cestuique trust, either to 
 have the individual stock restored to him, or 
 the money, for which it was sold by the trus- 
 tees 1 '. But while the original stock remains 
 vested in their names, or if they purchase 
 any other stock in pursuance of a power re- 
 served to them, they will not be answerable 
 for the falling of such original stock in the 
 one instance, nor of the new fund in the 
 other q . But it is to be observed, that when 
 there is a decay of the trust funds, all the 
 cestuique trust must suffer equally; and there- 
 fore if the trustee, in that case, shows any 
 preference, he must answer for it out of his 
 
 >' Harrison v. Harrison, " or executor, after a de- 
 
 2 Atk. 121. Bostock v. " cree, to lay out money on 
 Blakeney, 2 Bro. 653. Po- " mortgage, without a pre- 
 cock v. Reddington, 5 Ves. " vious application to the 
 794. Note, that an execu- " Court." Per lord Eldon 
 tor, investing his testator's in Widdowson v. Duck, 2 
 money in the purchase of Mer. 494. 
 
 three per cent. cons, or q Jackson v. Jackson, 1 
 
 red. bank annuities, will Atk. 513. Anon. 1 P. W. 
 
 not be liable in consequence 648. The discretionary 
 
 of the fall of that stock, power of trustees to vary 
 
 Ex parte Champion, cited securities, is not controlled 
 
 3 Bro. 434. Howe v. earl by the Court of Chancery, 
 of Dartmouth, 7 Ves. 137. unless ruinously exercised. 
 Holland v. Hughes, 16 DeManneville v.Crompton, 
 Ves. 111. " The rule is 1 Ves. and B. 354. 
 
 •' never to permit a trustee
 
 chap, ill.] Stat. 27 H. 8. c. 10. 307 
 
 own estate'. In a case 9 , where a power was sect. ix. 
 given to trustees to invest monies in govern- of the trustee, 
 
 , /• 7 .7 7 • ,. •. his estate and 
 
 meal Junas, or other good securities, it was office. 
 said by lord Hardwicke, that neither South- 
 sea stock, nor Bank stock 1 , were considered 
 as a good security ; because it depended upon 
 the management of the governors and direc- 
 tors, and was subject to losses ; but that it was 
 different as to South-sea and Bank annuities. 
 
 (11.) Where a trust was created by will, whenneces- 
 for the maintenance of infants, and the trus- t"fhe°ieuer "of 1 
 tee, in the lifetime of the father, applied the 
 interest of the trust fund for that purpose, 
 lord Thurlow said, that it was contrary to all 
 rules, that the interest vested in the children 
 should be applied for their maintenance in 
 the lifetime of the parent ; for that would 
 amount to a gift to the parent of so much, as 
 should be necessary for the maintenance". 
 This rule applies only to cases, where the 
 parent has the ability to provide for his chil- 
 dren'". But a trustee may in some instances 
 exceed the letter, if he conform to the spirit, 
 of the trust. Thus in a case x , where a trus- 
 
 r Tilsey v.Throckmorton, w See Butler v. Butler, 
 
 2 Cha. Ca. 132. 3 Atk. 60. and the note to 
 
 9 Trafford v. Boehm, 3 the last ed. 
 Atk. 444. x Franklin v. Green, 2 
 
 4 Not a bond. Wilkes Vern. 137. Warr v. Warr, 
 
 v. Steward, Coop. 6. Prec. Cha. 213. Swinnock 
 
 Langston v. Ollivant, ibid. v. Crisp, 2 Freem. 78. But 
 
 33. see 4 Ves. 363. in Lee v. 
 
 u Andrews v. Partington, Brown. 
 
 3 Bro. 60.
 
 308 Of Trusts since the [chap. ill. 
 
 sect. ix. tee of money for an infant, payable at 21, or 
 Of the trustee, marriage, with a power of maintenance in the 
 
 his estate and . . ., . . e 
 
 office. mean time, paid part or the principal tor 
 
 placing the infant out as an apprentice; the 
 court, upon the death of the infant under 21, 
 unmarried, allowed the trustee what he had so 
 paid, notwithstanding the money was limited 
 over upon the event, which had happened. I 
 may here add the case" where a sum of money 
 was directed to be laid out in the purchase of 
 freehold lands only, and the court dispensed 
 with the strict direction, and approved of the 
 purchase of a college lease at the same time 
 with the freehold. The court seemed inclined 
 to act in the same manner, where money was 
 directed to be laid out in the purchase of land 
 within a particular district*. 
 
 In Gaskell v. Harman, 11 Ves. 489. 507. 
 the Lord Chancellor acceded to the principle, 
 that no fraudulent or unnecessary dilatory 
 dealing by trustees, shall affect third persons; 
 and in Bernard v. Montague, 1 Mer. 422. 
 where there was a trust to raise certain sums 
 out of real estate, out of the rents and profits, 
 or by mortgage, the Master of the Rolls ob- 
 served, that in creating the alternative, it 
 must be taken, that the testator did not give 
 to the trustees a power, which they were at 
 
 x Gosselin v. Dodwell, for sale by trustees has 
 
 cited 3 Atk. 414. elapsed. Witchcot v. 
 
 J Maynwaring v. Mayn- Souch, 1 Cha. Rep. 183. 
 
 waring, 3 Atk. 413. So, See Moseley v. Moseley, 
 
 where the time appointed Finch, 53.
 
 chap, in.] Stat. 27 H. 8. e. 10. 369 
 
 liberty to exercise according to their own sbct.ix. 
 
 pleasure. 0f thc trustee. 
 
 r his estate and 
 
 office. 
 
 In the common case, where there is a 
 trust to raise money for portions, &c. by mort- 
 gage, or by and out of the annual rents and 
 profits, and the estate, subject to the payment 
 thereof, is settled upon A. for life, with re- 
 mainders over, it is usual to raise the money 
 by mortgage, by which means, the money be- 
 comes a charge upon the inheritance, and the 
 tenant for life is obliged to keep down the in- 
 terest; for it would be a hardship on the tenant 
 for life, if the money were raised at his ex- 
 pense, out of the annual rents and profits, 
 in favour of those in remainder. 
 
 (12.) Against accidental losses, which when liable to 
 
 accidental 
 
 happen to the trust estate, the courts are losses. 
 anxious to relieve the trustee ; if such losses 
 do not happen through his own neglect or 
 default. If the trustee is robbed of the trust- 
 money, the courts consider, whether he has 
 kept it, as he would his own money r . Does 
 his banker fail, whereby a loss accrues to the 
 trust fund ? Equity inquires, whether the 
 banker was in credit, at the time the money 
 was paid into his hands 3 . Does an agent of 
 
 z Morley v. Morley, 2 loner, 2 Ves. 85. Ex parte 
 
 Cha. Ca. 2. Jones v. Lewis, Belchier, Arab. 219. But 
 
 2 Ves. 240. see Rider v. Bickerston, 5 
 
 a Knight v. Plimouth, 3 Ba. Ab. 401. pi. 12. 
 Atk. 480. Horsley v. Cha- 
 
 VOL. I. B B
 
 370 Of Trusts since the [chap. hi. 
 
 Sect. ix. the trustee becomes insolvent? The question 
 of the trustee, j s whether he is in crood circumstances at the 
 
 his estate and _ 
 
 office. time of his nomination 1 ". 
 
 s^veconungeni ( 13 -) When trustees are appointed to pre- 
 remainders. se rve contingent remainders, if they join in 
 any conveyance in order to destroy those re- 
 mainders, this shall in general be deemed a 
 breach of trust , whether the settlement be 
 voluntary, or not d . In some particular in- 
 stances, however, the courts have ordered the 
 
 trustees to make conveyances in order to de- 
 
 it 
 feat the contingent estates ; but it would be 
 
 prudent for trustees to receive the directions 
 of a court of equity before they agree to de- 
 stroy those estates, which they are appointed 
 to preserve 6 . 
 
 Trustee may (14.) But whenever cestuique trust is en- 
 
 celtuiqiTe 1 trust titled to an estate tail, which he alone might 
 
 in tail, to bar 
 
 the entail. 
 
 b Anon. 12 Mod 560. " agents at all events." 
 " If one devise to trustees, c Pye v. George, 2 Salk. 
 
 " and by express clause 680. 1 P. W. 128. S. C. 
 
 " therein, give them power Else v. Osborn, 1 P. W. 
 
 " to appoint agents to ma- 388. Woodhouse v. Hos- 
 
 " nage the land, and they kins, 3 Atk. 22. 
 " appoint one then solvent d Mansell v. Mansell, 2 
 
 " and good, though after- P. W. 678. Symance v. 
 
 " wards he prove insolvent, Tatton, 1 Atk. 613. 
 " they shall not answer for e The cases upon this 
 
 " him ; secus if he were not subject are collected, in the 
 
 " solvent at the time, at case of Moody v. Walters, 
 
 " which he was nominated. 16 Ves. 283. ; and the 
 
 " But if there were no such above doctrineis there much 
 
 " direction or power in the discussed. See Biscoe v. 
 
 " will, the trustees are Perkins, 1 Ves. and B. 485. 
 " bound to answer for their
 
 chap, in.] Stat. 27 H. 8. c. 10. 371 
 
 have barred by an equitable recovery ; then it Sect - ix. 
 will not be a breach of trust, if the trustee °/ lhe trustce 
 
 his estate and 
 
 join with him in a conveyance to bar the en- office - 
 tail, and to pass the legal estate ; for his join- 
 ing in this case, is nothing more, than what 
 he is compellable to do f . 
 
 (15.) It is said to be a rule in Chancery, Trustee is 
 
 not 
 
 . „ , . . to convey the 
 
 that it lands are vested in trustees in fee- legal estate in 
 simple, in trust for one, and the heirs of his cestuique^rust 
 body, with remainder over; the trustees are " 
 not to convey an estate in fee-simple to the 
 tenant in tail ; but an estate tail ; although 
 such tenant in tail will have it in his power 
 to bar the entail, with the remainder over by 
 a recovery g . So if a sum of money be agreed 
 to be laid out in land, and the lands to be 
 settled in tail, with remainders over; the set- 
 tlement shall be made accordingly, and the 
 money shall not be paid to the tenant in tail ; 
 because there is a chance of his death before 
 a recovery should be suffered, which can only 
 
 f l Eq. Ab. 384. (E.) It was decreed, that the 
 
 note A. Carteret v. Car- trustee should convey to B. 
 
 teret, 2 P. W. 134. A in tail, with the remainders 
 
 conveyance was made to a over, according to the will, 
 
 purchaser, and his trustee, Young v. Leigh, Cary, 95. 
 
 and the heirs of the pur- 20 Eliz. In Carteret v. 
 
 chaser. The purchaser by Carteret, the court refused 
 
 will, devises to B. in tail, to compel the trustee tojoin 
 
 with remainders over. The in making a tenant to the 
 
 trustee survived lhe pur- praecipe; but directed the 
 
 chaser ; so that B. could trustee to convey the legal 
 
 not suffer a recovery with- estate tail to the tenanl. 
 
 out the aid of the trustee. s 1 Eq. Ab. 395. 
 
 B B 2
 
 372 Of Trusts since the [chap, hi. 
 
 Sect. ix. be done in term-time' 1 . But if the remainder 
 
 of the trustee, j n fee had in this case 
 
 his estate and 
 
 ofllce ' " Short v. Wood, 1 P. 
 
 \V. 470. and the cases cited 
 iu note 1. to Collett v. Col- 
 lett, lAtk. 12. 3ded. But 
 now by the statute 40 Geo. 
 3. c. 56. it is enacted, 
 '« That from and after pass- 
 ing of this act, in all cases 
 where money, under the 
 control of any court of 
 equity, or of or to which 
 any individuals, as trustees, 
 are possessed or entitled, 
 shall be subject to be in- 
 vested in the purchase of 
 freehold or copyhold here- 
 ditaments, or both, to be 
 settled upon any person or 
 persons in such manner 
 that it would be competent, 
 in case such money had 
 been invested in the pur- 
 chase of real estates, for 
 the person or persons who 
 would be the tenant or te- 
 nants of the first estate or 
 estates tail therein, either 
 alone or together with the 
 person or persons who 
 would be the owner or 
 owners of the particular 
 preceding estate or estates 
 therein, if any, by deed, 
 fine, or common recovery, 
 or any of them, or other 
 lawful act, in the case of 
 freehold hereditaments, or 
 by surrender and recovery, 
 or either of them, or other 
 lawful act, in the case of 
 copyhold hereditaments, to 
 bar the first estate or es- 
 tates tail, and the rights 
 and interests of all persons 
 in remainder, it shall not 
 be necessary to have such 
 
 been limited to the te- 
 
 money actually invested in 
 lands or hereditaments, in 
 order that such estates tail 
 and remainders over may 
 be so barred, but that it 
 shall and may be lawful to 
 and for the High Court of 
 Chancery, or such court of 
 equity under the control of 
 which such money shall be, 
 and in the case of trustees, 
 to and for the said High 
 Court of Chancery in a 
 summary way, upon peti- 
 tion of the person or per- 
 sons who would be tenant 
 or tenants of the first es- 
 tate or first estates tail, 
 and of the person or per- 
 sons who would be the 
 owner or owners of the an- 
 tecedent particular estate 
 or estates, if any, in the 
 lands and hereditaments, in 
 case the same were pur- 
 chased, such petitioners 
 being adults, and in case 
 where any of the parties 
 are or is femes covert or a 
 feme covert, she or they 
 being first separately exa- 
 mined in court, or upon 
 a commission, and consent- 
 ing, to order the monies 
 subjected to such trusts to 
 be paid to the petitioners, 
 or any of them, or to be 
 paid and applied in such 
 manner and for such pur- 
 poses as the petitioners 
 shall appoint, and the court 
 shall approve of. 
 
 " And be it further enact- 
 ed, That in all cases where 
 monies subjected to be 
 laid out in the purchase of
 
 chap, in.] Stat. 27 H. 8. c. 10. 373 
 
 nant in tail, then it seems, that the Court of Sect.ix. 
 Chancery might have directed the money to P f the truste ?« 
 
 * ° ^ Ins estate and 
 
 be paid to him ; because he might have office - 
 barred the limitation by a fine, which may 
 be levied in vacation time, as well as in 
 term*. 
 
 (16.) The courts of equity look upon trusts of allowance* 
 
 v , . t0 trustees for 
 
 as honorary, and not undertaken upon mer- their care. 
 cenary motives k ; and therefore in the case of 
 Robinson v. Pett 1 , lord Talbot said, it was an 
 established rule, that a trustee should have 
 no allowance for his care and trouble in the 
 management of the trust ; for if on those pre- 
 tences, allowances were to be made, the trust 
 
 hereditaments to be settled 
 as aforesaid, shall happen 
 to be invested in govern- 
 ment or real or other secu- 
 rities, all such securites 
 shall, for the puposes of 
 this act, be considered as 
 money, and shall and may 
 accordingly be transferred, 
 assigned, and disposed of 
 under an order of the re- 
 spective courts aforesaid, 
 made in a summary way 
 upon the petition of such 
 persons, and with such ex- 
 amination and consent, 
 where necessary, as afore- 
 said, in such and the same 
 manner as monies subjected 
 to be laid out in the pur- 
 chase of hereditaments, to 
 be settled as aforesaid, are 
 hereinbefore authorized to 
 be paid, applied, and dis- 
 
 posed of." 
 
 It should seem, that from 
 the time of the order, the 
 fund becomes converted into 
 personalty. 
 
 The act seems to meet 
 the case of a husband and 
 wife successively tenants for 
 life. But I doubt, whether 
 a feme covert entitled to a 
 jointure rent-charge is with- 
 in the act. The rent seems 
 to be an incumbrance and 
 not a particular estate. 
 
 1 See cases supra. 3 Atk. 
 447. 
 
 k 2 Atk. 60. 40G. 
 
 '3P.W. 251. S.C. See 
 French v. Baron, 2 Atk. 
 120. note 3. In the matter 
 of Annesley, Amb. 78. 
 Chambers v. Goldwin, 5 
 Ves. 834. 9 Ves. 254. 
 
 BBS
 
 374 Of Trusts since the [chap. hi. 
 
 Sect. ix. might be loaded, and rendered of little value ; 
 of the trustee, that a great difficulty might attend in settling 
 
 his estate and . in 
 
 office. and adjusting the quantum or such allowance, 
 
 especially as one man's time might be more 
 valuable, than that of another; and that it 
 could be no hardship upon any trustee ; for it 
 was at his option either to accept, or refuse, 
 the trust. But if a trustee come in a fair and 
 open manner, and tell cestuique trust, that he 
 will not act in such a troublesome and bur- 
 densome office without further compensation 
 given by cestuique trust, over and above the 
 terms of the trust, and such terms be con- 
 tracted for between them, this contract, lord 
 Hardwicke observed' 11 , would not perhaps be 
 set aside, though there was no precedent, 
 wherein such a bargain had been confirmed. 
 
 But though a trustee be not allowed for his 
 trouble, it seems, that if he employ a bailiff 
 to manage the trust estate, he must be allowed 
 for the employment of, and payments made 
 to, such bailiff". 
 
 Of allowances (17.) Notwithstanding trustees are not al- 
 
 iii respect of ex- 
 
 penses incurred [owed any thing for their trouble and care in 
 
 by the trustees. 
 
 the management of the trust estate, it is rea- 
 sonable, that they should be allowed all costs 
 and expenses, which may be incurred in the 
 execution of the trust, and the discharge of 
 
 "' 2 Atk. GO. 1 Vern. 316. Forest v. 
 
 "Bonithorn v. Hockmore, Elwes, 2 Mer. 08.
 
 chap, in.] Stat. 27 H. 8. c. 10. 375 
 
 their office; provided there be no mismanage- sect. ix. 
 ment, nor breach of trust . Therefore lord °. f tlie trust ec, 
 
 ins estate and 
 
 King said 1 ', it was a rule, that a trustee ought office - 
 to be saved harmless by cestuique trust, as to 
 all damages relating to the trust. Thus, 
 where a trustee has honestly and fairly, with- 
 out any possibility of being a gainer, laid 
 down money, by which the cestuique trust 
 was discharged from being liable to pay a 
 greater sum, or from a plain and great hazard 
 of being so, the trustee ought to be repaid 1 . 
 
 (18.) If a trustee, said lord Hardwicke 1 ", where a breach 
 
 \ ' of trust shall 
 
 err in the management, and be auilty of a fallu P°nthe 
 
 % estate of ces- 
 
 breach of trust, yet if he quit it with the ap- tuique trust. 
 probation of cestuique trust, the breach ought 
 in the first place to fall on the estate of ces- 
 tuique trust, who consented to it ; for the 
 courts are ever anxious to deliver the trustee 
 from any misapplication of the trust-money. 
 
 And lastly. Where there are two or more Trustee charge- 
 trustees, the rule is, that each of them shall heshaiire- 
 be charged for his own wilful neglect, de- ce 
 fault, or breach of trust only; and that the 
 innocent trustee shall not suffer for the mis- 
 conduct of his co-trustee. Therefore it has 
 been decided, that a trustee, who has joined 
 
 Hithersell v. Hales, 2 »' 2 P. W. 455. 
 
 Cha. Rep. 158. and Finch '' Balsh v. Hyham, ibid. 
 
 Rep. 361. 12 Mod. 560. 453. 
 
 2 Cha. Ca. 138. r 3 Atk. 1 14. 
 
 B B 4
 
 376 Of Trusts, %c. [chap. in. 
 
 sect. ix. in a voucher for the whole trust-money, but 
 Of the trustee, has in truth only received a part of it, shall 
 
 his estate and 
 
 office. be charged for so much only, as has actually 
 
 come to his hands 5 ; unless indeed fraud, or 
 what is tantamount to it, gross negligence, 
 should appear in the transaction*. 
 
 • See Leigh v. Barry, 3 See lord Shipbrook v. lord 
 
 Atk. 584. note 2. last ed. Hinchinbrook, 11 Ves. 252. 
 
 1 Bridgm. 38. Keble v. 16 Ves. 477. S. C. 
 Thompson, 3 Bro. 112.
 
 37 
 
 APPENDIX. 
 
 APPENDIX, No. I. 
 
 Proviso shifting the Use upon Neglect or Refu- 
 sal to take a Name, arid hear cet tain Arms. 
 
 Provided always, and it is hereby agreed Appendix, 
 and declared between and by the said parties 
 hereto, that every husband of each of them 
 the said Eliz. L., Letitia L., and Arabella L., 
 and of each of their daughters, who under 
 or by virtue of the limitations, hereinbefore 
 contained, or of these presents, shall become 
 entitled to the actual possession or receipt of 
 the rents and profits of the said manors and 
 other hereditaments expressed to be hereby 
 granted and released, shall apply for, and en- 
 deavour to obtain, an act of parliament, or 
 proper license from the crown, or take such 
 other ways or means, as may be requisite or 
 proper to enable or authorize him to take and 
 use the surname of L. only, and no other sur- 
 name, and to quarter the arms of L. with his 
 own family arms within the time hereinafter 
 mentioned, that is to say, if the wife of such 
 husband shall be entitled to the actual posses-
 
 378 Appendix, No. 1. 
 
 Appendix, sion or receipt of the rents and profits of the 
 No. i. r _ ■ 
 
 said manors and other hereditaments at the 
 
 time of her marriage ; then within the space 
 of one year after such marriage; but if the 
 wife of such husband shall not be entitled to 
 the actual possession or receipt of the rents 
 and profits of the said manors and other here- 
 ditaments at the time of her marriage, then 
 within one year after she shall so become en- 
 titled as aforesaid ; and also, that every other 
 person, who under or by virtue of the limita- 
 tions hereinbefore contained, or of these pre- 
 sents, shall be entitled to the actual possession 
 or receipt of the rents and profits of the said 
 manors and other hereditaments expressed to 
 be hereby granted and released, shall within 
 one year after he shall so become entitled to 
 the possession or receipt of the rents and pro- 
 fits of the said manors and other heredita- 
 ments, apply for, and endeavour to obtain, an 
 act of parliament or proper license from the 
 crown, or take such other ways or means, as 
 may be requisite or proper, to enable or autho- 
 rize him to take and use the surname of L., 
 and no other surname, and to quarter the 
 arms of L. with his own family arms ; and 
 that in case any such person or persons shall 
 refuse, or neglect, to take such surname and 
 arms, and to take and use the steps or means 
 which shall be requisite or proper to enable 
 and authorize him or them so to do, by the 
 space of one year to be computed as afore-
 
 Appendix, No. I. 379 
 
 said, then if the person so refusing or neglect- Appendix, 
 ing shall be the husband of either of them 
 thesaid Elizabeth L., Letitia L., and Arabella 
 L., the limitation hereinbefore contained to 
 the use of such of them, whose husband shall 
 so refuse or neglect, and to the use of her 
 husband after her death, shall cease, deter- 
 mine, and become absolutely void ; and if such 
 person so refusing or neglecting shall be the 
 husband of any daughter of them the said 
 Elizabeth L., Letitia L., and Arabella L., the 
 limitation hereinbefore contained to the use of 
 the daughter, whose husband shall so refuse 
 or neglect, and her heirs male, shall cease de- 
 termine, and be absolutely void: and in case 
 the person so neglecting or refusing shall be 
 any other than such husband as aforesaid, the 
 limitation hereinbefore contained to the use 
 of such person and the heirs male of his 
 body, shall cease,determine,and be absolutely 
 void ; and the said manors and other heredi- 
 taments shall in either of such cases imme- 
 diately thereupon go to the person next be- 
 neficially entitled in remainder under the 
 limitations hereinbefore contained, in the 
 same manner as if the person or persons 
 whose estate or estates shall so cease, deter- 
 mine, and become void, being tenant or te- 
 nants for life, was or were dead, or being te- 
 nant or tenants in tail, was or were dead with- 
 out issue inheritable under such entail, with- 
 out prejudice nevertheless to any portion or
 
 380 Appendix, No. I. 
 
 Appendix, portions, lease or leases, which previously to 
 such cesser or determination, shall have been 
 charged, made, or created, by virtue, or un- 
 der the exercise of, any of the powers here- 
 inafter contained. And it is hereby further 
 agreed and declared between and by the said 
 parties hereto, that the cesser or determination 
 of any estate or estates of any tenant or te- 
 nants for life, by virtue of the proviso here- 
 inbefore contained, shall not operate to ex- 
 clude, prevent, or prejudice any of the con- 
 tingent remainders hereinbefore limited to the 
 son or sons, daughter or daughters of such te- 
 nant or tenants for life, or any other person 
 or persons ; but that the remainder hereinbe- 
 fore limited to the said trustees and their 
 heirs during the life of every such tenant for 
 life, shall after such cesser or determination, 
 take effect and continue for preserving such 
 contingent remainders, and giving them ef- 
 fect, as they may arise; and that immediately 
 from or after such cesser or determination of 
 such preceding estate or estates for life or 
 lives, and during the suspense and contin- 
 gency of such then expectant remainder, the 
 said A. and B. and their heirs, shall receive, 
 pay, and apply the rents and profits of the said 
 manor and other hereditaments which would 
 belong to such tenant or tenants for life, if 
 such cesser or determination had not taken 
 place, unto the person or persons for the in- 
 tents and purposes, and in the manner to, for,
 
 Appendix, No. I. 381 
 
 and in which, the same rents and profits Appendix, 
 would be, or would have been payable or ap- 
 plicable, under, or by virtue of, the limita- 
 tions and provisoes hereinbefore contained, in 
 case such tenant or tenants for life was or 
 were actually dead ; so that from and imme- 
 diately after such cesser or determination the 
 issue of each such tenant or tenants for life, 
 entitled for the time being under the limita- 
 tions aforesaid to the said manors and other 
 hereditaments in remainder, immediately ex- 
 pectant upon the decease of such tenant or 
 tenants for life, may be entitled to the rents 
 and profits of the said manors and other here- 
 ditaments for his and their own use and be- 
 nefit during the life of the parent, as if such 
 parent were dead ; and that in case no such 
 issue be in existence, then during the vacancy 
 or contingency of such issue, the person next 
 beneficially entitled for the time being under 
 the limitations aforesaid, to a vested remain- 
 der in the said manors and other heredita- 
 ments expectant upon the decease of such te- 
 nant or tenants for life, and failure of his, her, 
 or their issue, shall and may be entitled to the 
 said rents and profits for his and their proper 
 use and benefit respectively, but without any 
 exclusion of, or prejudice to, the estate, in- 
 terest, or right of any such issue afterwards 
 coming into existence, but only from the time 
 of the birth of such issue respectively.
 
 382 Appendix, No. II. 
 
 APPENDIX, No. II. 
 
 Proviso for shifting the use upon the Accession 
 of cmother Estate. 
 
 Appendix, Provided always, and it is hereby agreed 
 
 and declared between and by the said parties 
 hereto, that if the manor of and 
 
 hereditaments in the county of men- 
 
 tioned and comprised in the settlement made 
 in consideration of, and previously to the mar- 
 riage of A. B., bearing date, &c, and thereby 
 limited and settled upon or to the use of him 
 the said A. B. for life, shall at any time, by or 
 under the uses and limitations in the same 
 settlement contained, descend or come for an 
 estate tail in possession to, or upon, the elder 
 or any other son of the said C. D. on the 
 body of the said E. F. begotten, born in the 
 lifetime of the said C. D. or in due time after 
 his decease, or to or upon the issue male of 
 such elder or other son, so as to be in the ac- 
 tual possession or receipt of the rents and 
 profits thereof, and there shall be living any 
 other son of the body of the said C. D. on 
 the body of the said E. F. begotten, than the 
 son to or upon whom, or upon whose issue 
 male, such estate shall come or descend, or 
 any heirs male of the body of such other son, 
 then and in that case, and so often as the same 
 shall happen, the use or uses hereinbefore 
 limited to or for the benefit of such son, or
 
 Appendix, No. II. 38; 
 
 his issue male, upon whom such manor and Appendix, 
 
 i ,. . . P No. II. 
 
 hereditaments, in the county or 
 shall descend or devolve for an estate tail in 
 possession as aforesaid, and his or their issue 
 male, of and in all and singular the heredita- 
 ments hereinbefore granted and released, or 
 intended so to be respectively as aforesaid, 
 shall cease, determine, and become void, as if 
 such son or issue male was or were actually 
 dead without issue male of his or their body 
 or bodies; and then and thenceforth the same 
 hereditaments hereby granted and released 
 shall immediately go and remain to the use 
 of such person and persons, as by virtue of the 
 limitations hereinbefore contained would then 
 be entitled, as the person or persons next in 
 remainder, to the same hereditaments, in case 
 such son or issue male, so becoming entitled 
 to the said manor of and here- 
 
 ditaments, in the county of as 
 
 aforesaid, was or were then dead without issue 
 male of his or their body or bodies ; and the 
 same person or persons shall in every such 
 case be entitled to take the same estate and 
 estates in the said hereditaments hereby 
 granted and released, as he or they would 
 have been entitled to take therein by virtue of 
 these presents, if such son, or issue male, so 
 becoming entitled to the said manor and he- 
 reditaments, in the county of 
 was or were actually dead without issue male 
 as aforesaid.
 
 384 Appendix, No. III. a. 
 
 APPENDIX, No. III. a. 
 
 Power to lease for 21 Years in Possession at 
 Rack-rent. 
 
 Appendix, Provided always, and it is hereby agreed 
 
 and declared between and by the said parties 
 hereto, that it shall and may be lawful for the 
 said A. B. from time to time during his life, 
 and after his decease then for the guardian or 
 guardians for the time being of any child or 
 children of the said A. B. on the body of the 
 said C. D. to be begotten, who by virtue of, 
 or under the limitations hereinbefore con- 
 tained, shall be entitled to the possession or 
 receipt of the rents and profits of the heredi- 
 taments hereby granted and released, or in- 
 tended so to be, from time to time during the 
 minority or respective minorities of such child 
 or children, to demise or lease all or any, or 
 any part or parts of the hereditaments hereby 
 granted and released, or intended so to be, 
 with the appurtenances, to any person or per- 
 sons for any term or number of years not ex- 
 ceeding 21 years in possession, and not in re- 
 version or by way of future interest, so that 
 there be reserved and made payable in every 
 such lease during the continuance thereof, the 
 best and most improved yearly rent or rents, 
 to go along with, and be incident to, the im- 
 mediate reversion of the premises so to be
 
 Appendix, No. III. b. 385 
 
 leased, that can or may be reasonably had or ^pp^"* 
 
 J J No. III. a. 
 
 gotten for the same, without taking any fine, 
 premium, or foregift for the making thereof, 
 and so that in every such lease there be con- 
 tained a condition of re-entry on non-payment 
 of the rent or rents to be thereon, or thereby, 
 respectively reserved by the space of 21 days 
 next after the same shall become due and 
 payable, and so that the lessee or respective 
 lessees, to whom such lease or leases shall be 
 made, seal and deliver a counterpart or coun- 
 terparts of such lease or leases, and so that 
 no lessee to whom any such lease shall be 
 made, be by any clause or words therein con- 
 tained authorized to commit waste, or exempt- 
 ed from punishment for committing waste. 
 
 APPENDIX, No. III. b. 
 
 Power to lease for three Lives in Possession or 
 Reversion, at ancient or accustomed Rents. 
 
 Provided always, and it is hereby agreed Appendix, 
 
 No. III. b. 
 
 and declared between and by the said parties 
 to these presents, that it shall and may be 
 lawful for the said A. B. during his life, and 
 after his decease for the guardian or guardians 
 for the time being of any child or children of 
 the said A. B. on the body of the said C. D. 
 lawfully to be begotten, who by virtue of, or 
 under, the limitations hereinbefore contained, 
 shall for the time being be entitled to the pos- 
 vol. i. c c
 
 386 Appendix, No. III. b. 
 
 Appendix, session or receipt of the rents and profits of 
 
 No. III. b. . l r 
 
 the said manors and otherhereditaments here- 
 by granted and released, or intended so to be, 
 during the minority or respective minorities 
 of such child or children, by any deed or 
 deeds, or by copy or copies of court roll, to 
 demise, lease, or grant such part and parts of 
 the said manors and other hereditaments as 
 are now, or have been usually demised or 
 leased, or have been granted by copy of court 
 roll for one or more life or lives, or for years, 
 determinable on the dropping of one or more 
 life or lives, to any person or persons for one, 
 two, or three lives, or for any term or number 
 of years, determinable on the death or deaths 
 of one, two, or three person or persons, either 
 in possession or in reversion, and to acceptor 
 take any fine or premium for the making or 
 granting of every such lease or grant; so that 
 there be not more than three lives in being at 
 most upon any part of the said premises so to 
 be granted or leased at any one time ; and so 
 that no such grantee, or lessee, his, her, or their 
 heirs, executors, administrators, or assigns, 
 be made dispunishable of waste by any ex- 
 press words therein ; and so that upon every 
 such grant or lease the usual and accustomed 
 rents, heriots, and services at the least, or pro- 
 portional rents, heriots, and services, where a 
 greater or lesser part of any farm or farms, 
 tenement or tenements, shall either separately, 
 or together with any other part or parcel of
 
 Appendix, No. III. b. 387 
 
 thesamepremisesorotherlands, bedemised or Appendix, 
 
 r . . No. III. b. 
 
 granted, or rents, heriots, or services, amount- 
 ing in the aggregate to the usual rents, heriots, 
 or services, where two or more farms or tene- 
 ments shall be granted or demised together, 
 be reserved and made payable during the 
 continuance of such grant or lease. And it 
 is hereby agreed and declared, that such rent 
 or rents to be reserved upon every such grant 
 or lease shall be incident to, and shall go 
 along with, theimmediate reversion expectant 
 on such grant or lease ; and that in every such 
 grant or lease (other than upon grants or de- 
 mises by copy of court roll) there shall be 
 contained a clause of re-entry for non-pay- 
 ment of the rent or rents to be thereby re- 
 served for the space of 21 days after any part 
 thereof shall become due, and that the respec- 
 tive lessees of the said freehold hereditaments 
 shall execute counterparts of their respective 
 leases ; provided always, that if any such 
 grant or lease shall be made by the guardian 
 or guardians of any infant child or children 
 for the time being entitled as aforesaid, then 
 the fine or premium, fines or premiums which 
 shall be received upon every such lease or 
 grant shall be considered as part of the per- 
 sonal estate of the child or children for the 
 time being entitled to the possession or re- 
 ceipt of the rents and profits of the heredita- 
 ments, which shall be so granted or demised 
 
 as aforesaid. 
 
 c c 2
 
 358 Appendix, No. III. c. 
 
 APPENDIX, No. III. c. 
 
 Appendix, The following for 111 of a leasing power 
 
 No. III. C. & -n 
 
 was prepared by the Author's friend, Peter 
 Bellinger Brodie, Esq. and settled by him 
 and the Author. 
 
 It is proper to observe, that when it was 
 intended to authorize the grantof reversionary 
 leases under a power of leasing, the practice 
 seems to have been to enable the donee of the 
 power to grant a lease to commence from, or 
 after, the expiration of the existing lease ; but 
 as the grant of such a lease was, in effect, the 
 grantof an interesse termini, it did not carry 
 the immediate reversion expectant on the sub- 
 sisting lease, nor the rent reserved upon the 
 first lease : it was a lease to commence in 
 futuro. A lease granted under such a power 
 was objectionable on this ground : that if the 
 second lease was granted to commence at a 
 future period, beyond the limits allowed by 
 the policy of the law for perpetuities, it might 
 be considered altogether void. The following 
 power was framed to obviate this inconve- 
 nience, in a case where the property, the ob- 
 ject of the power, was subject to subsisting 
 leases.
 
 Appendix, No. III. c. 389 
 
 " Provided always, and it is hereby agreed Appendix, 
 
 * t No. III. c. 
 
 ** and declared between and by the parties to 
 " these presents, that it shall be lawful for 
 " the said A. B. and C. D., and the survivor 
 " of them, and the executors or administra- 
 " tors of such survivor, from time to time and 
 " at all times hereafter, with the consent of 
 " the within mentioned William Marmontthe 
 " elder, during his life, and after his decease 
 " with the consent of the person, who for the 
 " time being shall, under and by virtue of the 
 " limitations contained in the said recited in- 
 " denture of appointment, release, and settle- 
 " ment, be tenant for life, or in tail male in 
 11 possession, or actually entitled to the re- 
 " ceipt of the rents, issues, and profits of the 
 " manors, hereditaments, and premises, there- 
 " by limited, and for the time being remaining 
 " in strict settlement, if such person shall be 
 " of the age of 21 years or upwards ; but if 
 " such person shall be under that age, then, 
 " during the minority of such person, with 
 " the consent of his guardian or guardians 
 " (every such consent to be testified by some 
 " writing under the hand or hands of the 
 " person or persons whose consent shall, for 
 " the time being, be requisite), by any deed or 
 " deeds, instrument or instruments, in writ- 
 " ing, either referring to, or not referring to, 
 " this present power, to be sealed and de- 
 " livered by the said A. B. and C. D., or the 
 " survivor of them, or the executors or admi- 
 c c 3
 
 390 Appendix, No. III. c. 
 
 Appendix, " nistrators of such survivor, in the presence 
 
 No. III. c. -i-i 1 
 
 " of, and attested by, two or more credible 
 " witnesses, to demise or lease the messuages 
 " and hereditaments comprised in the leases 
 " particularized in the first schedule written 
 " under, or annexed to, these presents, or any 
 u of them, or any part or parts thereof, to 
 " any person or persons Whomsoever, for any 
 " term not exceeding 99 years, to take effect 
 " in possession, and not in reversion or by 
 " way of future interest, and at such yearly 
 " rent or rents to be reserved on every such 
 " demise or lease, and to be made payable 
 " during the term thereby to be created, as 
 " the said A. B. and C. D., or the survivor of 
 " them, or the executors or administrators of 
 " such survivor, shall in their or his full dis- 
 " cretion, and without being answerable or 
 " accountable for the exercise of such discre- 
 " tion, think fit ; and so that there be con- 
 " tained in every such demise or lease, a 
 " clause in the nature of a condition for re- 
 " entry on the non-payment of the rent or 
 " rents (not being a peppercorn rent) there- 
 " by to be reserved, in case the same, or any 
 " part thereof, shall be in arrear for the space 
 " of 21 days next after the same shall become 
 " due and payable ; and so that the lessee or 
 " lessees be not, by any clause or words to be 
 " contained therein, made dispunishable for 
 " waste, or exempted from punishment for 
 " committing waste ; and for the granting
 
 Appendix , No. III. c. 391 
 
 $f every such demise or lease, the said A. B. ^P p JJj dix » 
 
 " and C. D., and the survivor of them, and 
 
 " the executors or administrators of such 
 
 " survivor, shall accept as a fine or premium 
 
 M such a sum of money as they or he shall, 
 
 " in their or his full discretion, and without 
 
 " being answerable or accountable for the 
 
 " exercise of such discretion, think fit." 
 
 " And it is hereby further agreed and 
 " declared, that concurrent leases may be 
 " granted under the power hereinbefore con- 
 " tained ; and that every lease, to be granted 
 " under the said power, shall be valid and 
 " effectual, notwithstanding, at the time of 
 " granting such lease, the hereditaments 
 " therein comprised, shall be subject to one 
 " or more existing lease or leases thereof." 
 
 M And it is also further provided, agreed, 
 " and declared, that the sums to be raised 
 " by the said A. B. and C. D., or the survivor 
 " of them, or the executors or administrators 
 " of such survivor, by fines or premiums, on 
 " the granting of the lease or leases under 
 " the power aforesaid, shall not exceed in the 
 *' whole the sum of £ 
 
 " And it is also hereby further agreed and 
 
 " declared, that the receipts in writing of the 
 
 " said A. B. and C. D., or the survivor of 
 
 " them, or the executors or administrators 
 
 c c 4
 
 392 Appendix, No. III. d. 
 
 Appendix, " of such survivor, for any sum or sums of 
 " money, which shall be accepted by him or 
 11 them, as fines or premiums for the granting 
 " of any lease or leases, under the power 
 " hereinbefore contained, shall effectually 
 " discharge the person or persons paying the 
 " same ; and that no such lease to be granted 
 " under such power as aforesaid shall be 
 " invalidated, notwithstanding more than 
 " the sums hereby authorized to be raised, 
 " shall have been so raised." 
 
 APPENDIX, No. III. d. 
 
 Poiver to grant repairing or building Leases. 
 
 Appendix, Provided always, and it is hereby agreed 
 
 and declared between and by the said parties 
 hereto, that it shall and may be lawful to and 
 for the said John Jones, during his life, and 
 after his decease, to and for the person, who, 
 by virtue of, or under the limitations herein- 
 before contained, shall, for the time being, be 
 entitled to the first estate of freehold or inhe- 
 ritance of and in the said manors and other 
 hereditaments, expressed to be hereby granted 
 and released, in case such person shall be of 
 full age, but if not, then for the guardian or 
 guardians for the time being, of such person 
 during his minority, to demise or lease all or 
 any or any part of the said hereditaments
 
 Appendix, No. 111. el. 393 
 
 situate and being; in or near d pp xT. ix ,' 
 
 ° No. III. d. 
 
 in the county of and of the 
 
 wastes or commons within the manors of 
 or either of them, unto any 
 person or persons who shall be willing to 
 take the same, for the purpose of effectually 
 repairing any building or buildings, which 
 shall be standing, or being on the heredi- 
 taments so to be demised or leased, or for 
 the purpose of rebuilding or of erecting a 
 new building or new buildings upon the he- 
 reditaments, which shall be so demised or 
 leased, or any part thereof, with liberty to 
 take or pull down any erection or building, 
 erections or buildings then standing or being 
 upon the hereditaments so to be demised or 
 leased, for the purpose of rebuilding or new 
 building as aforesaid, or any part thereof, 
 and to make use of the materials for the 
 purpose of such rebuilding or new building ; 
 and also to lay out and appropriate any part 
 or parts of the ground, which shall be thereby 
 demised or leased, as for a yard or garden, 
 or for any other convenience, to be held, 
 occupied, or enjoyed, with any such building 
 or buildings ; so that every such demise or 
 lease, for the purpose of new building or re- 
 building, be made for any term or number of 
 years, not exceeding the term of 61 years ; 
 and so that every such demise or lease, for 
 the purpose of effectually repairing any mes- 
 suage or tenement, building or buildings, be-
 
 394 Appendix, No. III. d. 
 
 Appendix, made for any term or number of years not 
 
 No. III. d. / „ J _ 
 
 exceeding the term of 31 years ; and so from 
 time to time, and in like manner, to demise 
 or grant anew lease or new leases, for rebuild- 
 ing, new building, or repairing the same here- 
 ditaments or any part thereof, for such term 
 or terms respectively as aforesaid ; and so that 
 every such demise or lease shall take effect in 
 possession and not in reversion, or by way of 
 future interest, and so that upon every such 
 demise or lease, to be made in pursuance of 
 this power, there be reserved to be paid and 
 payable half yearly or oftener, during the 
 continuance thereof, and to be incident to, 
 and to go along with, the immediate re- 
 mainder or reversion expectant on the deter- 
 mination thereof, the best and most beneficial 
 rent or rents, that at the time of granting 
 thereof (considering the nature and circum- 
 stances of the case) can be reasonably had 
 or obtained for the same hereditaments so to 
 be demised or leased, and so that in every 
 such lease or demise, a condition of re-entry 
 be reserved in case of non-payment of the 
 rent or rents thereby to be reserved by the 
 space of 21 days next after any part of such 
 rent or rents shall become due, and so that 
 the lessee or lessees to be named in each such 
 lease, seal and deliver a counterpart thereof.
 
 Appendix, No. III. e. 395 
 
 APPENDIX, No. III. e. 
 
 Power to grant building Leases on waste or 
 uncultivated Lands. 
 
 Provided always, and it is hereby agreed Appendix, 
 and declared between and by the said parties 
 hereto, that it shall and may be lawful to and 
 for the said A. B. during his life, and after 
 his decease to and for the person, who, by 
 virtue of or under the limitations hereinbefore 
 contained, shall, for the time being, be en- 
 titled to the actual possession, or receipt of 
 the rent and profits, of the said manors and 
 other hereditaments expressed to be hereby 
 granted and released, in case such person 
 shall be of full age, but if not, then for the 
 guardian or guardians for the time being of 
 such person during his minority, to grant, 
 demise, or lease, as well all or any part or 
 parts of the said hereditaments hereinbefore 
 expressed to be hereby granted and released, 
 which consist of uncultivated or waste lands, 
 as also all or any part or parts of the said he- 
 reditaments, which have been at any time or 
 times since the date and execution of the said 
 recited indenture of the day of 
 
 or which shall or may at any time or times 
 hereafter, be allotted in respect of the said 
 manor and other hereditaments hereby grant-
 
 396 Appendix, No. III. e. 
 
 Appendix, e d and released, or any of them or any part 
 
 No. III. e. 
 
 thereof, from or out of any common or com- 
 mons, or waste lands whatsoever, that have 
 been, or shall or may at any time or times 
 hereafter, be divided and enclosed, unto any 
 person or persons, for one, two, or three life 
 or lives, or for any term or number of years, 
 determinable on the death or deaths of one, 
 two, or three person or persons, either in pos- 
 session or reversion, so that there be no more 
 than three lives in being at most upon any 
 part of the said lands so to be demised or 
 leased, at any one time, together with full 
 and free liberty, license, power, and autho- 
 rity, to dig for, and work up, any stone, which 
 may be found in or under the lands so to be 
 demised or leased, for the purpose of erecting 
 and building such houses, cottages, and other 
 buildings as hereinafter are mentioned ; and 
 also to dig clay, gravel, sand, peat, or other 
 soil, which may be necessary for the making 
 of bricks or tiles, to be used in or about the 
 building and erecting such houses, cottages, 
 and other buildings, or in or about the ma- 
 nuring and improving the lands so to be de- 
 mised or leased as last mentioned ; and also 
 to erect, build, and set up in any convenient 
 place or places upon the lands so to be de- 
 mised or leased as last mentioned, all such 
 hovels, sheds, or other buildings, as shall 
 from time to time be necessary for the 
 burning or making such bricks or tiles, as
 
 Appendix, No. III. e. 397 
 
 aforesaid, or for the placing of any workmen. Appendix, 
 
 *. , No. III. e. 
 
 horses, carriages, utensils, or materials to be 
 employed or used in or about the digging of 
 such stone, gravel, sand, or other soil, or the 
 making or burning of such bricks or tiles, 
 as aforesaid, or in or about the cultivat- 
 ing, planting, improving, and enclosing the 
 same lands respectively; and also full and 
 free liberty, license, power, and authority, to 
 erect, build, and set up, in any convenient 
 place or places in or upon the said lands so 
 to be demised or leased as last mentioned, 
 any houses, cottages, or other buildings, 
 which it may be deemed necessary or expe- 
 dient to erect or build thereon, for the better 
 carrying on the cultivation and improvement 
 of such lands respectively, and for the habita- 
 tion and accommodation of the respective 
 lessees thereof, or their under-tenants, work- 
 men, servants, or agents; so that in every 
 such last mentioned lease, all mines, minerals, 
 and quarries, in or under the lands to be 
 thereby respectively demised (except as before 
 mentioned), and full powers for working, 
 raising, and carrying away the same, be ex- 
 pressly excepted and reserved ; and so that 
 upon every such last mentioned lease, there be 
 reserved and made payable during the con- 
 tinuance thereof, the best yearly rent or rents, 
 reservation or reservations, which, under the 
 circumstances of the case, can be reasonably 
 had or gotten for the same, without taking
 
 398 Appendix, No. III. e. 
 
 Appendix, any fine, premium, or foregift in respect 
 thereof; and so that in every such last men- 
 tioned lease, there be contained a condition 
 of power of re-entry for non-payment of the 
 rent or rents, reservation or reservations, to 
 be thereby reserved ; and so as the lessee or 
 respective lessees, to whom every or any such 
 lease shall be made, duly execute a counter- 
 part thereof, and thereby enter into such 
 covenants and agreements for the tilling, 
 manuring, cultivating, planting, improving, 
 and enclosing the lan^s to be comprised in 
 such lease, and for the building, repairing, 
 and keeping in repair, the houses, cottages, 
 and buildings thereon, or to be erected there- 
 on as aforesaid, and for preserving the boun- 
 daries and limits of the same lands respec- 
 tively, and for the training up and preserv- 
 ing the trees and saplings already growing or 
 hereafter to be set or planted thereon, as shall 
 be deemed necessary or proper; and also (if 
 it shall be thought necessary or proper) to 
 enter into any covenant or covenants, for the 
 renewal or renewals of any such last men- 
 tioned lease, either perpetually or for a li- 
 mited time, by the person for the time being 
 seised of, or entitled to, the said manors and 
 other hereditaments comprised in such lease, 
 by adding a new life or lives, in the place or 
 stead of any cestuique vie, or cestuisque vie, 
 who shall die, at or under the yearly rent or 
 rents reserved upon the preceding lease, and
 
 Appendix, No. III. e. 399 
 
 upon payment on each renewal of two years Appendix, 
 improved value of the premises, of which the 
 lease shall be so renewed, as or by way of 
 fine, or upon the reservation of such an addi- 
 tional rent, as shall be equivalent to such im- 
 proved value, and in lieu thereof, so that 
 there be not more than three lives in being at 
 most upon any part of the said lands so to 
 be leased and demised, at any one time, and 
 to grant any lease or leases in pursuance of 
 such covenant or covenants for renewal; and 
 which said covenant or covenants for renewal 
 shall be binding and conclusive upon the per- 
 son or persons, who for the time shall (sub- 
 ject to such lease or leases) be seised of or 
 entitled to the said lands and hereditaments, 
 the lease or leases of which shall be so re- 
 quired to be renewed. 
 
 APPENDIX, No. III. f. 
 
 Power to grant milling leases. 
 
 Provided always, and it is hereby further Appendix, 
 agreed and declared between and by the said 
 parties to these presents, that it shall and 
 may be lawful to and for the said A. B. 
 during his life, and after his decease, to and 
 for the person, who, by virtue of or under the 
 limitations hereinbefore contained, shall, for 
 the time being, be entitled to the actual pos-
 
 400 Appendix, No. HI./ 
 
 Appendix, session or receipt of the rents and profits of 
 
 No. III. f. l r 
 
 the said manors and other hereditaments in 
 the said counties of 
 
 expressed to be hereby granted and released, 
 in case such person shall be of full age, but if 
 not, then to and for the guardian or guardians 
 for the time being, of such person during his 
 minority, to grant, demise, and lease, all and 
 every or any of the mines, veins, and seams 
 of iron, ironstone, and coal, and other mines 
 or minerals, and quarries, found or disco- 
 vered, or which shall or may at any time or 
 times hereafter be opened, found, or dis- 
 covered in, under, or upon any of the same 
 manors or other hereditaments in the said 
 counties of or either of them ; 
 
 and also any part or parts of the same lands 
 and hereditaments, which it shall or may be 
 thought expedient to demise and lease with 
 such mines and quarries, for the better and 
 more effectually working the same, unto any 
 person or persons for any term or number of 
 years not exceeding years, to take 
 
 effect in possession, and not in reversion, or 
 by way of future interest, together with full 
 and free liberty, license, power, and autho- 
 rity, to search for, take, use, and dispose of 
 all such iron, ironstone, coals, and other 
 metals and minerals whatsoever, as shall be 
 found in the same mines, veins, seams, and 
 quarries, and to sink, win, work, and make 
 groves, shafts, drifts, trenches, sluices, way-
 
 Appendix, No. 111. f. 401 
 
 gates, watergates, and watercourses, and to Appendix. 
 erect any furnace or furnaces, fire or other 
 engines, mills, or gins, and to use all other 
 lawful wavs and means whatsoever, as well 
 for the finding, discovering, winning, work- 
 ing, and getting of iron, ironstone, coals, and 
 other metals or minerals, forth and out of 
 the said mines and quarries, as for avoiding 
 and carrying away water, foul air, or stench 
 from, forth, and out of the same; and also 
 full and free liberty, license, power, and 
 authority, to take and use sufficient ground- 
 room, heap-room, and pit-room, for laying, 
 placing, and manufacturing the iron, iron- 
 stone, coals, earth, and rubbish, that shall 
 from time to time proceed from, or be 
 wrought, dug, or gotten out of, the said 
 mines and quarries ; and also full and suffi- 
 cient ways, paths, and passages, to and for 
 the respective lessees to be named in such 
 demises or leases, and their agents, workmen, 
 and servants, from time to time, during the 
 continuance of such leases respectively, to 
 take and carry away with horses, carts, 
 wains, waggons, and other carriages, all the 
 iron, ironstone, coals, metals, and minerals, 
 which shall, from time to time, be wrought, 
 won, or gotten, in, forth, from, and out of, 
 the said mines and quarries thereby to be 
 demised or leased; and also full and free 
 liberty, license, power, and authority to 
 erect, build, and set up, in any convenient 
 
 VOL. 1. D D
 
 404 Appendix, No. III./. 
 
 Appendix, place or places, near any of the said mines 
 
 No. III. f. 
 
 or quarries so to be demised or leased, 
 all such houses, hovels, lodges, sheds, or 
 other buildings, as shall from time to time 
 be needful, or convenient for the standing, 
 laying, and placing any workmen, horses, 
 gear, utensils, or materials, to be employed 
 or used in or about the working of the said 
 mines and quarries respectively; and to dig, 
 and get up, stone, peat, or clay, for erect- 
 ing, building, and repairing such houses 
 and other buildings, and to do whatsoever 
 else shall be deemed needful or requisite in 
 or about, or for, the winning, working, ob- 
 taining, getting, washing, cleansing, and 
 smelting, of iron, ironstone, coals, metals, 
 and minerals from, forth, and out of the 
 said mines and quarries, and for the manu- 
 facturing, taking, and carrying away the 
 same, so that upon every such lease there be 
 reserved and made payable, during the 
 continuance thereof, the best and most 
 improved yearly rent or rents, tolls, du- 
 ties, and reservations that can, under the 
 circumstances of the case, be reasonably had 
 or gotten for the same, without taking any 
 fine, premium, or foregift, for the making 
 thereof, and so that in every such lease there 
 be contained a condition or power of re-entry 
 for the non-payment of the rent or rents, 
 tolls, duties, or reservations, to be thereby re- 
 spectively reserved, at such time or times
 
 Appendix, No. IV. a. 403 
 
 after the same shall become due, as shall be Appendix, 
 
 No. HI. f. 
 
 thought proper or deemed advisable; and 
 so that the respective lessees to be named in 
 such leases duly execute counterparts thereof 
 respectively, and enter into such covenants 
 and agreements for the due and punctual ren- 
 dering and paying the rent or rents, tolls, du- 
 ties, and reservations to be thereby respec- 
 tively reserved, and for the working and 
 managing of the said mines and works, and 
 for the building, repairing, and keeping in re- 
 pair, the houses, cottages, and other build- 
 ings to be mentioned in such leases respec- 
 tively, as shall be deemed necessary, or as 
 shall be thought proper and reasonable. 
 
 APPENDIX, No. IV. a. 
 
 Power enabling a Tenant for Life in Posses- 
 sion to limit a Rent-charge by way of Join- 
 ture. 
 
 Provided always, and it is hereby agreed Appendix, 
 
 and declared between and by the said par- 
 ties hereto, that it shall and may be lawful 
 for the said A. B. by any deed or deeds, in- 
 strument or instruments in writing, with or 
 without power of revocation and new ap- 
 pointments, to be by him sealed and delivered 
 in the presence of, and attested by, two or 
 more credible witnesses, or by his last will 
 d d 2 
 
 No. IV. a.
 
 404 Appendix, No.IW.a. 
 
 Appendix, and testament in writing, or any codicil or 
 
 No. IV. a. jiii* • i t 
 
 codicils thereto, to be by him signed and 
 published in tht presence of, and attested by, 
 three or more credible witnesses, but subject, 
 and without prejudice, to the said yearly rent- 
 charge of £ and the powers and re- 
 medies hereinbefore limited for enforcing the 
 payment thereof, and to the aforesaid term 
 of 99 years under the trusts aforesaid, for 
 better securing the same yearly rent-charge, 
 to limit or appoint to, or to the use of, or in 
 trust for, any woman or women, whom he 
 shall or may marry, for her or their life or 
 respective lives, and for, or by way of, her or 
 their jointure or respective jointures, and in 
 bar, or without being in bar, of her or their 
 dower or respective dowers, and either be- 
 fore or after marriage, any annual sum or 
 annual sums of money, or yearly rent-charge 
 or yearly rents-charge, not exceeding for 
 one woman the yearly sum of £ of 
 lawful money of Great Britain, to be issuing 
 and payable out of, and charged and charge- 
 able upon, all or any part of the manor and 
 other hereditaments expressed to be hereby 
 appointed and released, free from taxes, and 
 without any other deduction whatsoever, and 
 to be paid in such manner, as to the said A. B. 
 shall seem meet; and also to limit and ap- 
 point to or for the woman or women respec- 
 tively, to or for whom the annual sum or 
 annual sums, or yearly rent-charge or yearly
 
 Appendix, No. IV. a. 405 
 
 rents-charge, shall be so appointed as afore- Appendix, 
 said, usual powers and remedies for recover- 
 ing and enforcing payment thereof respec- 
 tively by distress and entry upon, and percep- 
 tion of the rents and profits of, the heredita- 
 ments which shall be so charged with the 
 said annual sum or annual sums, yearly rent- 
 charge or yearly rents-charge ; and also to 
 limit and appoint the hereditaments, which 
 shall be so charged, to any person or persons, 
 for any term or terms of years, with or with- 
 out impeachment of waste, upon such trusts 
 for better securing the due payment of such 
 annual sum or annual sums, or yearly rent- 
 charge or yearly rents-charge, as to the said 
 A. B. shall seem meet; but so, that upon the 
 death of the woman or respective women, for 
 the benefit of whom such term or respective 
 terms shall be so created, and the payment 
 of the rent-charge or respective rents-charge, 
 and the expenses incurred by the non-pay- 
 ment thereof respectively, the term or re- 
 spective terms, which shall be created for 
 securing such yearly rent-charge or respective 
 rents-charge, or so much of the same term 
 or respective terms, as shall not be disposed 
 of under the trusts to be declared for securing 
 the same yearly rent-charge or respective 
 rents-charge, shall be made to cease and de- 
 termine. 
 
 d d 3
 
 406 Appendix, No. IV 0. 
 
 APPENDIX, No. IV. b. 
 
 Proviso enabling Tenants for Life in Re- 
 mainder to limit Rents-charge, by ivay of 
 Jointure. 
 
 Appendix, Provided always, and it is hereby agreed 
 
 and declared between and by the said parties 
 to these presents, that it shall and may be 
 lawful for each of them the said C. D., E. F., 
 and G. H., either before, or when, by virtue 
 of the limitations hereinbefore contained, he 
 shall be in the possession, or entitled to the 
 receipt of the rents and profits of the here- 
 ditaments expressed to be hereby appointed 
 and released, by any deed or deeds, instru- 
 ment or instruments, in writing, with or 
 without power of revocation and new ap- 
 pointment, to be by him sealed and deliver- 
 ed in the presence of, and attested by, two 
 or more credible witnesses, or by his last 
 will and testament in writing, or any codicil 
 or codicils thereto, to be by him signed and 
 published in the presence of, and attested by, 
 three or more credible witnesses (but subject, 
 and without prejudice, to the uses and estates 
 preceding the use or estate of the person, 
 making such appointment, and to the powers 
 relating to such preceding uses or estates, if 
 any such uses, estates, or powers shall be
 
 Appendix, No. IV. b. 407 
 
 then subsisting, or capable of taking effect, Appendix, 
 or being exercised ; and also subject, and 
 without prejudice, to the uses or estates, if 
 any, which shall or may be limited in exer- 
 cise of the same powers or any of them), to 
 limit or appoint unto, or to the use of, or in 
 trust for, any woman or women, with whom 
 he may intermarry, for the life or respective 
 lives of such woman or women respectively, 
 and for her or their jointure or respective 
 jointures, and in bar, or without being in bar, 
 of her or their dower or respective dowers, 
 and either before or after marriage, any annual 
 sum or yearly rent-charge, or annual sums or 
 yearly rents-charge, not exceeding in the whole 
 for one woman the sum of £ of lawful 
 money of Great Britain, to be yearly issuing 
 out of, and charged and chargeable upon, all 
 or any part of the said hereditaments ex- 
 pressed to be hereby appointed and released, 
 free from taxes, and without any other deduc- 
 tion whatsoever, and to be paid in such manner 
 as to him shall seem meet ; and also to limit 
 or appoint to or for the woman or respective 
 women to or for whom such annual sum or 
 yearly-rent charge, annual sums or yearly 
 rents-charge, shall be so appointed, usual 
 powers and remedies for recovering and com- 
 pelling payment thereof by distress and entry, 
 and perception of rents and profits ; and also 
 to limit and appoint the same hereditaments 
 unto any person or persons for any term or 
 d d 4
 
 408 Appendix, No. IV. h. 
 
 Appendix, terms of* years, either with or without im- 
 
 No. IV. b. J ' 
 
 peachment of waste, upon such trusts, for bet- 
 ter securing the due payment of such annual 
 sum or annual sums, or yearly rent-charge or 
 yearly rents-charge, as to the person, for the 
 time being making such appointment, shall 
 seem meet ; but so that, upon the death of the 
 woman or respective women for the benefit of 
 whom such term or respective terms shall be 
 so created, and the paymentof the rent-charge 
 or respective rents-charge, and the expenses 
 incurred by the non-payment thereof respec- 
 tively, the term or respective terms, which 
 shall be created for securing such yearly rent- 
 charge or respective rents-charge, or go much 
 of the said term or respective terms, as shall 
 not be disposed of under the trusts to be 
 declared for securing the same yearly rent- 
 charge or respective rents-charge, shall be 
 made to cease and determine : but it is here- 
 by agreed and declared between and by the 
 said parties to these presents, that if they the 
 said B. D., E. F., and G. H., or any of them, 
 at any time or times hereafter, before they 
 respectively shall, by virtue of, or under, the 
 limitations hereinbefore contained, be in the 
 actual possession, or receipt of the rents and 
 profits, of the hereditaments expressed to be 
 hereby appointed and released, shall, in exer- 
 cise of the powers hereinbefore reserved to 
 them respectively, limit and appoint to, or in 
 trust for, any woman or women whom he ov
 
 Appendix, No. IV. b. 409 
 
 thev shall or inay marry, any annual sum or Appendix, 
 
 " J i No. IV. b. 
 
 annual sums, or yearly rent-charge or yearly 
 rents-charge, by way of jointureas aforesaid, 
 then and in every such case, no annual sum 
 or annual sums, yearly rent-charge or yearly 
 rents-charge, which shall be so limited or ap- 
 pointed as aforesaid, shall take effect in pos- 
 session, or charge the hereditaments expressed 
 or intended to be charged with the same re- 
 spectively, or be payable, unless and until the 
 person limiting or appointing the same as 
 aforesaid, shall under, or by virtue of, the li- 
 mitations aforesaid, or some of them, become 
 entitled to the possession or receipt of the 
 rents and profits of the same hereditaments, 
 or if he shall die previously thereto, then un- 
 less and until he would, in consequence of 
 the determination of the uses or estates pre- 
 ceding the use or estate hereby limited to 
 him, have become, if living, entitled to the 
 possession or receipt of the rents and profits 
 of the same hereditaments, at any time during 
 the life of his wife, to or for whom such an- 
 nual sum or yearly rent-charge shall be so 
 limited as aforesaid. 
 
 Provided also, and it is hereby agreed and 
 declared between and by the said parties to 
 these presents, that the said hereditaments 
 shall not, under or by virtue of these presents, 
 or the powers hereinbefore contained, or any 
 of them (and including the said yearly rent-
 
 410 Appendix, No. V. a. 
 
 Appendix, charge of £ , provided for the said I. K. 
 
 No. IV. b. ° • ,n , 
 
 as aforesaid), be at any one time subject or 
 liable to the payment of any annual sum or 
 annual sums, or yearly rent-charge or yearly 
 rents-charge by way of jointure, exceeding in 
 the whole the annual sum of £ ; so that if, 
 by virtue or in exercise of the aforesaid powers 
 of jointuring, or any of them, the said here- 
 ditaments, or any part or parts thereof, would, 
 in case this present proviso had not been in- 
 serted, be charged with a greater annual sum 
 for jointures in the whole, than the said sum 
 of £ , the payment of the sum occasion- 
 
 ing such excess, or such part thereof as shall 
 occasion the same, shall, during the time of 
 such excess, be suspended. 
 
 APPENDIX, No. V. a. 
 
 Proviso enabling a Tenant for Life, in Pos- 
 session, to charge for younger Children s 
 Portions. 
 
 Appendix, Provided always, and it is hereby agreed 
 
 and declared between and by the said parties 
 hereto, that it shall and may be lawful to and 
 for the said A. B., at any time or times du- 
 ring his life, by any deed or deeds, instrument 
 or instruments in writing, with or without 
 power of revocation and new appointment, to 
 be by him sealed and delivered in the pre- 
 
 No. V. a.
 
 Appendix, No. V. a. 411 
 
 sence of, and to be attested by, two or more Appendix, 
 
 No. V. a. 
 
 credible witnesses, or by his last will and tes- 
 tament in writing, or any codicil or codicils 
 thereto, to be by him signed and published 
 in the presence of, and attested by, three or 
 more credible witnesses (but subject, and 
 without prejudice, to the said yearly rent- 
 charge of £ and the powers and reme- 
 dies hereinbefore limited for enforcing pay- 
 ment thereof, and to the said term of 99 
 years, under the trusts aforesaid, for better 
 securing the same yearly rent-charge, and also 
 subject, and without prejudice, to any other 
 jointure, which may be limited or created 
 by the said A. B., in exercise of the power 
 hereinbefore reserved to him for that purpose), 
 to subject and charge all or any part of the 
 said hereditaments expressed to be hereby re- 
 leased, to and with the payment of any sum 
 or sums of money, not exceeding in the whole 
 the sum of £ of lawful money of 
 Great Britain, for the portion or portions of 
 all, and every, or any of the children of the 
 said A. B. /lawfully begotten or to be begotten 
 (other than, or not being any of them an 
 eldest or only son for the time being entitled 
 to the said hereditaments expressed to be 
 hereby released for an estate tail in possession, 
 or in remainder expectant upon the decease 
 of the said A. B.), with interest for the same 
 at any rate, not exceeding 5/. for every 100/. 
 by the year, to be paid to, or shared and di-
 
 412 Appendix, No. V. a. 
 
 Appendix, vided between or amongst all, and every, or 
 any one or more of the children of the said A. 
 B. (other than, or not being any of them an 
 eldest or only son for the time being entitled 
 as aforesaid), at such age or respective ages* 
 days, or times, and in such parts, shares, and 
 proportions, and with such conditions, re- 
 strictions, and limitations over for the benefit 
 of some or one of the same children (other 
 than, or not being any of them an eldest or 
 only son for the time being entitled as afore- 
 said), and in such manner, as he the said 
 A. B., by any deed or deeds, instrument or 
 instruments in writing, with or without power 
 of revocation and new appointment, to be by 
 him sealed and delivered in the presence of, 
 and attested by, two or more credible wit- 
 nesses, or by his last will and testament in 
 writing, or any codicil or codicils thereto, to 
 be by him signed and published in the pre- 
 sence of, and attested by, three or more cre- 
 dible witnesses, shall direct or appoint; and 
 that for the purpose of raising such portion 
 or portions, with interest for the same, it 
 shall and may be lawful for the said A. B. 
 by the same or any other deed or deeds, in- 
 strument or instruments in writing, so sealed 
 and delivered and attested as aforesaid, or by 
 such his last will and testament in writing, 
 or any codicil or codicils thereto, so signed, 
 published, and attested as aforesaid (but sub- 
 ject, and without prejudice, as hereinbefore is
 
 Appendix, iVo.V. b. 413 
 
 mentioned), to limit or appoint all or any ^J p y d ^ - 
 part of the hereditaments, which shall be so 
 charged as hereinbefore is mentioned, with 
 the appurtenances, to any person or persons, 
 for any term or terms of years, with or with- 
 out impeachment of waste, in trust, by way 
 of mortgage, to raise the money so to be 
 charged ; but so that it be declared by the 
 deed, will, or instrument, creating such term 
 or terms of years, that when the trusts, which 
 shall be declared concerning the same term 
 or terms, shall have been fully performed or 
 satisfied, or shall have become unnecessary or 
 incapable of being performed, and the costs, 
 charges, and expenses, if any, of the trustee 
 or trustees of the same term or terms in and 
 about the execution and performance of the 
 trusts thereof, shall be paid or satisfied, the 
 same term or terms, or so much thereof, as 
 shall not be disposed of under the trusts 
 thereof, shall cease and determine. 
 
 APPENDIX, No. V. b. 
 
 Proviso enabling TenantsforLifeinRemainder 
 to charge for younger ChildreiCs Portions. 
 
 Provided always, and it is hereby further Appendix, 
 
 J J No. V. b. 
 
 agreed and declared between and by the said 
 parties to these presents, that it shall and 
 may be lawful to and for each of them the
 
 114 Appendix, No. V. b. 
 
 Appendix, said C. D., E. F., and G. H., either before or 
 
 Wo. V. b. 
 
 when, and as, by virtue of or under the limit- 
 ations hereinbefore contained, he shall be in 
 the actual possession, or receipt of the rents 
 and profits of the said hereditaments, ex- 
 pressed to be hereby released, by any deed or 
 deeds, instrument or instruments in writing, 
 with or without power of revocation and new 
 appointment, to be by him sealed and de- 
 livered in the presence of, and attested by, 
 two or more credible witnesses, or by his last 
 will and testament in writing, or any codicil 
 or codicils thereto, to be by him signed and 
 published in the presence of, and attested by, 
 three or more credible witnesses (but subject, 
 and without prejudice, to the uses and estates 
 preceding the use or estate hereby limited to 
 him, and to the powers relating to such pre- 
 ceding uses or estates, if any such uses, es- 
 tates, or powers shall be then subsisting, or 
 capable of taking effect and being exercised ; 
 and also subject and without prejudice to the 
 uses or estates to be limited in execution of 
 the same powers or any of them, and subject 
 and without prejudice to any jointure limited 
 or created, or which shall be limited and 
 created by him in exercise of the power for 
 that purpose hereinbefore reserved to him), to 
 subject and charge all or any part of the said 
 hereditamentsexpressedtobeherebyreleased, 
 to and with the payment of any sum or sums 
 of money for the portion or portions of the
 
 Appendix, No. V. b. 415 
 
 child or children of the person making such Appendix, 
 appointment, other than, or not being any of 
 them an eldest or only son for the time being 
 entitled to the said hereditaments, for an es- 
 tate in tail male in possession, or in remain- 
 der expectant on the decease of his parent, 
 not exceeding in the whole the sum or sums 
 of money hereinafter mentioned, (that is to 
 say ;) If but one such child, other than, or 
 not being an eldest or only son for the time 
 being entitled as aforesaid, not exceeding the 
 sum of £ for his or her portion ; if two 
 or three such children, and no more, other 
 than, or not being any of them an eldest or 
 only son for the time being entitled as afore- 
 said, not exceeding the sum of £ for their 
 portions ; and if more than three such chil- 
 dren, other than, or not being any of them an 
 eldest or only son for the time being entitled 
 as aforesaid, not exceeding the sum of £ 
 for their portions ; and with interest for the 
 same sums of money respectively, at any rate 
 not exceeding 51. for every 100/. by the year; 
 and such sum or sums of money to be paid to 
 such child, or if more than one such child, 
 then to be paid to, shared and divided between 
 or among, the children respectively for whom 
 the same shall be intended to be provided, at 
 such age or respective ages, days, or times, 
 and if more than one, in such parts, shares, 
 and proportions, and with such conditions, 
 restrictions, and limitations over for the be-
 
 No. V. b. 
 
 416 Appendix, No. V. h. 
 
 Appendix, nefit of some or one of the same children, as 
 the person making such limitation or ap- 
 pointment shall by any deed or deeds, in- 
 strument or instruments in writing, with or 
 without power of revocation and new ap- 
 pointment, to be by him sealed and delivered 
 in the presence of, and to be attested by, two 
 or more credible witnesses, or by his last will 
 and testament in writing, or any codicil or 
 codicils thereto, to be by him signed and 
 published in the presence of, and attested by 
 three or more credible witnesses, direct or 
 appoint ; but so nevertheless, that if there 
 shall be only one such child of the person 
 making such appointment, who shall live to 
 attain a vested interest in the sum or sums of 
 money so to be charged as aforesaid, such 
 child shall not in any case, by survivorship or 
 otherwise, have or be entitled to more than 
 the sum off for his or her portion; and 
 
 if there shall be two or three such children, 
 and no more, who shall live to attain vested 
 interests in the respective portions so to be 
 charged as aforesaid, such two or three chil- 
 dren shall not in any case, by survivorship or 
 otherwise, have, or be entitled to more than 
 the sum of £ for their portions : and 
 
 that for the purpose of raising such portion 
 or portions and interest for the same respec- 
 tively, it shall and may be lawful to and for 
 the person making such appointment as lastly 
 hereinbefore is mentioned, "by the same, or
 
 Appendix ; No. \.b. 417 
 
 any other deed or deeds, instrument or in- Appendix, 
 
 J . No. V. b. 
 
 struments in writing, so sealed, delivered and 
 attested as aforesaid, or by such his last will 
 and testament in writing, or any codicil or 
 codicils thereto, so signed, published, and 
 attested as aforesaid, but subject and with- 
 out prejudice as aforesaid, to limit or ap- 
 point all or any part of the hereditaments 
 which shall be so charged as lastly herein- 
 before is mentioned, to any person or persons 
 for any term or terms of years, with or with- 
 out impeachment of waste, upon trust, by 
 way of mortgage, to raise the money so to 
 be charged ; but so that it be declared by the 
 deed, will, or instrument creating such term 
 or terms of years, that when the trusts which 
 shall be declared concerning the same term 
 or terms shall have been fully performed or 
 satisfied, or shall have become unnecessary or 
 incapable of being performed, and the costs, 
 charges, and expenses, if any of the trustee 
 or trustees of the same term or terms in and 
 about the execution and performance of the 
 trusts thereof shall be paid or satisfied, the 
 same term or terms, or so much thereof as shall 
 not be disposed of under the trusts thereof, 
 shall cease and determine: but it is hereby 
 agreed and declared between and by the said 
 parties hereto, that if the said C. D., E. F., 
 and G. H., or any of them, at any time or 
 times hereafter, before they shall respectively 
 by virtue of, or under, the limitations here- 
 
 VOL. I. E E
 
 41 8 Appendix, No. W.b. 
 
 Appendix, inbefore contained, be in the actual posses- 
 sion or receipt of the rents and profits of the 
 hereditaments expressed to be hereby released, 
 shall, in exercise of the powers hereinbefore 
 enabling them respectively in that behalf, 
 subject and charge the said hereditaments or 
 any of them, or any part thereof, with the 
 payment of any sum or sums of money for a 
 portion or portions as aforesaid ; then, and in 
 every such case, the sum or sums of money 
 so expressed or intended to be charged for a 
 portion or portions, shall not be a lien or a 
 charge upon the hereditaments so expressed, 
 or intended to be charged with the same re- 
 spectively, or become vested in, or payable 
 to, any person or persons whomsoever, nor 
 carry interest, unless and until the person or 
 persons so charging the same hereditaments 
 with a portion or portions as aforesaid, or 
 some one, or more of his or their issue male, 
 shall under, or by virtue of, the limitations 
 hereinbefore contained, or any of them, be- 
 come entitled to the actual possession or re- 
 ceipt of the rents and profits of the same 
 hereditaments, any thing hereinbefore con- 
 tained to the contrary notwithstanding: pro- 
 vided always, nevertheless, and it is hereby 
 agreed and declared between and by the said 
 parties to these presents, that the said here- 
 ditaments shall not under, or by virtue of, 
 the powers hereinbefore contained, or any of 
 them, be at any one time subject or liable to
 
 Appendix, No. VI. 419 
 
 the payment of any sum or sums of money Appendix, 
 
 , No. V. b. 
 
 exceeding the principal sum of <£ in the 
 whole, for the portions of daughters or 
 younger sons as aforesaid. 
 
 APPENDIX, No. VI. 
 
 Provided always, and it is hereby de- Appendix, 
 iii ii i t . . , No. VI. 
 
 clared and agreed, by and between the said „ , „. 
 
 ° " Power of selling 
 
 parties to these presents, that it shall and andexd,aD s h, s- 
 may be lawful to and for the said B. B. and 
 C. C. and the survivor of them, and the heirs 
 of such survivor, and they and he are hereby 
 authorized and empowered, at any time or 
 times hereafter, at the request and by the 
 direction of the said E. E. and I. T. during 
 their joint lives, and after the decease of ei- 
 ther of them, then at the request and by the 
 direction of him or her surviving, during his 
 or her life (such request and direction to be 
 testified by some writing or writings sealed 
 and delivered by the said E. E. and I. T. or 
 the survivor of them, and to be attested by 
 two or more credible witnesses), to make 
 sale, alien, and dispose of, or to convey in 
 exchange for, or in lieu of, other messuages, 
 lands, or hereditaments, to be situate some- 
 where in England or Wales, all or any part 
 of the hereditaments hereby granted and re- 
 leased, or intended so to be, with the appur- 
 tenances, and the inheritance thereof in fee- 
 e e 2
 
 4*20 Appendix, No. VI 
 
 simple, to any person or persons 
 
 either together or in parcels, for such price 
 
 Appendix, simple, to any person or persons whomsoever, 
 
 Tower of selling 
 
 and exchanging. r prices in money, or for such equivalent or 
 recompense in messuages, lands, or heredita- 
 ments, as to them the said B. B. and C. C 
 or the survivor of them, or his heirs, shall 
 seem reasonable; and that for the intents and 
 purposes aforesaid, or any of them, it shall 
 and may be lawful to and for the said B. B. 
 and C. C. and the survivor of them, and the 
 heirs of such survivor, at such request, and 
 with such direction, and so testified as afore- 
 said, by any deed or deeds, writing or writ- 
 ings, to be by them the said B. B. and C. C. 
 or the survivor of them, or his heirs, sealed 
 and delivered in the presence of, and attested 
 by, two or more credible witnesses, to revoke, 
 determine, and make void all and every the 
 uses, estates, trusts, limitations, powers, pro- 
 visoes, and agreements, hereinbefore limited, 
 expressed, declared, and contained, of and 
 concerning the hereditaments so to be sold or 
 exchanged, or any part thereof; and by the 
 same, or any other deed or deeds, writing or 
 writings, to be by him or them sealed and 
 delivered, and attested as aforesaid, to limit 
 and appoint, direct and declare, such use or 
 uses, estate or estates, trust or trusts, of the 
 hereditaments, the uses whereof shall be so 
 revoked, which it shall be thought necessary 
 or expedient to limit, declare, or appoint, 
 in order to effect such sale, exchange, or
 
 Appendix, No. VI. 421 
 
 disposition as aforesaid : and that upon any Appendix, 
 
 r ' . l J No. VI. 
 
 such exchange as aforesaid, it shall and may p owerofse i lin 
 be lawful for the said B. B. and C. C. or the ^exchanging. 
 survivor of them, or his heirs, to receive or 
 take any sum or sums of money by way of 
 equality of exchange; and also upon pay- 
 ment of any money to arise by such sale of 
 the said hereditaments, or any part thereof, 
 or any money to be received or taken for, or 
 by way of, equality of exchange, it shall and 
 may be lawful to and for the said B. B. and 
 C. C. or the survivor of them, or his heirs, 
 to give and sign receipts for the money, for 
 which the same shall be so sold, or so to be 
 paid for equality of exchange; which re- 
 ceipts shall be sufficient discharges to the 
 person or persons paying the same respec- 
 tively, for the money for which the same 
 shall be so given, or for so much thereof as 
 in such receipts shall be respectively acknow- 
 ledged or expressed to be received ; and that 
 the person or persons paying the same re- 
 spectively, and taking such receiptor receipts 
 for the same as aforesaid, shall not after- 
 wards be obliged to see to the application^ or 
 be in any wise answerable or accountable for 
 any loss, misapplication, or non-application 
 of such money, or any part thereof 1 . Pro- 
 
 a It is usual to introduce sold, or exchanged, shall 
 
 a clause in this place de- be discharged of the uses 
 
 claring, that upon sale or of the settlement; and that 
 
 exchange, the estates so the releases shall Ihcncc- 
 
 E E 3
 
 422 Appendix , No. VI. 
 
 Appendix, vided nevertheless, and it is hereby also de- 
 No. VI. 
 
 , „. clared and agreed, by and between the said 
 
 Power of selling ° ' J 
 
 and exchanging. p ar ties hereto, that when all or any part or 
 parcel of the said hereditaments, hereby made 
 saleable as aforesaid, shall be sold in pur- 
 suance of these presents for a valuable con- 
 sideration in money, and also when any sum 
 or sums of money shall be received for equa- 
 lity of exchange in pursuance of the power 
 hereinbefore contained, then they the said 
 B. B. and C. C. or the survivor of them, or 
 his heirs, shall with all convenient speed 
 (with the consent of the said E. E. and I. T. 
 during* their joint lives, or of the survivor of 
 them during his or her life, to be testified by 
 writing under their, his, or her hands or 
 hand, and after the decease of such survivor, 
 then with the consent in writing of the per- 
 son or persons who would, under or by virtue 
 of the limitations hereinbefore contained, or 
 to be contained or referred to in the settle- 
 ment or conveyance hereinafter directed, or 
 any of them, be for the time being in the 
 actual possession, or entitled to the receipt 
 of the rents and profits of the hereditaments 
 
 forth stand seised to the use for a variety of circum- 
 
 of the purchaser. But this stances, there is an impro- 
 
 clause seems to be altoge- priety in declaring, that the 
 
 ther useless : for the ap- releasees in the original set- 
 
 pointment under the power tlement shall stand seised to 
 
 must necessarily discharge the use of the purchaser, or 
 
 the estates of the former the person to whom the es- 
 
 uses. Besides, as the uses tate shall be conveyed, and 
 
 under the appointment may his heirs, 
 be limited, so as to provide
 
 AppenclLv, No. VI. 
 
 423 
 
 to be purchased as hereinafter is mentioned Appendix, 
 
 . No. VI. 
 
 or directed, in case the same were then actu- „ . ... 
 
 ' Tower of selling 
 
 ally purchased, if such person or persons be and exchanging. 
 of full age, but if not, then with the consent 
 in writing of the guardian or guardians for 
 the time being of such person or persons re- 
 spectively) lay out b and invest all and every 
 
 b Sometimes the follow- 
 ing form is adopted in lieu 
 of that here stated — " lay 
 " out and invest the monies 
 " to arise hy such sale or 
 " sales, and to be received 
 " for equality of exchange, 
 " in the purchase of a clear 
 " and indefeasible estate of 
 " inheritance in fee-simple, 
 " or of lands of a leasehold 
 "■ or copyhold tenure con- 
 ** venient to be held there- 
 " with, or with any of the 
 " hereditaments hereiube- 
 u fore expressed to be here- 
 " by granted and released 
 " (such leasehold heredita- 
 " ments being held for an 
 " unexpired term of not 
 " less than GO years); and 
 " moreover that the said B. 
 " B. and C. C. or the sur- 
 " vivor of them, or the 
 " heirs, executors, or ad- 
 " ministrators of such sur- 
 " vivor, do and shall settle 
 " and assure, or cause to be 
 " settled aud assured, as 
 " well the messuages, lands, 
 " tenements, and heredita- 
 " ments so to be purchased, 
 " as the messuages, lands, 
 " tenements, and heredita- 
 " ments so to be received 
 " in exchange as hereinbe- 
 a fore is mentioned, to such 
 
 " aud the same uses, upon 
 " and for such and the same 
 " trusts, intents, and pur- 
 " poses, and with, under, 
 " and subject to, such and 
 '* the same powers, provi- 
 " soes, declarations, and 
 " agreements, as are in and 
 " by these presents limited, 
 " expressed, declared, and 
 "contained of and con- 
 " cerning the premises, 
 " which shall be so sold or 
 " exchanged, or as near 
 " thereto as the nature or 
 " quality of the lands so to 
 " be purchased, and the 
 " deaths of parties, and 
 " other circumstances, will 
 "permit; yet so that if any 
 " of the said hereditaments 
 " so to be purchased shall 
 " be held by lease or leases 
 " for years, the same lease- 
 " hold hereditaments shall 
 "not vest absolutely in any 
 " son of the said E. E. on 
 " the body of the said F. F. 
 " to be begotten, who shall 
 " take an estate in tail by 
 "purchase of and in the 
 " said freehold heredita- 
 " ments, unless such son 
 " shall attain the age of 21 
 " years, or shall die under 
 " that age, leaving issue of 
 " his body living at his de- 
 
 E 4
 
 424 Appendix, No. VI. 
 
 Appendix, the sum and sums of money, which shall 
 arise by such sale or sales, and be paid for 
 
 Power of selling J . 
 
 and exchanging, equality of exchange as aforesaid, in the 
 purchase of other messuages, lands, or here- 
 ditaments in possession, to be situate, being, 
 or arising somewhere in England or Wales, 
 of a clear and indefeasible estate of inherit- 
 ance in fee-simple (whereof any part, not 
 exceeding one fourth part in any one pur- 
 chase, may, if the parties interested shall 
 think fit, be copyhold of inheritance) ; and as 
 well the hereditaments so to be purchased, 
 as all and every the hereditaments so to be 
 received in exchange as aforesaid, shall there- 
 after forthwith be settled, conveyed, and as- 
 sured to, for, and upon, such uses, trusts, 
 intents, and purposes, and with, under and 
 subject to such powers, provisoes, conditions, 
 and agreements, as are in and by these pre- 
 sents limited, expressed, declared, and con- 
 tained, of and concerning the hereditaments 
 in lieu of which, the hereditaments so to be 
 purchased, or received in exchange, shall be 
 substituted, or as near thereto as the deaths of 
 parties, and other contingencies, or the cir- 
 cumstances of the case, will then permit. Pro- 
 vided always, and it is hereby further declar- 
 
 " cease, or born in due time " absolute vesting as afore- 
 
 " after ; but nevertheless " said, be entitled to the 
 
 " the son so for the time " rents, issues, and profits 
 
 " being entitled as afore- " of the same leasehold he- 
 
 " said shall, after the death " reditaments for his own 
 
 <c of the said E. E., and " use and benefit, subject 
 
 " during such suspense of u as aforesaid/'
 
 Appendix, No. VI. 425 
 
 ed and agreed by and between the said parties ^?£ e v d i x ' 
 to these presents, that in the mean time and Power of selling 
 until the money to arise by such sale or sales, andcxcLan g' in g- 
 or to be received for equality of exchange as 
 aforesaid, shall be laid out and invested in a 
 purchase or purchases in the manner herein- 
 before mentioned, it shall and may be lawful 
 to and for the said B. B. and C. C. and the 
 survivor of them, and the heirs of such sur- 
 vivor, by and with the consent and approba- 
 tion of the said E. E. and I. T. or of the sur- 
 vivor of them, to be testified as last men- 
 tioned, and from and after the decease of 
 such survivor, then by and of the proper au- 
 thority of the said trustees or trustee for the 
 time being, from time to time to place out 
 and invest such sum or sums of money in the 
 public stocks or funds of Great Britain, or 
 at interest upon government or real secu- 
 rities in England or Wales ; and from time 
 to time, with such consent and approbation, 
 and so testified as aforesaid, or of their or 
 his own proper authority, as the case shall 
 happen, to alter, vary, sell, transfer, and dis- 
 pose of such stocks, funds, or securities, and 
 lay out and invest the money arising by such 
 alteration, sale, transfer, or disposition again, 
 upon new or other stocks or funds, or at in- 
 terest upon government or real securities of 
 the like nature, as often as they shall think 
 proper; and the interest, dividends, and an- 
 nual proceeds arising from such stocks, funds,
 
 426 Appendix, No. VII. 
 
 Appendix, or securities, shall from time to time go and 
 No. vi. - , . ; . , , 
 
 . ... be paid to such person or persons, and be ap- 
 
 Power of selling » r l ' * 
 
 and exchanging, plied to such uses, intents and purposes, and 
 in such manner as the rents and profits of 
 the hereditaments, to be purchased therewith, 
 would go and be payable, or applicable, in 
 case such purchase or purchases were actually 
 made. 
 
 APPENDIX, No. VII. 
 
 See pages 178 to 192, ivhere the case, upon 
 which the following opinion was given, is 
 stated. 
 
 Appendix, yy e nave considered this case with the 
 
 No. VII. 
 
 opinions, which have been given thereon. 
 
 We think, that the power of sale and ex- 
 change was not destroyed by the recoveries 
 suffered in 1811. 
 
 It is unnecessary toconsider the distinction, 
 which has been taken between powers colla- 
 teral or in gross, and powers simply colla- 
 teral; as the ground upon which Mr. — 
 thinks, that the recovery destroys the power, 
 viz. "that the power is a contingent use, 
 " which is collateral to the estate tail, and 
 "if exercised would over-reach it," would 
 equally apply to powers of both descriptions. 
 We know of no authority for this position,
 
 Appendix, No. VII. 427 
 
 The rule, as established by the cases, we con- Appendix, 
 
 , , , . No. vn. 
 
 ceive to be, that a recovery by tenant in tail 
 destroys conditional limitations, which would 
 determine the estate tail before a failure of 
 issue, as well as remainders expectant upon 
 the natural determination of the estate. But 
 we think, that the power of sale and ex- 
 change is not in the nature of a conditional 
 limitation, or a contingent use defeating or 
 determining an estate tail. The execution of 
 the power, is the limitation of a use under, 
 and by the effect of, the instrument, by which 
 the power was reserved, and within the com- 
 pass of an estate prior to the estate tail, in 
 substitution of all the uses of the settlement. 
 It is in the nature of a condition, that runs 
 with the land, and not a collateral condition 
 or limitation taking effect, when the event 
 happens, upon which the estate tail is made 
 to determine. The execution of the power, 
 although it over-reaches the estate tail, can- 
 not be said to determine it ; inasmuch, as 
 the uses created are prior in limitation to the 
 commencement of the estate tail ; and we 
 think, that, in order for the recovery to bar, 
 it is necessary, that the use, to arise under 
 the power, should operate, strictly speaking, 
 as a remainder, upon the particular estate. 
 It is impossible to contend, that all contingent 
 uses over-reaching an estate tail #r* barable 
 by a recovery ; as many cases will suggest 
 themselves, where the contrary is obvious;
 
 428 Appendix, No. VII. 
 
 No. e vii? such as contingent remainders to the unborn 
 children of a prior tenant for life. The dis- 
 tinction, which we have noticed, between a 
 condition, and what is commonly termed a 
 conditional limitation, is commented upon in 
 some MS. observations of the late Mr. Ser- 
 jeant Hill, in the margin of the case of Page 
 v. Hay ward in the second volume of his Sal- 
 keld's Reports ; and they are so applicable to 
 the present question, and appear to us so well 
 founded, that we annex a copy of them to our 
 opinion. 
 
 The distinction in the case of Page v. Hay- 
 ward, is also ad verted to in Mr. Sugden's Trea- 
 tise on Powers, p. 78. second edition, where 
 it is suggested, that the estates created under 
 the power may be considered & charge upon 
 the estate tail; which seems another expres- 
 sion for the construction we have adopted. 
 
 Mr. Sugden then states several cases, in 
 which, under a contrary construction, every 
 purpose of the power might be defeated : and 
 many others might be added. 
 
 If we are mistaken in considering it clear, 
 that the power is not destroyed by the reco- 
 very, there can be no doubt, that a very great 
 number of titles will be open to the objec- 
 tion; as the doctrine, that powers annexed 
 to the estate of a tenant for life may be kept
 
 Appendix, No. VII. 429 
 
 alive by his reserving a reversion, in convey- Appendix, 
 
 ,, ., No. VII. 
 
 ing to the tenant to the praecipe, was an esta- 
 blished one in the time of Mr. Booth, and it 
 has since been acted upon by the most emi- 
 nent conveyancers. We believe we might say, 
 that the practice has been universal. 
 
 We have seen MS. precedents of drafts 
 settled by Mr. Booth of the deeds executed 
 for barring an entail of estates, in which the 
 marchioness G., then the wife of the earl of 
 H., was tenant for life, with remainder to 
 her first and other sons successively in tail, 
 with remainderto herfirstand other daughters 
 successively in tail; and for resettling the 
 estate on the marriage of lady Annabella G., 
 the eldest daughter of the earl of H., by the 
 marchioness, the deed making the tenant to 
 the praecipe, contains the following recital; 
 " And whereas there is not any issue male of 
 "the said J. marchioness G., and therefore 
 " the said P. earl of H., J. marchioness G., 
 " and the said lady Annabella G., who has 
 u attained her age of twenty-one years as 
 " hereinbefore is mentioned, are desirous of 
 " suffering common recoveries of the said 
 " manors, &c. and of barring the estate tail, so 
 " vested in the said lady Annabella G., and all 
 " the remainders over, and the reversion and 
 " remainder in fee, which was so limited to 
 " the right heirs of the said Henry late duke 
 "of K.; but without prejudicing or disturb-
 
 No. VII. 
 
 430 Appendix, No. VII. 
 
 Appendix, 
 
 " ing any of the precedent uses, estates, or 
 " charges in and by the said indenture of the 
 " 2(Jth June 1736, and the said will, &c. or 
 " any of them, expressly or by reference, 
 " limited, created, or declared, prior to or 
 " before the said remainder or limitation, to 
 " the first daughter of the body of the said 
 " J. marchioness G. by the said P. earl of H. 
 " begotten, or prior to or before the said re- 
 " mainder or limitation to the said lady 
 " Annabella G., and the heirs of her body 
 "lawfully issuing, and without prejudicing 
 " or disturbing any of the powers or pri- 
 vileges to the said precedent uses or 
 " estates annexed or belonging ; all which 
 " precedent uses, estates, powers, and privi- 
 " leges, are intended to be corroborated and 
 "confirmed by the common recoveries so in- 
 " tended to be suffered." And by the ope- 
 rative part of the deed, " in order to bar, &c 
 "all estates tail, &c, but without prejudi- 
 " cing or disturbing the said uses, estates, and 
 "charges, prior, &c. or any of the powers or 
 " privileges to the precedent uses or estates, 
 " or any of them, annexed or belonging, and 
 " to the intent, that the said manors, &c. 
 "but subject and without prejudice to the 
 " uses, powers, &c. [using the same words as 
 "before], may be limited to the uses, &c. 
 "after mentioned;' the earl and mar- 
 chioness, and lady A., join in conveying by 
 lease and release to the tenant to the praecipe,
 
 Appendix, No .VII. 431 
 
 during the joint lives of himself and the mar- Appendix, 
 
 . . , , ','. , No. VII. 
 
 chioness; and the recovery is directed to 
 enure, — •" in the first place, for corroborating, 
 " strengthening, and confirming the said uses, 
 " estates, &c. precedentto, or before, thelimit- 
 " ation to the first daughter of the body of the 
 " said marchioness, and the heirs of her body 
 " issuing, and for corroborating, strengthen- 
 " ing and confirming the several powers and 
 "privileges to the same precedent uses, 
 " estates, &c. belonging or annexed ; and 
 " after the determination of the said several 
 " precedent uses, &c, and subject to the said 
 " preceding uses, &c, to such uses as the 
 " said earl and marchioness and lady Anna- 
 " bella should appoint, and in default of 
 " appointment to the uses therein men- 
 tioned." 
 
 By a deed of appointment executed after 
 the recovery was suffered, the estates were 
 resettled, pursuant to articles on the marriage 
 of lady Annabella with lord P. By this deed, 
 after reciting the deed to make the tenant to 
 the praecipe, and the marriage articles, the 
 earl and marchioness, and lady Annabella, 
 then lady P., u in exercise of their power, 
 " appoint that all the said manors, &c. shall, 
 " from and after the decease of the said mar- 
 " chioness, and after failure of issue male of 
 "her body (but nevertheless, without pre- 
 judicing or disturbing any of the powers
 
 432 Appendix, No. VII. 
 
 Appendix, "or privileges to the said precedent uses or 
 
 No. VII. i i 1 • \ • t 
 
 " estates annexed belonging) remain and 
 "continue to the uses therein mentioned." 
 
 We have given a full statement of the 
 above precedents, on account of the great 
 authority of Mr. Booth on all questions in 
 conveyancing; and we must observe, that 
 the principles on which these deeds were 
 grounded, seem to have been adopted as a 
 kind of text law by modern writers. They 
 are stated and commented upon by Mr. But- 
 ler, in his notes to Co. Littleton, 203. b. He 
 observes, "This continues the old reversion 
 " in the grantor or bargainor, and preserves 
 " the powers relating to his original estate." 
 Mr. Cruise, in his Digest, 4. vol. p. 335. gives 
 the same precept, as to the mode of suffering 
 recoveries, " in order to preserve the powers 
 " of the tenant for life, by leaving the rever- 
 sion in him." Mr. Preston also, in his 
 Treatise on Conveyancing, 1. 108. recom- 
 mends that the conveyance to the tenant to 
 the praecipe should be confined to the joint 
 lives of the party and tenant, so as to leave 
 a reversion in the owner of the particular 
 estate. " This mode of limitation," he says, 
 " will not only guard against this merger of 
 " the estate of freehold, but will, in the most 
 " effectual manner, guard against the destruc- 
 " tion of all powers, &c, since they will re-
 
 Appendix, No. VII. 433 
 
 w main annexed to the reversion." The prac- Appendix, 
 
 i -ii m* ci l l • N0..VII. 
 
 tice is also noticed by Mr. kugden in his 
 Treatise on Powers, 55. second edition : " So 
 " where he (the tenant for life) joins in a 
 " common recovery, the universal practice is, 
 " to convey only during the joint lives of 
 " himself and the tenant to the praecipe : and 
 " it is also customary in these cases to insert 
 " an express declaration, that the conveyance 
 u shall not affect, but, on the contrary, be 
 " subservient to, the power." And, after 
 noticing that these precautions apply to 
 powers in gross, as well as to powers appen- 
 dant, he adds, " And, as the grantee takes 
 " the estate subject to the power, no fraud 
 " is committed on him ; and the power, there- 
 " fore, may, it should seem, be executed in 
 " the same manner, as if the donee had not 
 " parted with any portion of his estate." 
 
 We refer to Mr. Booth and the writers we 
 have named, in order to show, what infinite 
 danger would happen to titles, if the doctrine 
 and practice so sanctioned should uow be 
 considered erroneous, and that it is not on 
 slight grounds, that it ought to be impugned. 
 We are not aware of any recent decision, 
 which has altered the law on the subject; 
 and we must say, that we entertain no doubt 
 on the point. 
 
 vol. 1. f f
 
 434 Appendix, No. VII. 
 
 Appendix, We are also of opinion, that the deed of 
 
 No. VII. , A ,. , f 
 
 re-settles nent did not operate as an extin- 
 guishment of the power. 
 
 The principal objection is, that the trus- 
 tees are made to convey the legal estate 
 vested in them. In answer to this, it is to he 
 observed, that the conveyance was by lease 
 and release, and that the use was relimited to 
 the trustees for the same estate ; so that they 
 were in of the old use ; and consequently the 
 power could not be affected by their convey- 
 ance. We consider this so clear, as not to 
 require an authority. Yet we cannot forbear 
 observing, that Mr. Sugden, in his Treatise 
 on Powers, 59., has suggested a similar mode 
 of removing an objection, which it appears 
 had been made to a title before him. His 
 words are, " But in order to obviate all diffi- 
 " culty, it was recommended, that A. should 
 " appoint the estate to herself for life. She 
 " would then be in of her old use, and might 
 '* well execute her power. It would be the 
 " mere case of a conveyance of the life 
 " estate, by an innocent conveyance to the 
 " releasee, to the use of herself for life. The 
 " use she would take under the conveyance, 
 " would, in no respect, be different from the 
 " use, which was before vested in her, and 
 " the express limitation of the use would not 
 " render it a new one."
 
 Appendix, No. VII. 435 
 
 If this were otherwise, still we think, that Appendix 
 
 • i i • No.VII. 
 
 the power was not extinguished, on the prin- 
 ciple, that although appendant, with refer- 
 ence to the estate of the trustees, it is in 
 gross or collateral, so far as concerns the 
 other uses of the settlement. The case of 
 Slater v. Edwards, in Hardress, is a direct 
 authority, that notwithstanding an alienation 
 of the whole estate of the donee of the 
 power, by an innocent conveyance, the power 
 may be exercised, so as to overreach estates, 
 as to which it is collateral, although it will 
 have no effect to the extent of the estate con- 
 veyed by the donee. In the cases, where an 
 alienation by the donee of the power of his 
 whole estate by an innocent conveyance, has 
 been held to destroy or extinguish the power, 
 the nature of the power, or of the interest 
 conveyed, has been such, as to render it im- 
 possible, that the power should afterwards be 
 exercised without defeating the parties' own 
 conveyance ; as a power for tenant for life to 
 grant leases in possession, where no leases 
 could be granted, without their commencing 
 during the life of the donee; or a limitation 
 to such uses as A. shall appoint, and, in de- 
 fault of appointment to A. and his heirs, 
 where the whole fee passes by the conveyance. 
 
 It does not appear to us, that any infer- 
 ence arises from the insertion in the settle- 
 ment of a new pow r er of sale and exchange, 
 f f 2
 
 No. VII. 
 
 43G Appendu, No. Vil. 
 
 Appendix, that the old one was intended to be aban- 
 doned. The new power may have been in- 
 tended to operate, whenever, by the determi- 
 nation of the preceding estates, under the 
 original settlement or otherwise, there should 
 be no necessity to resort to the old power. 
 But we do not consider it necessary to reason 
 upon inference of intention, in a case where 
 express words are used, denoting that the uses 
 created by the new settlement, are to be sub- 
 ject to the powers in the original settlement, 
 and where the objects proposed could not 
 otherwise be effected. With respect to the 
 objection, that according to the construction 
 contended for, the conveyance was to be sub- 
 ject to the very estates, which were to be 
 conveyed by it ; it is sufficient to say, that as 
 to these estates no conveyance was intended, 
 the assurance being meant only by way of 
 corroboration, as the deed expresses. 
 
 We recommend, that the points at issue 
 should be tried in an action for the deposit. 
 (Signed) F. W. Sanders. 
 Lewis Duval. 
 Lincoln's Inn, Wth April 1816. 
 
 MSS. note of Mr. Sergeant Hill, on the 
 case of Page v. Hay ward. 
 
 " It is contrary to every principle of law 
 " and justice, that a recovery suffered by 
 " tenant in tail should discharge the estate
 
 Appendix, No. VII. 437 
 
 " tail of any condition, or conditional limi- Appendix, 
 
 ., . . No. VII. 
 
 " tation, to which the estate tan was subject; 
 " but it is clear, that if there be a tenant in 
 " tail, with remainder over on a contingency, 
 " a recovery by tenant in tail will bar the 
 " contingent remainder; but the recoveror 
 " comes in under the tenant in tail, and 
 " subject to all charges, to which the estate 
 " tail was subject; and there is no colour for 
 " the opinion of Hale, as reported in 1st 
 " Mod. Ill, that a recovery by tenant in tail 
 " will destroy any condition, to which the 
 " estate tail was subject. Yet that mistake 
 " is followed here by Holt, and in the 2d of 
 " Atk. 591, by lord Hardvvicke. What is 
 " said in 1 Mod. Ill, that a recovery by te- 
 " nant in tail shall bear collateral conditions 
 " though annexed to the estate tail, as they 
 " are in the cases there put, was extra-judi- 
 cial; for as observed 1 Mod. 110, the 
 " question there arose about a charge subse- 
 " quent to the estate tail; and lord Hale's 
 " opinion in page 111 is contrary to his rea- 
 " soiling in page 109. 
 
 " N. B. Since the above was written, it 
 " seems clear on further consideration 11 , that 
 " where an estate is devised to one in fee- 
 " simple, upon condition, and in case the 
 
 a These words are inter- added some time after the 
 lined in the Sergeant's own note was written, 
 hand, and probably were 
 
 F F .'}
 
 438 Appendu, No. VI i. 
 
 Appendix, " condition be not performed, then to an- 
 iS other; this, if within due bounds, will be 
 " o-ood as an executory devise, and therefore 
 " not barable by recovery; because no ex- 
 " ecutory devise can be barred by recovery 
 " (at least not unless the person to whom the 
 " executory devise is made is vouched in the 
 " recovery); yet if in such case, the first de- 
 " vise be not a fee-simple, but a fee-tail, then 
 " the devise over will operate, not by way of 
 " executory devise, but as a contingent re- 
 " mainder ; and consequently a recovery suf- 
 " fered by tenant in tail before the condition, 
 " or contingency, happens on which the re- 
 u mainder is to take effect, must extinguish 
 " it, because a remainder cannot, though an 
 " executory devise may, and always does, 
 " subsist without a particular estate to sup- 
 " port it; but where lands are devised in tail 
 " on condition, and if the condition be 
 u broken, then to B. ; this, though called a 
 " condition, is by reason of the devise over 
 " a limitation, or, as it is frequently called, a 
 *' conditional limitation, and the devise over 
 " being limited after a particular estate (viz.) 
 " an estate tail which is capable of support- 
 * ing it, as a contingent remainder, it there- 
 " fore operates as a contingent remainder, 
 " and therefore a recovery suffered (before 
 " breach of condition) by the tenant in tail 
 " must destroy the contingent remainder by 
 " destroying the particular estate, which sup-
 
 Appendix, No. VIII. 439 
 
 *' ported it before the contingency happened ; Appendix, 
 
 " that is, before the remainder vested ; for it 
 
 " is a clear rule, that every remainder must 
 
 u vest during the particular estate, or eo 
 
 " instante that it determines, or otherwise it 
 
 " can never vest at all." 
 
 APPENDIX, No. VIII. 
 Power to appoint new Trustees. 
 When new trustees are appointed under Appendix, 
 
 i 1.11 No. VIII. 
 
 a power in the place of deceased or retiring 
 trustees, with the single view of exercising 
 powers of sale, exchange, or partition, there 
 can be no doubt, that by the mere effect of 
 the appointment, the new trustees may be 
 qualified to exercise such powers. But it is 
 usual in all settlements to provide upon each 
 nomination, that every legal interest or estate 
 vested in the deceased or retiring trustees, 
 should be conveyed in such manner, that it 
 may vest in the newly appointed trustees: for 
 in the generality of settlements terms of years 
 are created, and estates are vested in trustees 
 to preserve contingent remainders, or estates 
 for other purposes may be vested in the 
 trustees, who are to exercise the powers of 
 sale, exchange, or partition, which it would 
 be proper to have vested in the new trus- 
 tees. Powers therefore, of this kind, pro-
 
 410 Appendix, No. VIII. 
 
 Appendix, vide, that when, and so often, as any new 
 
 No. VIII. ' . •* 
 
 trustee or trustees shall be nominated and 
 appointed under the power, all the trust es- 
 tate and premises, the trustee or trustees of 
 which shall die, desire to be discharged, or 
 refuse or become incapable to act, shall be 
 thereupon conveyed, transferred, and assured 
 in such manner, that the same shall be ef- 
 fectually vested in the newly appointed 
 trustees to, for, and upon, the same uses, 
 trusts, and purposes, and under the same 
 powers, as were before limited by the settle- 
 ment ; and hence where the deceased or re- 
 tiring trustees, to whom powers of exchange, 
 sale, or partition have been reserved, are 
 also releasees, or grantees to uses, it has been 
 argued, although I think erroneously, that 
 to enable the newly appointed trustees to ex- 
 ercise powers of sale, exchange, or partition, 
 two circumstances are necessary; first, that 
 the new trustees should be duly appointed; 
 and secondly, that the trust estates should be 
 conveyed to them and their heirs to the uses 
 of the settlement, so as to give them a seisin 
 to uses. In order to obviate the force of this 
 argument, if it has any, the provisions no- 
 ticed in the following form of a power may 
 be adopted : 
 
 Provided always, and it is hereby agreed 
 and declared, that in case the trustees in and 
 by these presents nominated aud appointed
 
 Appendix, No. VIII. 441 
 
 or any of them, or any succeeding, or other Appendix, 
 trustees or trustee of said trust estate and 
 premises, to be nominated as hereinafter 
 mentioned, or their, or any of their heirs, 
 executors, or administrators, shall happen to 
 die, or be desirous to be discharged of and 
 from, or refuse or become incapable to act in, 
 the trusts or powers hereinbefore expressed, 
 declared, and contained, before the same trusts 
 and powers shall have been fully performed, 
 exercised, or satisfied, then and so often as the 
 same shall happen, it shall and may be lawful 
 for the said A. B. and C. D. during their 
 joint lives, and after the decease of either of 
 them, to and for the survivor of them, during 
 his or her life, and after the decease of such 
 survivor, then to and for the surviving, or 
 continuing, or other trustee or trustees of the 
 premises, the trustee or trustees of which 
 shall so die, desire to be discharged, or refuse, 
 or become incapable to act as aforesaid, 
 by any deed or writing under their, his, or 
 her hands and seals, or hand and seal, to 
 nominate, substitute, and appoint any other 
 person or persons to be a trustee or trustees in 
 the place and stead of such trustees or trustee 
 so dying, desiring to be discharged, or refus- 
 ing, or becoming incapable to act as afore- 
 said ; and that when and so often as any such 
 new trustees or trustee shall be nominated 
 and appointed as aforesaid, all the said trust 
 estate and premises, the trustee or trustees
 
 442 Appendix, No. VIII. 
 
 Appendix, whereof shall so die, desire to be discharged, 
 
 No. VIII. 
 
 or refuse, or become incapable to act as afore- 
 said, shall be thereupon with all convenient 
 speed conveyed, transferred, assigned, and 
 assured respectively (according to the uature 
 and tenure thereof) in such sort and manner, 
 and so that the same shall and may be le- 
 gally and effectually vested in the newly ap- 
 pointed trustee or trustees jointly with such 
 of the former trustees, as shall be willing 
 and capable to act; or in case there shall be 
 no continuing former trustee, then in such 
 newly appointed trustee or trustees only ; to, 
 for, and upon the uses, trusts, intents, and 
 purposes hereinbefore limited, expressed, de- 
 clared, and contained of and concerning the 
 same ; and that the neiv trustee or trustees, 
 who shall be appointed in the room or stead of 
 the said E. P. and G. H. or either of them as 
 aforesaid, either alone or jointly with such of 
 them the said E. P. and G. H. as shall con- 
 tinue to act, shall and may, either before or 
 after any such conveyance or assurance as 
 aforesaid, exercise all or any of the powers or 
 authorities hereinbefore reserved or given to the 
 said E. P. and G. H. and the survivor of them, 
 and the heirs of such survivor as aforesaid*; 
 
 a Iustead of ihe words in aforesaid, relating to the 
 
 italicks, the following clause estates hereinbefore limited 
 
 may be inserted: in strict settlement, it shall 
 
 And that to enable any not be necessary to invest 
 
 such new trustee or trustees him or them with such seisin 
 
 to exerciseany of the powers or possibility of seisin to
 
 Appendix, No. VIII. 
 
 and that every such new trustee shall aud 
 may in all things, and in all respects, act 
 aud assist in the management, carrying on, 
 and executing of the trusts, to which he 
 
 443 
 
 Appendix, 
 No. VIII. 
 
 uses of and in such estates, 
 or any of them, as may, or 
 shall at any time, be vested, 
 or have been vested, in the 
 trustee or trustees, in whose 
 room such new trustee or 
 trustees shall be appointed 
 as aforesaid. 
 
 Or, in lieu of the above, 
 the following form may be 
 adopted. 
 
 And that in order, that 
 such hereditaments may be 
 legally and effectually con- 
 veyed to, and vested in, 
 such new trustee or trustees 
 jointly with such former 
 trustees or trustee, or in 
 such new trustees or trustee 
 only as occasion shall re- 
 quire, it shall be lawful for 
 the person or persons nomi- 
 nating, substituting, or ap- 
 pointing such new trustee 
 or trustees, under, and by 
 virtue of the power and 
 authority hereinbefore for 
 that purpose contained, by 
 any deed or deeds, instru- 
 ment or instruments, in 
 writing, to be by him or 
 them sealed and delivered 
 in the presence of, and at- 
 tested by, two or more cre- 
 dible witnesses to revoke, 
 determine, and make void 
 the uses, trusts, powers, and 
 agreements, in and by these 
 presents limited, created, 
 declared, and expressed, of 
 and concerning the heredita- 
 
 ments hereinbefore limited 
 or intended to be limited in 
 strict settlement, or any of 
 them, or any part thereof, 
 and by the sameor any other 
 deed ordeeds,instrumeutor 
 instruments, in writing, to be 
 by him or them sealed, deli- 
 vered, and attested as afore- 
 said, to limit, declare, di- 
 rect, or appoint any other 
 use or uses, estate or es- 
 tates, trust or trusts, of or 
 concerning the heredita- 
 ments, or any of them, or 
 any part or parts thereof, 
 which it shall be thought 
 necessary or expedient, to 
 limit, declare, direct, or ap- 
 point, for the purpose of 
 conveying or vesting the 
 same premises to or in such 
 new trustee or trustees 
 jointly or solely as occasion 
 may require. 
 
 If the latter form be 
 adopted, two instruments 
 will be necessary to exercise 
 the power ; first, a deed 
 appointing the new trustee, 
 aud revokiug the uses of 
 the settlement, and appoint- 
 ing the settled estate to A. 
 B. and his heirs, to the in- 
 tent, that he should recon- 
 vey the same to the old and 
 newtrustees, and their heirs, 
 to the subsisting uses of the 
 settlement ; and secondly, a 
 reconveyance accordingly 
 by A. B.
 
 444 Appendix, iVo.VHI. 
 
 Appendix, shall be so appointed, as fully and effec- 
 VIIL tually, and with the same power and powers, 
 authority and authorities, as if such new 
 trustee had been originally, by these presents, 
 nominated and appointed, and as the said 
 trustees of the same trust estates and pre- 
 mises named in these presents are, or would 
 be, enabled to do, or might, or could have 
 done, under, or by virtue of the same, or any 
 clause, power, or proviso hereinbefore con- 
 tained or implied ; or otherwise, as if such 
 original trustees had been then living and 
 continuing to act under, or in execution of 
 the trusts, powers, and authorities reposed in, 
 or reserved to, them in and by these presents. 
 
 END OF VOL. I.
 
 AN 
 
 ESSAY 
 
 ON 
 
 USES AND TRUSTS, 
 
 AND ON THE 
 
 Jlaiuit antr Operation 
 
 OF 
 
 CONVEYANCES AT COMMON LAW, 
 
 AND OF THOSE, WHICH DERIVE THEIR EFFECT FROM 
 
 THE STATUTE OF USES. 
 
 FOURTH EDITION, 
 
 REVISED, CORRECTED, AND CONSIDERABLY ENLARGED. 
 
 BY FRANCIS WILLIAMS SANDERS, ESQ. 
 
 OF LINCOLN'S INN, BARRISTER. 
 
 IN TWO VOLUMES. 
 VOL. II. 
 
 OF CONVEYANCES AT COMMON LAW, 
 AND THOSE WHICH DERIVE THEIR EFFECT FROM THE STATUTE 
 
 OF USES. 
 
 LONDON: 
 
 PRINTED FOR W. WALKER, 
 
 No. 190, opposite st. Clement's church, strand. 
 
 1824.
 
 Printed by S. Gosnell, Little Queen Street, London.
 
 TABLE OF CONTENTS 
 
 OF THE 
 
 SECOND VOLUME. 
 
 Feoffment. 
 
 Definition, 1. 
 Antiquity, ibid. 
 Introduction of the charter, 3. 
 Livery of seisin, 4. 
 
 in deed, ibid. 
 
 by attorney, 5. 
 in law, 6. 
 Livery of lands lying in different counties, 7. 
 
 creating an estate of freehold to commence in fu- 
 
 turo, 7. 
 of lands in the possession of a lessee, &c. 9. 
 correcting the limitations contained in the deed, 10. 
 The particular operation of the Feoffment : 
 
 In destroying contingent remainders, 11. 
 In destroying possibilities, 12. 
 
 Powers in gross and appendant, 
 rents, commons, &C. 
 In creating an estate of freehold by disseisin, ibid. 
 A 2
 
 iv CONTENTS 6f THE 
 
 GRANT. 
 
 Description, 25. 
 
 The several incorporeal hereditaments of a grantable quality, 
 26. 
 
 Common, ibid. 
 
 Rents, 28. 
 
 Remainders and reversions, 29. 
 
 Interesse termini, ibid. 
 
 Emblements, ibid. 
 
 Tithes, 30. 
 
 Advowsons, ibid. 
 
 Corrody, services, &c. 31. 
 
 Charters, ibid. 
 
 Offices of trust, ibid. 
 
 Choses in action, 32. 
 As to attornment, and the effect of the Statutes 27 Hen. 8. 
 c. 16. and 4 Ann. c. 16. s. 9. upon the Conveyance by 
 Grant, ibid. 
 As to the operative words of a Grant, 39. 
 As to the operation of a Grant by tenant in tail, 41. 
 
 BARGAIN and SALE. 
 
 Description, 43. 
 
 The nature of the possession acquired by the Bargainee 
 
 under the statute, 45. 
 The consideration, 46. 
 The operative words, 49. 
 Who may convey by Bargain and Sale, 50. 
 What property may be conveyed by it, 51. 
 No use can be limited upon the estate of the Bargainee, nor 
 
 any future use out of the seisin of the Bargainor, 52. 
 The operation of a Bargain and Sale by Tenant in tail or for 
 
 life, 54. 
 Ceremonies required by the statute of inrolments, ibid. 
 The relation of the inrolment to the delivery, 55. 
 To what places the act of inrolments does not extend, 58.
 
 SECOND VOLUME. 
 
 LEASE and RELEASE. 
 
 Description of the Release at common law, GO. 
 Introduction and nature of the Conveyance by Lease and 
 
 Release, 61. 
 It operates by transmutation of possession, G3. 
 Who may convey by it, 64. 
 
 Operation of it when made by tenant in tail or for life, ibid, 
 Whether there can be a resulting Use upon it, ibid. 
 It can effectuate an exchange or partition without an actual 
 
 entry, 69. 
 
 APPOINTMENT. 
 
 Description, 71. 
 
 The nature of the estate transferred by the Appointment, 
 ibid. 
 
 As to the necessity of reciting the power, 72. 
 
 Of the instrument creating the power, 73. 
 
 Of the relation of the Appointment to the original Con- 
 veyance, 74. 
 
 Of Appointments to unborn children, 77. 
 
 COVENANT to stand seised to Uses : 
 Description, 79. 
 Operative words, ibid. 
 Consideration, 80. 
 
 As to the estate of the covenantor, 83. 
 The operation of it when made by tenant in tail or for 
 life, 84. 
 
 A 3
 
 CONTENTS 01 THE 
 
 preceUott^* 
 
 ;jf lOtuttlttt with general warranty, and an appointment of an at- 
 torney to deliver seisin, 85. 
 
 The form of a modern Feoffment, with covenants for the title, and a 
 covenant to levy a fine, 89. 
 
 (Sfrank 
 
 Of a rent-charge during the life of the Grantor, with a de- 
 mise to a Trustee for securing the same, 99. 
 Recital of a will, ibid. 
 
 the contract for the purchase, 100. 
 a warant of attorney, 101. 
 The Grant, 102. 
 Habendum, 103. 
 Power to distrain, 104. 
 Power of entry, 106. 
 
 Covenant by the Grantor to pay the annuity, 107. 
 Demise to the Trustee, 108. 
 Habendum for 99 years, 109. 
 
 In trust for the Grantor until default, 
 
 110. 
 After default in trust to raise the arrears, 
 ibid. 
 Proviso for avoiding the term, 112. 
 The Grantor covenants, 
 
 That he has power of charging the pre- 
 mises, 113. 
 To demise the same, ibid. 
 That they are and shall be free from in- 
 cumbrances, 114. 
 And for further assurance, 115.
 
 SECOND VOLUMH. *H 
 
 Recital of an agreement to enter up judgment 
 
 upon the warrant of attorney. 116. 
 Declaration, that the judgment is intended to he 
 
 a collateral security for the payment of the 
 
 annuity, ibid. 
 Covenant, that the Grantor shall be at liberty to 
 
 re-purchase the anuity, 119. 
 Grant of an advowson, 122. 
 
 bargain ami £ale* 
 
 To make a tenant to the praecipe, 128. 
 
 Eease ana $UUase, 
 
 BARGAIN AND SALE FOR A YEAR, 134. 
 RELEASE IN FEE TO A PURCHASER AND HIS 
 TRUSTEE TO PREVENT DOWER, 137. 
 
 Recital of the contract, ibid. 
 The Release, 138. 
 
 Habendum to the purchaser and his heirs, 139. 
 To such uses as the purchaser shall ap- 
 point, and in default thereof, 140. 
 To the use of the purchaser for life, re- 
 mainder, 
 To the use of the trustee and his heirs, 
 duriug the purchaser's life, with re- 
 mainder. 
 To the use of the purchaser in fee, 141. 
 Covenants for the title, 141. 
 Covenant to produce title deeds. 
 
 RELEASE IN FEE FOR THE PURPOSE OF SET 
 TLING ESTATES PREVIOUSLY TO A MAR- 
 RIAGE, 148. 
 
 Recital of the intended marriage, ibid. 
 The Release, 148. 
 A 4
 
 CONTENTS OF THE 
 
 iPreretrenta* 
 
 Habendum in fee to the following Uses, 150. 
 
 To the Use of the intended husband until 
 
 marriage, and afterwards, (151.) 
 To the use of trustees for 99 years, ibid. 
 With remainder to the intended husband 
 
 for life, ibid.; 
 Remainder to the use of trustees to preserve 
 
 the contingent remainders, 152. 
 Remainder to the use and intent, that the 
 intended wife may receive a rent- 
 charge in bar of dower, ibid. ; 
 Power of distress, 153. ; 
 
 and entry, 155.; 
 With remainder to the use of trustees for 
 
 500 years, 156. ; 
 Remainder to the use of the first son in 
 
 tail male, ibid.; 
 Remainder to the use of the second and 
 
 other sons in tail male, 157. ; 
 Remainder to the use of the daughters as 
 tenants in common in tail general, ibid. 
 Cross Remainders between them, 
 ibid. 
 Remainder to the use of the intended hus- 
 band in fee, 158. 
 Trusts declared of the term of 99 years, ibid. 
 
 In trust, for securing pin-money for the 
 wife, 159. 
 
 Provision that no more than two 
 years arrears of pin-money shall 
 be recoverable, 161. 
 Cesser of the term of 99 years, ibid. 
 Trusts declared of the term of 500 years, 162. 
 
 In trust, in the first place, for secur- 
 ing the rent-charge limited to the 
 wife, 163.
 
 SECOND VOLUME. ix 
 
 In trust, in the next place, for raising 
 portions for younger children, 
 164. 
 
 Provision in case of a partial 
 appointment among them, 
 168. 
 Provision for maintenance, 169. 
 for survivorship, 170. 
 Power to advance younger son9, 172. 
 In trust to permit the persons next in re- 
 mainder to receive the overplus of the 
 rents, 173. 
 No sale to be made until a portion shall be- 
 come payable, 174. 
 Money advanced by the father in his life- 
 time to be considered as part of the 
 portion or portions, ibid. 
 Cesser of the term of 500 years, 175. 
 Power enabling the husband to make leases, 176. 
 Of sale and exchange, 178. 
 Of appointing new trustees, 184. 
 Clauses of indemnity to the trustees, 186. 
 Covenants for the title, 188. 
 EXTRACTS FROM A DEED BY WAY OF 
 RELEASE PREPARED BY THE LATE MR. 
 BOOTH, AND ALLUDED TO IN THE OPI- 
 NION STATED IN APPENDIX 7. 1st Vol. 
 193. 
 PARTITION BY LEASE AND RELEASE, 208. 
 
 3ppo(ntmntt. 
 
 To a purchaser in fee, 222. 
 
 Recital of a conveyance to such uses, as the ven- 
 dor shall appoint, 222. 
 of the contract, 223. 
 The Appointment and Release, 224, 225. 
 Habendum, 227.
 
 Appointment 
 
 CONTENTS OF THE 
 
 Urecetrenta. 
 
 Covenant by the trustee against his own acts, 227. 
 Covenant for the title, ibid. 
 TO USES CN STRICT SETTLEMENT PREVIOUSLY 
 TO, AND IN CONSIDERATION OF, A MAR- 
 RIAGE, 232, 
 
 Recital of a conveyance to such uses as the father 
 and son, the intended husband, shall appoint, 
 ibid. 
 
 of the intended marriage, 233. 
 The Appointment, 234. 
 The Grant and Release, 235. 
 Habendum to Uses, 236. 
 
 Until the marriage, to the uses previously 
 
 existing, 237. 
 Afterwards to the intent, that the intend- 
 ed husband may receive a rent- 
 charge during the joint lives of him- 
 self and the father, ibid. 
 And to the intent, that the wife may re- 
 ceive a rent-charge, in bar of dower 
 for her life, in case she shall survive 
 her husband, 238. 
 Powers of distress and entry, 239. 
 Remainder, subject to the rents-charge 
 and powers to the use of trustees 
 for 200 years, 242. 
 Remainder to the use of the father for 
 
 life, 243. 
 Remainder to the use of trustees, to pre- 
 serve contingent uses, ibid. 
 Remainder to the use of the intended 
 
 husband for life, ibid. 
 Remainder to the use of trustees to pre- 
 serve contingent uses, 244.
 
 appointment. 
 
 SECOND VOLUME. xi 
 
 Remainder to the use of trustees for 500 
 
 years, 244. 
 Remainder to the use of the first son of 
 the intended marriage in tail male, 
 245. 
 Remainder to the use of the second and 
 other sons of the said marriage in tail 
 male, 245. 
 Remainder to the use of the first son by 
 
 any other wife in tail male, ibid. . 
 Remainder to the use of the second and 
 other sons in tail male by any other 
 wife, 246. 
 Remainder to the use of the daughters of 
 the intended marriage, as tenants in 
 common in tail general, ibid. 
 
 Cross Remainders between them, 
 ibid. 
 Remainder to the use of daughters by 
 any other marriage, as tenants in 
 common in tail general, 247. 
 Cross Remainders between them, 
 247. 
 Remainder to the use of the father in 
 fee, 248. 
 Trusts declared of the term of 200 years, ibid. 
 
 In trust, in the first place for securing 
 
 the two rents-charge, 249. 
 In trust, in the next place, in case the in- 
 tended husband shall die in the fa- 
 ther's lifetime, to raise maintenance 
 for the children of the marriage, 250. 
 In trust, to permit the person next in re- 
 mainder to receive the overplus of 
 the rents, 252.
 
 xii CONTENTS OF THE SECOND VOLUME. 
 
 Appointment 
 
 tfrmtrenta* 
 
 Cesser of the term, 253. 
 
 Trusts declared of the term of 500 years, 254. 
 
 In trust, for raising portions for younger 
 children and daughters, ibid. 
 
 No mortgage or sale to be made 
 in the father's lifetime, 258. 
 Provision incase of a partial ap- 
 pointment, 258. 
 
 for maintenance, 259. 
 
 for survivorship, 261. 
 
 Power of advancing younger 
 
 sons, 262. 
 
 In trust, to permit the persons next in 
 
 remainder to receive the overplus of 
 
 the rents, 263. 
 
 Provision, that money advanced 
 by the husband shall go in 
 part of the portions, 264. 
 Cesser of the term of 500 years, 265. 
 Power enabling the husband to jointure a future 
 wife, 266. 
 
 of leasing, 268. 
 Clauses of indemnity to the trustees, 270. 
 Covenants for the title, 271. 
 APPOINTMENT BY REFERENCE TO USES OF 
 A SUBSISTING SETTLEMENT, WITH THE 
 ADDITION OF NEW USES AND A PRO- 
 VISION FOR MAKING THE NEW USES 
 SUBJECT TO THE POWERS CREATED BY 
 REFERENCE, 276.
 
 Names of CASES cited in the Second Volume. 
 
 Allekton v. Eden, 307. 
 AIsop and Bellingham, 57. 
 Andrews v. Emmot, 73. 
 Archer's Case, 12. 
 Atkins and Shields, 23. 
 Atkyns v. Horde, 18. 20. 
 Aynsley v. Wordsworth, 310. 
 
 Baldwin and Flower, 55. 
 
 Baley v. University of Oxford, 31. 
 
 Barker's (Sir Robert) Case, 57. 
 
 Barker v. Keat, 46. 50. 
 
 Barker and Lade, 28. 
 
 Barrington's (Sir Francis) Case, 30. 
 
 Baugh and Blundel, 19. 
 
 Bedell's Case, 49. 81. 
 
 Bellingham v. Alsop, 57. 
 
 Bennet and Hughes, 323. 
 
 Blundel v. Baugh, 19. 
 
 Boins and Holland, 50, 51. 
 
 Bois and Darly, 58. 
 
 Bowes and Perry, 57. 
 
 Bracebridge's Case, 14. 
 
 Bradshaw's Case, 114. 
 
 Brandlyn v. Orde, 23. 
 
 Brown v. Jones, 80. 
 
 Browning v. Wright, 322. 
 
 Buckley and Hare, 30. 
 
 Bullerv. Cheverton, 306. 
 
 Camphell v. Sandys, 307, Note. 
 Carter v. Madgwick, 315. 
 Cheverton and Bullcr, 306. 
 Chibborne's Case, 58. 
 
 Chudleigh's Case, 51. 
 Churchman awtf Osborn, 46. 
 Clark and Machili, 54. 
 Clarkson v. Hanway, 48. 
 Cooper and Turnman, 319. 
 Cray ford v. Crayford, 323. 
 Cromwell's Case, 28. 
 Crossing v. Scudamore, 46. 80. 
 Crouch v, Martin, 32. 
 
 Daniel v. Hertford, 26. 
 
 Darly v. Bois, 58. 
 
 Davis v. Duke of Marlborough, 32. 
 
 Day and Spooner, 27. 
 
 Dighton and Tomlinson, 74. 
 
 Doe v, Simpson, 80. 
 
 Dormer's Case, 30. 
 
 Drury v. Kent, 37. 
 
 Dowse's Case, 320. 
 
 Duke of Marlborough and Davis, 32. 
 
 Duke of Marlborough v. Lord 
 
 Godolphin, 76. 
 Duncombefl. Duncomb, 321. 
 
 Eden and Allerton, 307. 
 Emmot and Andrews, 73. 
 
 Fermor's Case, 17. 22. 
 Fisher v. Smith, 47. 
 Flarty v. Odium, 32. 
 Flower v. Baldwin, 55. 
 Focus v. Salisbury, 16. 
 Folkes v. Weston, 265. 
 Fox's Case, 49.
 
 NAMES OF CASES 
 
 Gainsfordv. Griffith, 323. 
 
 Gervis v. Pead, 324. 
 
 Godolphin (Lord) and Duke of 
 
 Marlborough, 76. 
 Goodtitle v. Pettoe, 81. 83. 
 Grantham v. Hawley, 30. 
 Green v. Smith, 305. 
 Griffith and Gainsford, 323. 
 
 Haggie and Ryle, 305. 
 Hamington v. Rydear, 311. 
 Hanway and Clarkson, 48. 
 Hare v. Buckley, 30. 
 Harewood and Milner, 307. 
 Harman and Wilson, 310. 
 Hawley and Grantham, 30. 
 Heron v. Treyne, 311. 
 Hertford and Daniel, 26. 
 Hey ward's Case, 50. 
 Hobart and Windsmore, 321 . 
 Holland v. Boins, 50, 51 . 
 Hollo way v. Pollard, 53. 
 Horde and Atkyns, 18. 20. 
 Hoskins «nrfTreuchard, 325. 
 Howell v. Richards, 322. 
 Hughes v. Beunet, 323. 
 Hynde's Case, 57. 
 
 Jekyl and Williams, 307. 
 Jennings and Mullery, 55. 
 Jones and Brown, 80. 
 
 Keat and Barber, 46. 50. 
 Kent and Drury, 27. 
 Keyles and Sympson, 80. 
 
 Lade v. Barker, 28. 
 Lambert and Ward, 46. 
 Lamplugh and Shortridge, 65. 69. 
 Lawsou v. Lawson, 73. 
 Lidderdalc v. Montrose, 32. 
 Lisle v. Lisle, 77. 
 
 Lloyd v. Spillet, 68. 
 Lord Godolphin and Duke of Marl- 
 borough, 76. 
 Lower and Weale, 29. 
 Lutwichv. Mittou, 46. 
 
 Machill v. Clark, 54. 
 Madgwick and Carter, 315. 
 Margaret Podger's Case, 23, 24. 
 Marlborough (Duke of) and Davis, 
 
 32. 
 Marlborough (Duke of) v. Lord 
 
 Godolphin, 76. • 
 Martin and Crouch, 32. 
 Masters and Rashleigh, 310. 
 Maundrell v. Maundrell, 75. 
 Milner v. Harewood, 307. 
 Mitton and Lutwich, 46. 
 Mocket's Case, 57. 
 Montrose and Lidderdale, 32. 
 Moor and Pollexfen, 305. 
 Mountjoy's Case, 39. 
 Mullery v. Jennings, 55. 
 Muns and Nervin, 322. 325. 
 
 Nervin v. Muns, 322. 325. 
 Noke's Case, 325. 
 Northumberland's Case, 58. 
 
 Odium and Flarty, 32. 
 Oldinv. Samborn, 51. 
 Ord and Brandlyn, 23. 
 Osborn v. Churchman, 46. 
 Oxford (University of) and Baley, 
 31. 
 
 Pead and Gervis, 324. 
 
 Pearly v. Smith, 309. 
 
 Pelham's (Sir William) Case, 54. 
 
 Perry v. Bowes, 57. 
 
 Pettoe and Goodtitle, 81. 83. 
 
 Pincke and Shove, 40, 41.
 
 IN THE SECOND VOLUME. 
 
 Pitfield's Case, 265. 
 Podger's (Margaret) Case, 23, 24. 
 Pollard and Holloway, 53. 
 Pollexfen v. Moor, 305. 
 Pomfret v. Windsor, 23. 
 Popham's Case, 58. 
 Popharn and Thomas, 55. 
 Priddy v. Rose, 32. 
 
 Rashleigh v. Masters, 310. 
 
 Richards and Howell, 322. 
 
 Ripley v. Waterworth, 306. note 307. 
 
 Roe v. Traumar, 80. 
 
 Rose and Priddy, 32. 
 
 Rydear and Hamington, 311. 
 
 Ryle v. Haggie, 305. 
 
 Salisbury and Focus, 16. 
 Samborn and Oldin, 51. 
 Sandys' and Campbell, 307. note. 
 Scudamore and Crossing, 46. 80. 
 Seymour's Case, 54. 
 Shields v. Atkins, 23. 
 Shortridge v. Lamplugh, 65. 69. 
 Shove v. Pincke, 40, 41. 
 Shrapnell v. Vernon, 51. 
 Simpson and Doe, 80. 
 Sir Robert Barker's Case, 57. 
 Sir Francis Barrington's Case, 30. 
 Sir William Pelham's Case, 54. 
 Skerne's Case, 29. 
 Smith and Pearly, 309. 
 Smith and Fisher, 47. 
 Smith and Green, 305. 
 Smith, ex parte, 311. 
 Spillet and Lloyd, 68. 
 
 Spooner v. Day, 27. 
 Stafford v, Wentworth, 311. 
 Stanley v. White, 30. 
 Sympson v. Keyles, 80. 
 
 Tancred and Whaley, 23, 24. 
 Taylor v. Vale, 49. 
 Thomas v. Popham, 55. 
 Tomlinson v. Dighton, 74. 
 Trenchard v. Hoskius, 325. 
 Tran mer and Roe, 80. 
 Treyne and Heron, 311. 
 Turnman v. Cooper, 319. 
 Tyrrel's Case, 52. 
 
 Vale and Taylor, 49. 
 Vernon and Shrapnell, 51. 
 Vernon v. Vernon, 310. 
 University of Oxford and Baley, 31. 
 
 Ward v. Lambert, 46. 
 Waterworth and Ripely, 306, note 
 
 307. 
 Weale v. Lower, 29. 
 Wentworth and Stafford, 311. 
 Western and Folkes, 265. 
 Westfaling v. Westfaling, 308. 
 Whaley v. Tancred, 23, 24. 
 White and Stanley, 30. 
 Williams v. Jekyll, 307. 
 Wilson v, Harman, 310. 
 Windsor and Pomfret, 23. 
 Windsmore and Hobart, 321 . 
 Wordsworth and Aynsley, 310. 
 Wright and Browning, 322.
 
 FEOFFMENT. 
 
 (1.) I may describe a feoffment to be a con- Definition of 
 veyance of corporeal hereditaments from one 
 person to another by delivery of the posses- 
 sion upon, or within view of, the heredita- 
 ments so conveyed. 
 
 The ceremony used in such act of delivery 
 is called livery of seisin. 
 
 (2.) As feoffments are the most simple, so The antiquity 
 
 . of feoffments. 
 
 they are the most ancient, species of convey- 
 ance. The original method of acquiring pro- 
 perty in lands was by occupancy; and the 
 first mode of transferring it from one man to 
 another was by the public and solemn deli- 
 very of the possession. Sir Ed ward Coke has 
 observed*, that when the kinsmen of Eli- 
 melech gave unto Boas the parcel of land, 
 that was Elimelech's, he took off his shoe, 
 and gave it unto Boas in the name of seisin 
 
 1 Co. Litt. 49. b. 
 VOL. II. B
 
 2 Feoffment. 
 
 The antiquity of the land (after the manner of Israel), in the 
 
 of feoffments. i -.i j. a- p 
 
 presence, and with the testimony, or many 
 witnesses; and that when Ephron enfeoffed 
 Abraham of the field of Machpela, he said 
 to him, Agrum trado tibi, &c.; I deliver this 
 field to thee. 
 
 This mode of conveyance, by actual deli- 
 very of the land, derives its present name of 
 feoffment from the introduction of the feudal 
 system in England; for it is the donatio feudi 
 according to its acceptation with us b . At 
 what period, however, whether before or 
 after the Norman conquest, we are to date 
 the establishment of the feudal tenures in this 
 country, has been a point so much disputed, 
 that it is impossible to form a decided opinion 
 upon it without differing from some of the 
 most respectable authorities . 
 
 b Co. Lift. 9. a 
 
 c It is worthy of notice, 
 that the term feodum, or 
 feof, was not always ap- 
 plied to lands. Thus, in a 
 convention made between 
 Henry the First, and Ro- 
 bert earl of Flanders, dated 
 at Dover the lGth of the 
 calends of June 1101, 
 wherein the earl engages 
 to assist Henry, ad tenen- 
 dum et defendendum regnum 
 Anglice^ contra omnes ho- 
 mines, qui vivere, et mori 
 possint, the king of Eng- 
 land, on his part, engages 
 
 to pay the earl unoquoque 
 anno 400 marcas argenti in 
 feodo. Vide Acta Regia, 3. 
 in notis. However, when 
 we speak of a feoffment, we 
 must understand the word 
 as applying to a convey- 
 ance of lands only. For 
 Briton on this head tells us, 
 that " Don est un nosme 
 " general, plus que n'est 
 "feoffment ; car Don est 
 " general a toutes choses 
 " moebles,et nient moebles, 
 " et feoffment est riens 
 ** farsque de soil." Wing. 
 Brit. Ca. 34.
 
 Feoffment. :j 
 
 (3.) The conveyance by feoffment was in- introduction of 
 troduced into this country, when men were feoffment. ° 
 scarcely acquainted with the use of letters; it 
 was necessary, therefore, that it should be on 
 or near to the land, in order that the tenants 
 of the manor, who in those days determined 
 in the lord's court all controversies relating 
 to such translation, might be witnesses to 
 the livery. After the conquest, charters of 
 feoffment began to be in use; at first, how- 
 ever, they were drawn up in no regular form ; 
 nor was there any uniformity in the style till 
 the reign of Edward I. Still the charter of 
 feoffment was by no means a necessary part 
 of the conveyance d ; though we may con- 
 clude, that men found by experience, that it 
 was the most sure way to authenticate and 
 secure the titles to their property. At all 
 times, a livery of seisin, made in pursuance 
 of a charter, was less liable to disputes con- 
 cerning its validity, than that made on a 
 conveyance without a deed. The conveyance 
 of feoffment in writing served, as Bracton 
 observes 6 , ad perpetuam memoriam, propter 
 brevem hominum vitam, et ut facilius probari 
 possit donatio. The legislature has, however, 
 rendered a charter of feoffment as necessary 
 as the livery of seisin. For by the statute 
 of frauds/ there can be no conveyance of 
 
 * 2 Bac. Ab. 46S. f 29 Car. 2. c. 3. 
 
 « Bract, lib. 2. fol. 33. b. 
 
 B 2
 
 4 Feoffment. 
 
 introduction of lands or hereditaments, for more than three 
 
 the charter of ■ ,1 . •.- 
 
 feoffment. years, without writing. 
 
 of the two (4.) To every feoffment, whether made to 
 
 kinds of livery v ' * 
 
 of seisin. create an estate in fee-simple, fee tail, or for 
 life, livery of seisin is indispensably neces- 
 sary 8 ; and it properly denotes the willingness 
 of the feoffor to part with, and the feoffee to 
 receive the estate, of which the feoffment is 
 made' 1 . This livery of seisin is divided into 
 livery in deed, and livery within view, or 
 in law. 
 
 Livery indeed. (4.) l. Livery in deed is performed by the 
 feoffor's coming upon the land, and deliver- 
 ing to the feoffee, a clod, branch, or turf, 
 there growing, " In name of seisin of all the 
 " lands and tenements contained in this 
 " deed' :" or livery in deed may be given by 
 the feoffors delivering the charter upon the 
 land, in the name of livery of seisin of all 
 the lands comprised in the deed k ; or by 
 words only, without any act of delivery, as if 
 the feoffor, being upon the land, says to the 
 feoffee, " Enter you into this land, and take 
 " seisin of it in the name of all the land con- 
 " tained in this deed 1 ." But in all cases, 
 
 e Shep. T. 20C. Ab. 7. pi. 10. 
 
 h West's Symb. part 1. ' 6 Co. 26. b. 9 Co. 
 
 s. 251. 137. b. Sed contra, Cro. 
 
 1 2 Black. Com. 315. Jac. 80. pi. 2. 
 k 9 Co. 138. a. 2 Roll.
 
 Feoffment. 5 
 
 where the delivery of the charter is to serve Livery in deed. 
 as livery of seisin, it is necessary, that the 
 charter should be delivered in the name of 
 seisin, &c. &c. ; for otherwise it will serve as 
 a delivery to perfect the deed, and not as 
 livery of seisin m . If the livery of seisin be 
 of a house, the feoffor must take the ring, 
 or latch of the door (the house being quite 
 empty), and deliver it in the form above 
 mentioned ; and then the feoffee must enter 
 alone, shut the door, then open it, and let 
 iii the others". 
 
 In all cases of livery of seisin by deed, a Livery by attor- 
 man may either give or receive it by attor- 
 ney . The power to give or receive the livery 
 must be by deed, in order that it may appear, 
 whether it be pursuant to the authority . If 
 the feoffment be by deed poll, the letter of 
 attorney may be contained in it; but not so, 
 if it be by deed indented; unless the attorney 
 be a party to such indenture . The power 
 of attorney must be executed both in the 
 lifetime of the feoffor, and the feoffee r . It is 
 said, that when the king made a feoffment, 
 he used to issue his writ to empower his she- 
 riff, or other person, to deliver seisin : in 
 
 m Co. Litt. 48. a. q Co. Litt. 52. b. Sed 
 
 n 2 Black. 315. contra, Cro. Eliz. 905. 2 
 
 ° Co. Litt. 52. a. 2 Roll. Roll. Ab. 8. pi. 12. Shep. 
 
 Ab. 8. T.217. 
 
 >' 2 Roll. Ab. 8. pi. 4, 5. r Co. Litt. 52. b. 
 
 B 3
 
 Feoffment. 
 
 Livery by attor- time other great men did the same ; and this 
 circumstance gave rise to powers of attor- 
 ney 3 . 
 
 ney 
 
 view 
 
 Livery within (4.) 2. The livery within view, or in law, 
 
 is made when the feoffor is not actually upon 
 the land or in the house, but being in sight 
 of it, says to the feoffee 1 , " I give you yon- 
 " der house, enter and take possession ;" or 
 by delivering a charter of feoffment within 
 view, says, " I will, that you have the lands 
 " that you see there, which are comprised in 
 " this deed, according to the purport of it u ." 
 There is this inconvenience attending the 
 above mode of delivery, that no freehold 
 can be vested before an actual entry made by 
 the feoffee w . Therefore, in case of the death 
 either of feoffor or feoffee before entry, the 
 livery is void. It may possibly happen, 
 that the feoffee is prevented from making an 
 actual entry by bodily fear ; yet still he may 
 make his claim, as near to the land as he 
 dares to venture ; which will be sufficient to 
 vest the possession in him, and render the 
 livery complete x . It must be observed, that 
 
 • Butl. note 2. Co. Litt. u 2 Roll. Ab. 7. pi. 2. 
 
 271. b. See further as to w Co. Litt. 266. b. Shep. 
 
 livery by attorney, Co. Litt. Touch. 217. 
 
 52. b. note 2. Com. Dig. x 2 RolL Ab. 3. (J.) Co. 
 
 Feof. B. 3 Ba. Ab. Feof. E. Litt. 48. b. 
 
 1 Pollexf. 47. 2 Bac. 
 Ab. 485.
 
 Feoffment. 7 
 
 no livery within view can be made by attor- Livery within 
 
 view. 
 
 ney y . 
 
 (5.) If a feoffment be made of lands in Livery of lands 
 
 . . , . . . lying in differ- 
 
 several towns in one county, and seisin be ent places and 
 
 ,. i /> > i i i • j .in different 
 
 given of parcel or the lands in one town, in counties. 
 the name of the lands in that and in the 
 other towns, all these lands of the feoffor 
 will pass 2 . But if a feoffment be made of 
 lands in different counties, livery in deed 
 must be made in each of the counties a : yet 
 livery within view may be made of lands 
 lying in different counties b . So too if livery 
 in deed be made in the name of the whole of 
 a manor, which extends to two counties, li- 
 very in one county is sufficient . 
 
 (6.) The ceremony of livery was first in- Theiivery can 
 
 ,, , » , . , not create an 
 
 stituted, that the pares ot the county might, estate of free- 
 
 ! . • ., i f i i i hold to com- 
 
 upon any dispute concerning the freehold, m ence infuturo. 
 be able to judge, in whom the right was d . 
 Hence no estate of freehold can be made to 
 commence infuturo by feoffment and livery 
 immediately given thereon 6 . But on the 
 creation of a freehold remainder, where there 
 
 y Co. Litt. 52. b. Shep. b Co. Litt. 48. b. 2 Bac. 
 
 T. 217. and so, it should Ab. 486. 
 
 seem, as to receiving livery. c Perk. s. 227- 
 
 See Co. Litt. 49. b. d 2 Bac. Ab. 486. 
 
 * Litt. s. 418. 2 Roll. e Co. Litt. 27. a. 5 Co. 
 
 Ab. 11. 94. b. 2 Vent. 204. 
 
 a 2 Roll. Ab. 11. pi. 2. 
 Perk. s. 227. 
 
 B I
 
 8 Feoffment. 
 
 The Hvery can- is a preceding estate for years, as a term for 
 estate^ free- three years to A. remainder in fee to B., if 
 mentxtyuturo. livery of seisin, which must be in deed, be 
 made to the tenant for years, the freehold is 
 immediately created, and vested in B. during 
 A.'s term 8 . For this is an estate, though to 
 be enjoyed infuturo, yet commencing in pre- 
 sently But there would be no notoriety or 
 evidence, if after livery made the freehold 
 still remained in the feoffor 11 ; as where a 
 feoffment is made to B. in fee, his estate to 
 commence seven years from that time, or 
 after the feoffor's death. In such case the in- 
 vestiture would rather create, th£m prevent, 
 uncertainty. 
 
 If a livery be made to a lessee for years, 
 remainder to the right heirs of B., this livery 
 is void ; because nemo est hares viventis\ and 
 because it is a rule, that no contingent re- 
 mainder can be supported without a preced- 
 ing estate of freehold. But if A. lease to B. 
 for years, on condition, that if B. pay him a 
 certain sum on such a day, then B. shall have 
 the fee-simple; upon livery of seisin to B. 
 the freehold passes to him conditionally 14 . 
 But if B. had an estate for life, with a like 
 condition, the livery would not have carried 
 
 * Litt. s. 60. 2 Black. j Co. Litt. 217. a. 
 
 166. Co. Litt. 49. b. k Litt. s. 350. 
 
 h 2 Roll. Ab. 7. pi. 8. 
 Cro. El. 344.
 
 Feoffment. 9 
 
 the inheritance, till the performance of the The livery can- 
 
 not create an 
 Condition 1 . estate of free- 
 
 hold to com- 
 mence in fu- 
 . . turo. 
 
 (7.) As the design of livery was to de- 
 note the change of possession, it must follow, Sna^Kc 
 that the possession,which is delivered, should E5j£. ° f * 
 be vacant. Therefore, it is generally true, 
 that every feoffor should have actual posses- 
 sion" 1 ; and where a man has let his lands 
 out on lease, or has them extended on a sta- 
 tute merchant, &c. he cannot, whilst the 
 lessee or conuzee is in possession, make a 
 valid feoffment, and livery of them". But 
 this must be understood, where the lessee or 
 tenant is averse to such feoffment and livery ; 
 for where he consents, it is clearly good ; 
 and if there be several tenants, there must 
 be as many liveries p . But in speaking of te- 
 nants of the lands, tenants at will and at 
 sufferance are not included; for their consent 
 is by no means necessary 01 . Though the 
 feoffor's lands are out upon lease, yet if he 
 can obtain a clear and actual possession 
 (though the lessee dissent), the livery is 
 
 1 Co. Litt. 217. b. lessee will not operate as a 
 
 m Co. Litt. 48. b. 2 Roll, surrender or forfeiture of 
 
 Ab. 3, 4. Dy. 33. a. b. his lease. Moor, 11. pi. 
 
 Cro.EI. 322. 41,42. 20 Vin. 127. F. 
 
 n See the above cases, Dy. 33. a. 
 
 and 2 Co. 31. b. p Dy. 18. a. b. pi. 106. 
 
 • Co. Litt. 48. b. Dy. 2 Black. Com. 316. 
 
 33. a. b. Concerning an q 2 Roll. Ab. 4. Dy» 
 
 implied consent, see 2 Roll. 18. b. 
 Ab. 5. The consent of the
 
 10 Feoffment. 
 
 of Hvery of valid ; and it is immaterial, whether such 
 
 lands in the , , , , , > , , 
 
 possession of a possession be gained by the lessees own ab- 
 sence', or by the ouster of him by the feof- 
 for". Yet in cases of ouster, and absence of 
 the lessee, the possession of any part of the 
 lauds by his wife, children, or servants, has 
 been deemed sufficient to avoid the livery 1 . 
 And as the servant is supposed to act for the 
 benefit of his master, even his permission 
 will not make good the livery u 5 though in- 
 deed the subsequent consent of the master 
 will*. But the cattle of the lessee continuing 
 upon the land will not affect the operation of 
 the livery y . 
 
 How the livery (8.) A charter of feoffment was found par- 
 nraitationfin^ticularly useful in pointing out the certainty 
 feoffment of the limitation of the estate intended to be 
 conveyed by the feoffment and livery : for 
 parol limitations, at the time the livery was 
 made, must ever have been liable to objec- 
 tions and disputes. Yet it was said, that the 
 livery would alter and correct the limitation 
 made in the charter of feoffment. Thus, if 
 the charter had been made in fee, and the 
 feoffor had delivered seisin for life, the feoffee 
 could have held but for life 2 . But at the 
 same time, as the livery was endorsed, it pre- 
 
 r Dy. 363. a. 2 Roll. 4. u 2 Roll. Ab. 5. 
 
 pi. 11. x Ibid. 
 
 ■ Moor, 91. pi. 226. y Co. Litt. 48. b. 
 
 1 Co. Litt. 48. b. 2 Roll. * Co. Litt. 222. b. 
 Ab. 4, 5. Bro. Feof. 66.
 
 Feoffment. II 
 
 vented any uncertainty. However, if in that How the livery 
 
 ., v iii ir i tf can correct the 
 
 case the livery had been made for lite, se- limitations in 
 cundumformam chartce, the feoffee would ne- feoffment. 
 vertheless have had the fee; because the li- 
 very then had a reference to the deed, which 
 limited the estate in fee y . 
 
 These remarks, it is hoped, will afford a 
 sufficient knowlege of the general rules re- 
 lating to livery of seisin. According to the 
 present disuse of the conveyance by feoffment, 
 there are very few other cases to be found on 
 the subject of any real consequence. They, 
 however, who wish to search more minutely 
 into this learning, are referred to the authors 
 cited below 2 . 
 
 (9.) Though the conveyance by feoffment The operation 
 
 . ., i • • i °f tne feoffment 
 
 is now very seldom resorted to, it is by no in particular 
 means an obsolete conveyance. In some 
 cases it operates as strongly as the convey- 
 ances by fine and recovery : jn others more 
 forcibly : and the operation of it in those par- 
 ticular instances will be the subject of our 
 inquiries. 
 
 (9.) 1. It has the effect of barring or de- As to the de- 
 
 ,• , . ,. struction of 
 
 stroying contingent remainders depending contingent re- 
 
 mainders. 
 
 1 Co. Litt. 48. a. 222. b. Com. Dig. Feoff. West, 
 
 881. a - Symb. pi. 1. s. 235 to 264. 
 
 1 Viu. Ab. Feoff. 2. Ba. Shep. T. 199 to 217. 
 Ab. Feoff. 2 Roll. Ab. Feoff.
 
 12 Feoffment. 
 
 As to the de 
 struction of 
 
 upon particular estates. This quality is an- 
 contingent re- nexed to a fine and recovery, but not to a 
 
 mainders. . i 1 1 11 
 
 bargain and sale, lease and release, or grant . 
 In Archer's case b , where lands were devised 
 to A. for life, and to the next heir male of A. 
 and the heirs male of the body of such next 
 heir male (which limitation was deemed a 
 contingent remainder to the son of A.), it was 
 determined, that the feoffment of A. destroy- 
 ed the contingent remainder to his next heir 
 male. So if there be tenant for life, remain- 
 der to the right heirs of J. S., and the tenant 
 for life make a feoffment during the life of 
 J. S. ; the particular estate is determined, and 
 the contingent remainder to the heirs of J. S. 
 destroyed . 
 
 shifting and fu- (p.) 2. It was observed in a preceding 
 tureuses. page, that a springing or shifting use cannot 
 be barred by feoffment, fine, or recovery; un- 
 less the seisin, out of which it is to be served, 
 be disturbed ; as in the case of a covenant to 
 stand seised to the use of such a person upon 
 a particular event : in which, until the con- 
 tingency happens, the use in fee results to the 
 covenantor ; and the covenantor, before the 
 use vests, may by a feoffment prevent its 
 taking effect' 1 . But though a man cannot 
 
 a 3 Wils. 245. See post c Litt. Rep. 160. 
 
 Bargain and Sale, &c. d See supra, 143 to 149. 
 
 b 1 Co. 66. h. 1 Vol.
 
 Feoffment. 13 
 
 bar a shifting or future use to a third person, shifting and fu- 
 except in the instance just mentioned, yet he 
 may exclude himself by a feoffment from all 
 future uses and possibilities. Thus in a case 6 
 where J. S. covenanted to convey lands to the 
 use of himself in fee, until such time as he 
 the said J. S. his heirs, executors, or adminis- 
 trators, should make default in payment of a 
 certain sum, and after such default to the use 
 of the queen, her heirs and successors, until 
 her heirs and successors should receive a cer- 
 tain sum ; after which period to the use of 
 J. S. and his heirs for ever ; J. S. levied a fine 
 to those uses; and afterwards, being seised 
 accordingly, he bargained mid sold the lands to 
 a stranger. Default was then made in pay- 
 ment of the money ; the queen seized the 
 lands, and granted them over to another and 
 his heirs, quousque the money be paid. After- 
 wards J. S. paid the money ; and the question 
 was, whether he could have the lands again 
 contrary to his own express bargain and sale. 
 It was resolved, that as J. S. at the time of the 
 bargain and sale had an estate in fee, deter- 
 minable upon a default of payment, according 
 to the first limitation of the use ; so that de- 
 terminable fee only passed by the bargain and 
 sale, and not the new estate, which accrued by 
 the latter limitation after the money paid, for 
 that was not in esse at the time of the bargain 
 
 e 1 Leon. 33. pi. 40. See 112. a. b. Hob. 337. 
 also 1 Co. 174. b. 111. b.
 
 14 Feoffment. 
 
 shifting and fu and sale : but that if J. S. had conveyed by 
 
 turc uses* 
 
 feoffment or fine, then he would have barred 
 himself from ever taking under the latter li- 
 mitation of the use. 
 
 Powers in gross, (9.) 3. A feoffment destroys powers ap- 
 
 &c. rents, com- ' . 
 
 mon, &c. pendant and powers in gross ; but not powers 
 collateral* : and it bars the feoffor of all in- 
 terest in the lands, such as rents, common, 
 and the like g ; and also of the benefit of a 
 condition of re-entry, writs of error, and 
 attaint, &c. h 
 
 So if a man seised of an estate of inherit- 
 ance in his own right, and possessed of a 
 lease for years in futuro in right of his wife, 
 makea feoffment of the land ; by the feoffment 
 the term is extinguished'. But in this case, 
 if the grantor had conveyed by bargain and 
 sale, the lease would not have been affected 
 by it k . So it should seem, that if A. be en- 
 titled to a rent-charge issuing out of the manor 
 of D. in right of his wife, and afterwards 
 purchase the manor ; by a bargain and sale 
 thereof the rent will not pass 1 . 
 
 As to the ope- (q.\ 4. \ feoffment is the only convev- 
 
 ration of a feoft- v ' " * 
 
 mentincre- ance, by which a tenant for years, by elegit, 
 
 ating an estate * 
 
 of freehold by 
 
 the'natureTf 1 f See su P ra ' 1 vo1, 17l > et ! See Brac ebridge's case, 
 
 the esta"? thus s eq. Plowd. 422, 423. Moor, 
 
 created. * Shep. T. 199. 171. pi. 304. 1 Leon. 5. 
 
 h Ibid. 200. 1 Co. 112. k Moor, 171. 
 
 a. b. ' I Leon. 6.
 
 Feoffment. 15 
 
 statute merchant, or staple, or a copyholder Astotheope- 
 
 i. r ill! »■ ••m ration of a feoft- 
 
 can create an estate or freehold by disseisin . rae ntincre- 
 The utility of the feoffment, in this instance, of "reehVd b y e 
 
 t 11 .1 Ax disseisin; and 
 
 exceeds all other conveyances. As to a reco- the nature f 
 very, there is an absolute necessity, that there Seated** thUS 
 should be a tenant of the freehold, against 
 whom the writ of entry may be brought : and 
 as to a fine, if a tenant for years, &c. levy a 
 fine without having previously created a free- 
 hold by disseisin, the fine may be avoided by 
 pleading partes Jinis nihil habuerunt* '. 
 
 To make a feoffment valid, nothing is want- 
 ing in the feoffor but possession ; and when he 
 has it, though it be but a naked one, the 
 livery will create an estate of freehold by dis- 
 seisin' : and the estate of freehold thus created 
 will be sufficient, as I have before said, to sup- 
 port a fine levied upon it. 
 
 Thus in a case cited by Mr. Knowler p , 
 where cestuique use,before the statute of uses, 
 conveyed the use by bargain and sale, and af- 
 terwards levied ajine to a. stranger : the ques- 
 tion was, whether the fine was not void. 
 Neither of the parties had any thing in use 
 or possession ; for by the bargain and sale the 
 
 m See Co. Litt. 49. a. 2 
 
 1 Burr. 92. Bro. Dis. 
 
 Inst. 413. 
 
 64. Bract, lib. 2. fol. 31. a. 
 
 n See 1 P. W. 519. t 
 
 11. b. 
 
 Vent. 241. 2 Atk. 241. 3 
 
 p 1 Burr. 25. 
 
 Atk.562. Hard. 401. 

 
 16 Feoffment. 
 
 As to the ope- use was in the bargainee; and consequently, 
 
 ration of a feoff- 
 
 tlie estate thus 
 created. 
 
 ment in ere- there was nothing remaining in the bargainor, 
 
 ating an estate , T _ 
 
 offreehoid by nor conveyed to the stranger. It was argued, 
 
 disseisin; and ,./.,/. . i , • 
 
 the nature of that if the fine were not good, great inconve- 
 nience would follow ; for that many recove- 
 ries had been suffered against the bargainor, 
 after he had conveyed the use. To this Fitz- 
 herbert replied, that it was the folly of pur- 
 chasers, that they did not take a feoffment 
 from cestuique use, before the fine was levied : 
 for if they did, the fine would be good. For 
 his part, he said, he would never purchase any 
 land without taking a feoffment ; so that he 
 might be in possession, when the fine should 
 be levied ; for then the fine would be un- 
 doubtedly good. In this case, the feoffment 
 by the bargainor, after the bargain and sale, 
 could not have been warranted by the statute 
 1 Rich. 3. c. 1., supposing he had made it to 
 the stranger; because after that period, in 
 fact he was not cestuique use. 
 
 In the case of Focus v. Salisbury q , lord 
 Hale observes, " When lessee for years or at 
 " will is to levy a fine, it is usual for the les- 
 " see to make a feoffment first, to displace the 
 "other estates." So lord Coke, in speaking of 
 a tenant by copy of court roll, observes, that 
 if he make a feoffment in fee, and levy a fine, 
 
 « Hard. 400.
 
 Feoffment. 17 
 
 with proclamations, and five years pass, the As to the ope - 
 
 ration of a feoff- 
 lOrd IS barred r . ment in creating 
 
 an estate of free- 
 hold by diss.ei- 
 t» •/» .11 ill sm > ant * tne 
 
 r>ut if a tenant at will, copyholder, or nature of the 
 
 i f. i r> rr ii estate thus cre- 
 
 lessee for years, make a feonment, and levy a a ted. 
 fine, and still continue in possession ; his 
 payment of rent, or performance of services, 
 will be deemed a fraudulent circumstance, 
 and will prevent the operation of the feoff- 
 ment and fine in barring the owners of the 
 inheritance. Thus, in Fermor's case 5 , where 
 R. F., seised of the manor of S., leased some 
 lands, parcel of the said manor, to J. S. for 
 years; who was also possessed of other lands 
 at the will of R. F., and held lands of the 
 said manor by copy of court roll ; J. S. made 
 a feoffment with livery to C. for life, and 
 then levied a fine with proclamations. J. S. 
 continued in possession, and paid the rents 
 to R. F. And it was resolved, that as the 
 feoffment was made, and as the fine was levied 
 by fraud and covin, the owner of the fee 
 should not be bound by the five years non- 
 claim. 
 
 Though a feoffment by tenant for years, 
 &c. will create a freehold by disseisin, which 
 estate of freehold will support a fine, yet a 
 feoffment by tenant in tail in remainder will 
 not create such an estate of freehold, as can 
 
 r Co. Law Tracts, 126. 8 3 Co. 77- a. 
 
 VOL. II. C
 
 18 Feoffment. 
 
 As to the ope- support a common recovery. This point was 
 
 ration of a feoff- , , . - r A ., tt i » • 
 
 mentincre- settled in the case of Atkyns v. Horde 1 ; in 
 
 atinjr an estate , • , ■%• ,• ,• l i A 
 
 of freehold by which a distinction was made between an 
 tbe S nat"reof d actual disseisin and a disseisin at the election 
 created! 16 lhus of the parties. But it does not appear to me, 
 that the distinction there taken was applicable 
 to the case of a disseisin created by a feoff- 
 ment; the case indeed seems rather to have 
 been determined upon general principles of 
 justice, than from strictly legal conclusions. 
 Lord Mansfield, in delivering the opinion of 
 the court, observed, that if the question had 
 been, whether tenant in tail in remainder 
 should by an injurious entry and feoffment 
 acquire a benefit to himself to the prejudice 
 of the reversioner ; it would have been ad- 
 judged, from eternal principles of justice > that 
 an act founded on wrong should not, by virtue 
 of the crime itself, become legal for the au- 
 thor's advantage. " And now," added his 
 lordship, " it is agitated, when common reco- 
 " veries are established as a sjyecies of aliena- 
 " tion: and the question is, whether the rule 
 "of law, which requires the concurrence of 
 *' the owner of the first estate for life, shall 
 " be overturned ? 'Tis better to subvert the 
 " rule directly, than suffer it to be done by a 
 " secret injurious entry and feoffment." 
 
 The notion of a disseisin at election arose 
 from the circumstance of a man's supposing 
 
 1 1 Burr. GO. Cowp. G89.
 
 Feoffment. 19 
 
 himself to be disseised, when in fact he was As to the ope - 
 noi, for the sake of entitling himself to the mem in creating 
 
 -, ■> . » , l /» an estate of 
 
 easy and commodious remedy by assize of freehold by dis- 
 
 7 t ' • / i • i .i .i -, seisin; and the 
 
 /eove/mssmzra (which was the common method nature of the 
 of trying titles, till the ejectment came in Jjjf thuscre ' 
 use"), instead of being driven to the more te- 
 dious process of a writ of entry. The remedy 
 by assize of novel disseisin was introduced to 
 redress actual disseisins recently committed; 
 and the facility of that remedy induced others 
 who were wrongfully kept out of the freehold 
 (though not by an actual disseisor), to allow 
 or feign themselves to be disseised, merely 
 on account of the remedy w . 
 
 Mr. Butler*, in a note upon this subject, 
 observes, that " By a disseisin at the elec- 
 " tion of the party, is not to be understood 
 " an act which in itself is a disseisin, but 
 " which the party supposed to be disseised 
 " may, if he pleases, consider as not amount- 
 ing to a disseisin; on the contrary, every 
 " act which is susceptible of being made a 
 " disseisin by election, is no disseisin, till the 
 " party in question, by his election, makes it 
 " such." The case of Blundel v. Baugh y is 
 an instance of a disseisin at election. In that 
 
 u Burr. 110. » W. Jones, 315, 316. 
 
 w See 3 Black. Com. 170, See the cases cited 1 Bur. 
 
 171. Ill, 112, 113. 
 x Butl. Co, Litt. 330, b. 
 
 Q. 1. 
 
 c 2
 
 20 Feoffment. 
 
 As to the ope- case the judges held, that if a tenant at will 
 
 ration of a feoff- . , r -, . , t i • 
 
 ment in ere- make a lease for years, rendering rent, and his 
 
 Jf freehold by lessee enter and pay rent, that can be no dis- 
 
 thTnature of seisin, unless at the election of the first lessor. 
 
 cre e aS te thus In this case the original act by the tenant at 
 
 will, viz. the making the lease for years, was 
 
 not of itself sufficient to create a disseisin; 
 
 but if the first lessor had feigned himself to 
 
 be disseised for the sake of the remedy, then 
 
 it would have become a disseisin upon the 
 
 election of the first lessor. 
 
 It follows, from the above explanation of 
 a disseisin at the election of the party, that 
 every act, which immediately of itself creates 
 a disseisin, must be considered as an actual 
 disseisin. Now the feoffment of a tenant for 
 years at will, &c. had the peculiar force of 
 creating an immediate estate of freehold in 
 the feoffee, with all the rights and incidents 
 annexed to it ; the estate of the feoffee be- 
 came immediately subject to dower and cur- 
 tesy, and the descent upon the heir imme- 
 diately took away the entry of the disseisee 2 . 
 
 It was said indeed in the above case of 
 Atkyns v. Horde, that where the books speak 
 of an actual disseisin created by the feoffment 
 of a tenant for years, &c. it must be under- 
 stood of feoffments of old, attended with li- 
 
 « See Butl. Co. Litt. 330. b. note 1.
 
 Feoffment. 21 
 
 very, and an actual transmutation of the As to the ope- 
 
 ration of a feoff- 
 
 possession ; but that conveyances had now mentincre- 
 
 . /, i i i i i.i • atin g an estate 
 
 languished into mere form, and had lost their of freehold by 
 
 /r , i7« disseisin ; and 
 
 efficacy and solemnity. the nature of 
 
 the estate thus- 
 created. 
 
 But Mr. Butler, in the excellent note 
 referred to, has endeavoured to prove (and 
 I think successfully), that feoffments from 
 the time of Henry the second (which is 
 prior in point of time to the instances 
 given by the judges as cases of old feoff- 
 ments) to the present period, have not been 
 made with any other solemnities, than those 
 with which they are made at present; and 
 of course that the operation and efficacy 
 universally allowed them by courts of judica- 
 ture, and writers of authority, from that mo- 
 narch's reign, must be ascribed to them now. 
 Mr. Butler concludes by observing, that from 
 the authority of Bracton and others, the dis- 
 seisin produced by feoffments must be under- 
 stood to be an actual disseisin, and not a dis- 
 seisin merely at the election of the party; that, 
 however slender, bare, or tortious, the posses- 
 sion of the feoffor is, his feoffment necessarily 
 and unavoidably vests the freehold in the feof- 
 fee, till the disseisee, by entry or action, re- 
 stores his possession : and that a fine may be 
 levied of, or common recovery suffered upon, 
 this estate of freehold by disseisin; which feoff- 
 ment, fine, and recovery, will in process of time 
 bar the owner of the freehold and inheritance. 
 c 3
 
 22 Feoffment. 
 
 As to the ope- There is a case, that must occasionally 
 
 ration of a feoff- , „ -, , , i • i « 
 
 mem in ere- come before professional gentlemen, which is 
 of freehow b/ principally founded on the learning of dissei- 
 se nature^? sins : — Suppose A . to be possessed of a term 
 c!ca C ted. te thus of 1000 years, under a decree of foreclosure, 
 made perhaps 50 or 100 years ago; and on 
 account of the s:reat length of time since the 
 term was first created, it is impossible to as- 
 certain the owners of the reversion in fee ; in 
 this case, if A. the termor is desirous of ob- 
 taining the freehold and inheritance, and for 
 the reasons just given he cannot legally pur- 
 chase the reversion, he may by a feoffment 
 and fine absolutely acquire the fee ; and as 
 the reversioner is here unknown, and as there 
 is no payment of rent, or the like, which 
 would, according to Fermor's case, admit the 
 possession of the reversioner, there can be 
 nothing to obstruct the full force and opera- 
 tion of the feoffment and fine. 
 
 In a case of this kind, it seems advisable, 
 that the term should be previously assigned 
 to an indifferent person ; that a feoffment 
 with livery of seisin should then be made and 
 a fine levied. The uses of the feoffment and 
 fine may be declared either to the feoffor or a 
 purchaser ; but there should be a declaration 
 of the trusts of the term to attend the inhe- 
 ritance, not generally, but as acquired by the 
 feoffment and fine 1 . 
 
 1 Sec Vol. 1. 32 to 45.
 
 Feoffment. 23 
 
 In Brandlyn v. Ord% lord Hardwicke Astotheope- 
 
 , ration of a 
 
 said, " that a fine levied by a termor for years feoffment in 
 
 • i , • i /• creating an es- 
 
 " is a forfeiture; but the reversioner has five tau? of freehold 
 
 j, 1 . , by disseisin ;, 
 
 "years after the expiration of the term to and the nature 
 " enter." The rule is confirmed by the case thus created. 
 of Whaley v. Tancred b ; which was that of a 
 feoffment made, and fine levied, by a lessee 
 for years : and the reason of it is, because the 
 lessee is trusted with the possession, and there 
 is a privity between him and the lessor : and, 
 as lord Hale observed , it is like a mortgage, 
 where the mortgagor continuing in possession 
 levies a fine. 
 
 But in the case above stated of a termor 
 after a decree of foreclosure, there cannot, I 
 conceive, be any privity between him and 
 the reversioner. During the existence of the 
 equity of redemption, there was indeed a 
 privity: but the decree put an end to the 
 confidence between them ; at least in the re- 
 lation of mortgagor and mortgagee. The 
 above case is rather more similar to that put 
 in Margaret Podgers case d : lessee for years, 
 and the lessor, are both disseised, and a fine 
 is levied upon such newly-acquired estate by 
 disseisin; after five years run upon the fine 
 from the time it was levied, the lessee and 
 
 a lAtk. 571. fret v. Windsor, 2 Ves. 
 
 b Whaley v. Tancred, 1 481. 
 Vent. 241. T. Ray m. 219. c Hard. 402. 
 
 See also Shields v. Atkins, '' 9 Co. 105. b. 
 
 3 Atk. 562. 141. 339. Pom- 
 
 C 4
 
 24 Feoffment. 
 
 Astotheope- lessor are both barred. Now the feoffment 
 
 ration of a 
 
 feoffment in i n the principal case after the assignment of 
 
 creating an es- ....■».. 
 
 tate of freehold the term would create a disseisin, I imagine, 
 
 by disseisin; . . 
 
 and the nature not only as against the reversioner, but as 
 
 of the estate ... - 
 
 thus created, against the assignee or trustee 6 of the term. 
 Though the case, cited from Margaret Pod- 
 ger's case, has been doubted f ; I do not know, 
 that it has been expressly over-ruled ; on the 
 contrary, the distinction appears to have been 
 recognized in Whaley v. Tancred. 
 
 I shall conclude by citing the opinion of 
 lord Hardwicke g , who said, if a man pur- 
 chase an estate, which he sees himself has a 
 defect upon the face of the deeds, ajine levied 
 will be a bar ; for the defect upon the face of 
 the deeds is often the occasion of the fine's 
 being levied. 
 
 e See 2 Ves. 481. « 2 Atk. 631. 
 
 f 2 Vent. 334.
 
 25 
 
 GRANT. 
 
 Description of 
 
 The principal conveyances at common law agrant ' 
 were by feoffment and grant ; the former was 
 applicable to corporeal,, the latter to incorpo- 
 real, hereditaments ; the transfer was com- 
 plete in the one case by the livery of seisin ; 
 in the other, by the delivery of the deed, and 
 of attornment. A grant was therefore said 
 in some instances by the additional ceremony 
 to be a conveyance in writing of property, 
 which could not pass by livery of seisin. 
 
 The term grant, is generally applied to 
 conveyances by feoffment, fine, recovery, 
 lease and release, bargain and sale, and co- 
 venant to stand seised. But the simple grant 
 at common law is complete without any of 
 the ceremonies peculiar to the above con- 
 veyances. It does not require inrollment 3 , 
 nor a prior lease for years, nor the considera- 
 tion necessary to establish a covenant to 
 stand seised to uses. Livery of seisin is al- 
 
 * See post, sec. 2.
 
 26 Grant. 
 
 Description of together inapplicable to it, and it is not mat- 
 agran * ter of record. 
 
 But though the conveyance by grant at 
 common law is confined to property lying in 
 grant; yet that kind of property may be also 
 transferred by conveyances, adapted to the 
 transfer of corporeal hereditaments. I shall, 
 therefore, in this place direct my inquiries, 
 First, as to the several kinds of incorporeal 
 hereditaments of a gran table quality, and the 
 several conveyances by which they may be 
 granted : Secondly, as to attornment, and the 
 effect of the statute of inrollments and the 
 4th Anne, c. 16. s. 9. upon the ancient grant 
 at common law : Thirdly, as to the operative 
 words of a grant : Fourthly, as to the opera- 
 tion of a grant by tenant in tail. 
 
 As to these- (i.) Common of pasture, of turbary, of 
 
 veral kinds of ^ 
 
 incorporeal he- fishing, and of estovers, niay in general be 
 
 reditaments of . ■ 
 
 a grant able conveyed by way of grant, in fee, for life or 
 
 quality, and the . . „ 
 
 several convey- years, from man to man in injinitunr. r>ut 
 
 ances bv which " , , , , , ,, 
 
 they may be the books, though not very clear upon the 
 subject, seem to make the following distinc- 
 
 Common. tions in respect of common of pasture. Com- 
 mon appendant for pasture cannot by grant or 
 otherwise be severed from the land ; neither 
 can common appurtenant, if it be for cattle 
 
 Shep. T. 238. 239. niel v. Hertford, Cro. Car. 
 
 Perk. s. 104. See Da- 542,
 
 Grant. 27 
 
 levant and couchant, or without number d . As to the se- 
 But common appurtenant for a certain number incorporeal he- 
 
 » t . . . , i/>^i reditaments of 
 
 of beasts may by grant be severed from the a gra ntabie 
 soil, and thereby made common in gross*, ^ell vera" con- 
 As to common in gross in fee, it may be^STey 7 
 granted over, though it be without number* ; ma y be g ranted 
 but it is said, that a grantee for life % , or 
 years 1 *, of common of pasture (which must be 
 understood of common in gross) for cattle 
 without number, cannot transfer the same; 
 unless the original grant be made to him 
 and his assigns 1 . 
 
 Common, of the grantabie quality just 
 described, may be transferred by grant at 
 common law k ; or it may be extinguished by 
 a release to the tenant of the land 1 ; and 
 common certain may be granted by fiue m , 
 though not by recovery". It seems doubtful, 
 whether before the statute of uses common of 
 pasture could have been conveyed by bargain 
 and sale, or covenant to stand seised ; but 
 as the statute comprises all kind of incorpo- 
 real property, which may lawfully be granted 
 
 A Drury v. Kent, Cro. k See Litt. s. 617. West, 
 
 Jac. 15. 1 Roll. Ab. 402. Symb. pi. 1. s. 294. 
 
 e Ibid, and see Spooner ' Sliep. T. 322. 
 
 v. Day, Cro. Car. 432. ■ Ibid. 10. 1 Cruise, 121. 
 
 f 2 Roll. Ab. 46. pi. 15. " Pig. 96. 2 Cru. 168. 
 
 « Perk. s. 103. ° See VV. Jones, 118. 127. 
 
 h 2 Roll. Ab. 46. pi. 16. Bro. Tit. Feof. al. Uses, pi. 
 
 ' Sed quaere, and see 10. 
 Roll, supra.
 
 28 Grant. 
 
 As to these- by one to another, it will now pass by either 
 
 veral kinds of ., , 
 
 incorporeal he- ot those conveyances. 
 
 reditaments of 
 
 a grantable 
 
 quality, and the a l • i , 1 i 
 
 several convey- A rent in esse may be granted or assigned, 
 they m b ayle ich even before the grantor has seisin of it p ; 
 granted. ^ut no t during its suspension q ; and a rent- 
 
 Rents, charge may be conveyed by fine r and reco- 
 
 very 5 , lease and release, bargain and sale, 
 and covenant to stand seised 1 , as well as by 
 the grant at common law. 
 
 So a rent may be reserved on, and created 
 by a fine u , bargain and sale x , and conse- 
 quently a lease and release. It may also be 
 reserved out of the estate or seisin of a reco- 
 veror in a common recovery 7 . But the grant 
 of a rent-charge out of lands, of which the 
 grantor is not seised at the time of the grant, 
 is void; though the grantor should afterwards 
 purchase the same lands* : unless perhaps 
 the grant be by fine executory*. So no rent 
 can be reserved out of a rent b , or other in- 
 corporeal hereditament : and if a disseisee re- 
 lease to his disseisor, reserving a rent, such 
 reservation is void d . 
 
 p Shep. T. 238. Perk. s. s Co. Litt. 144. a. 
 
 91. y Cromwell's case, 2 Co. 
 
 *> Shep. T. 238. 69. b. 72. b. 
 
 r Ibid. 11. z Perk. s. 65. 
 
 s See Pig. 97. a Ibid. 65, 66. and see 
 
 1 See Lade v. Barker, 2 Shep. T. 11. 243. 
 
 Vent. 260. 266. b Shep. T. 238. 
 
 u Shep. T. 5. 2 Roll. Ab. c Co. Litt. 144. a. 
 
 18. A Ibid.
 
 Grant. 29 
 
 Vested remainders in fee and reversions As to the se - 
 
 - . . veral kinds of 
 
 may be granted or transferred by grant 6 , incorporeal he- 
 
 . . iifi ii reditaments of 
 
 bargain and sale , lease and release 5 , cove- a grantabie 
 nant to stand seised 11 , fine 1 , or a release to seveS'toavey- 
 the particular tenant 14 ; but not by a reco- Se^mayte 10 ' 
 very', nor feoffment. So a remainder in tail gianted ' 
 can only be conveyed by fine m . As to con- andTeversfons. 
 tingent remainders, they may be destroyed, as 
 I have before observed, by feoffment, fine, 
 or recovery ; but they can only be conveyed 
 by fine by way of estoppel, and perhaps by 
 a common recovery". 
 
 The interest which a lessee has in his lease interesse ter- 
 before entry is capable of being assigned . 
 But if A. make a lease for forty years to B., 
 and it is covenanted, that if the premises be 
 well repaired at the expiration of the term, 
 the lessee shall hold over for a further term 
 of years; it seems doubtful, whether the in- 
 terest of the lessee in the second term be as- 
 signable at law v . 
 
 The proprietor of land may grant the em- Emblements. 
 blements, or fruits and produce thereof q ; 
 
 e Litt. s. 568. m 3 Co. 84. a. 
 
 f Vaugh. 51. u See Fearne, Cont. Rem. 
 
 * Butl. Co. Litt. 270. a. 537. 4th edition. Weale v. 
 
 note 3. Lower, Poll. 54. 
 
 h 5 Co. 8. b. 11. L Co. 46. ° Co. Litt. 46. b. 
 
 b. 47. a. p See Skerne's case, 
 
 4 See Shep. T. 13. Moor, 27. 
 
 k Litt. s. 575. <* Perk. s. 57. 59. 
 2Cru. 30, 31.
 
 30 
 
 Grant. 
 
 ances by whicl 
 they nii 
 granted 
 
 Tithes. 
 
 As to these- and not only such as are actually upon the 
 
 veral kinds of . r 
 
 incorporeal be- land at the time of the grant, but such as 
 
 reditaments of 
 
 agrantabk may afterwards grow thereupon, or arise out 
 
 quality, and the - . - 111 1 1 » ■ 
 
 several convey- or it ; tor, say the books, the land is mo- 
 they'mayle c J ther and root of all fruits, and the proprietor 
 of it is possessed of the present fruits actu- 
 ally, and of the future potentially?. So a par- 
 son may grant all the tithe wool, that he 
 shall have in such a year ; but a man cannot 
 grant all the wool, which shall grow upon 
 his sheep, which he shall afterwards pur- 
 chase ; for he hath not the latter actually, 
 nor potentially" 1 . 
 
 Advowsons. Advowsons are conveyed by grant at com- 
 
 mon law r ; and as they may be limited to 
 uses, they may be also transferred by bar- 
 gain and sale, covenant to stand seised, and 
 lease and release. So a fine may be levied 
 of an advowson s : and if it be appendant to 
 a manor, a recovery may be suffered of it 
 upon a writ of entry en le postK But if the 
 advowson be in gross, the recovery must be 
 
 2 Roll. Ab. 47, 48. So 
 there may be a grant as 
 well of trees then growing, 
 as of trees which shall 
 thereafter grow upon the 
 soil. See sir Francis Bar- 
 rington's case, 8 Co. 136. 
 b. and 14 East, 338, 339. 
 in Stanley v. White. 
 
 p See Grantham v. Haw- 
 ley, Hob. 132. 
 
 * Ibid. 
 
 r Litt. s. 617. Co. Litt. 
 332. a. A prebendary can- 
 not charge his prebend be- 
 fore induction. Hare v. 
 Buckley, Plowd. 526.528. 
 
 s 8 Co. Rep. 145. a. 
 
 *■ Dormer's case, 5 C. 
 Rep. 40.
 
 Grant. 31 
 
 suffered upon a writ of right of advowson u : As to the se - 
 
 . — _ 1 i , r veral kinds of 
 
 or if it be suffered ot the advowson, together incorporeal he- 
 
 . -,, j. * i ,, .' | reditaments of 
 
 with a small quantity of land, then it may be ag rantabie 
 
 _, . r , . . . quality, and the 
 
 suffered upon a writ ot entry sur disseisin . seve rai convey- 
 ances by which 
 
 they may be 
 
 A corrody certain 7 , and services 2 , are s ranted - 
 
 , , . /. *.*, ■> Corrody, ser- 
 
 grantable in fee, or lire, or years ; and so viC es, seigno- 
 are seignories and franchises ; such as views J2J? 
 of frankpledge, and perquisites of courts; 
 to have waifs, wrecks, estrays, treasure trove, 
 royal fish, forfeitures, and deodands; the con- 
 uzance of pleas or bailiwick, fair or mar- 
 ket, a forest, chase, park, warren, or fishery, 
 and the like 3 . 
 
 A tenant in fee-simple may grant the title- Charters. 
 deeds of his estate, and the grantee may 
 either keep or cancel them : but not so as to 
 a tenant in tail b . 
 
 On the other hand, there are several kinds 0ffices of trust * 
 of incorporeal property, which the policy of 
 the law does not permit to be the subjects of 
 grant or transfer. Thus offices of trust and 
 confidence are not grantable; unless in some 
 special cases, where they are expressly grant- 
 ed to a man and his assigns, or to him and 
 
 u See 2 Cru. 167. as to a corrody uncertain 
 
 x Baley v. University of 2 Roll. 45. 
 
 Oxford, 2 Wils. 116. a Shep. T. 239. 
 
 y Perk. sec. 103. 2 Roll. b Ibid. 241, 242. Co. 
 
 Ab. 45. Litt. 232 b. 
 
 2 Shep. T. 238. Secus
 
 32 Grant. 
 
 As to the se- his heirs . So an annuity pro concilio in pos- 
 «Tcolp k o'r n e d ai he- terum impendenclo cannot be transferred ; un- 
 a JiSe ° f less the original grant thereof expressly au- 
 ^TeS'wrfveJ- tliorize an assignment* 1 : and it has been lately 
 JiTm 1 ? bi" ch determined, that the pay of an officer in the 
 granted. army is not assignable 6 . 
 
 Indeed in no case will the law permit the 
 transfer of choses in action*. Courts of equity 
 however have in most instances supported as- 
 signments of them. A bond, the benefit of 
 a decree or judgment 8 , a seaman's wages h , 
 and the like choses inaction, may be transfer- 
 red in equity; such equitable transfer being 
 considered in the nature of an agreement, of 
 which the Court of Chancery directs the 
 performance. 
 
 As to attom- (2.) Incorporeal property arising from, or 
 
 effect of the* consisting of rights to, land, and of the 
 rtUmStsfand grantable quality before described, may be 
 f 9 A 5^ 6 ' divided, as Mr. Fearne has observed, into 
 conveyance b y two genera j c i asse s : « The first, comprising 
 
 c Perk. sec. 99, 100. d Perk. s. 101. 7 Co. 28. 
 
 Shep. 239. 241. 2 Atk. c. See Har. Co. Litt. 144. 
 
 14. 332. See Priddy v. b. note 1. 
 Rose, 3 Mer. 86. A pen- e Flarty v. Odium, 3 
 
 sion for past services may Term Rep. 681. Lidder- 
 
 be aliened ; but a pension dale v. Montrose, 3 Term 
 
 for supporting the grantee in Rep. 248. 
 the performance of future f Co. Litt. 214. a. See 
 
 duties, is inalienable. Da- 2 Black. Com. 442. 
 vis v. duke of Marlborough, * 3 P. W. 199. 200. 
 
 Swanst. 74. and the cases h Crouch v. Martin, 2 
 
 there cited. Vern. 595.
 
 Grant. 33 
 
 " such real hereditaments as consist of rights As to attom- 
 
 , . . ment, and the 
 
 " to future enjoyment of lands divided from effect of the 
 
 statutes of in- 
 
 44 the riffht of present possession, as remain- roiiments, and 
 
 . . . 4th Ann. c. 16. 
 
 " ders and reversions, together with such mix- s . 9. upon the 
 
 , , .. . . , . . conveyance by 
 
 ** ed hereditaments as consist in things issu- gra nt. 
 " ing out of lands, or to be rendered, paid, 
 " or done, by the tenants or owners of lands 
 " in respect to the tenure thereof. The other 
 " class, extending to all the residue of incor- 
 " poreal hereditaments, namely, to those mix- 
 '.' ed hereditaments which, though they re- 
 " late to lands, or some benefit thereout, or 
 " have a local relation, yet are distinct from 
 " the ownership or right of enjoyment of 
 44 the lands themselves, or of any thing to 
 44 be paid, rendered, or done by the tenants 
 44 or owners of land in respect of the tenure 
 44 thereof 1 ." 
 
 A deed was necessary to the transfer of 
 every kind of incorporeal property; and as to 
 the hereditaments falling within the latter of 
 the above classes, they passed by the mere 
 delivery and execution of the deed. But to 
 the conveyance of those hereditaments, which 
 are comprised in the first branch of the above 
 division, the additional ceremony of attorn- 
 ment was necessary ; which was nothing 
 more, than the consent of the tenant of the 
 land to the disposition or grant intended to 
 
 i See Fearne's Posth. Works, 12. 
 VOL. II. D
 
 34 Grant. 
 
 As to attom- be made. Attornment in eases of this kind 
 
 ment, and the «... 
 
 effect of the was as necessary, as livery of seisin in the 
 
 statutes of in- /• i > w 
 
 roiiments, and conveyance ot corporeal estates . 
 
 4th Ann. c. 16. 
 s. 9. upon the 
 
 conveyance y It is to be observed, that a use might have 
 been raised upon a bargain and sale for a pe- 
 cuniary consideration, and upon a covenant 
 to stand seised in consideration of blood or 
 marriage ; and by the mere operation of the 
 statute of uses, the legal estate was transfer- 
 red to the bargainee in the one instance, and 
 to the covenantee in the other. No cere- 
 mony was made necessary by that statute to 
 either of those conveyances : and therefore 
 the solemnities of livery of seisin and at- 
 tornment, were, in fact, totally superseded by 
 it; for as the most trifling pecuniary consi- 
 deration could raise a use for the benefit of 
 the bargainee, it was no difficult matter to 
 contrive, that every conveyance, not operat- 
 ing as a covenant to stand seised, should fall 
 within the description of a bargain and sale. 
 To correct this inconvenience occasioned by 
 the statute of uses, so far as it related to bar- 
 gains and sales, the statute of inrollments was 
 made 1 ; which enacted, that no hereditaments 
 should pass from one man to another, whereby 
 
 k It is proper here to ob- the attornment of the te- 
 
 serve, that if a man had nant at will, because the 
 
 leased his land at will, and grantor had not a reversion, 
 
 had afterwards granted the 1 Roll. Ab. 292. a. pi. 9. 
 
 land to another, the land ' 27 Hen. 8. c. 16. 
 would not have passed by
 
 Grant. 35 
 
 any estate of freehold or inheritance should Astoatiom- 
 
 1 j ,1 cr ± • ment, and the 
 
 be made or take effect in any person, or any effect of the 
 use or uses thereof to be made, by reason only rou2Sfa, and 
 of any bargain and sale thereof, except such s !k upon C 'the' 
 bargain and sale be inrolled within six months SS?"^ by 
 next after the date thereof. 
 
 From the evident import of the words of 
 this statute, it seems clear, that if there had 
 been a conveyance of corporeal hereditaments 
 by livery of seisin, or a grant of incorporeal 
 hereditaments falling within the first branch 
 of the above division by deed and attorn- 
 ment, or if coming within the second branch 
 of it, by deed only ; the hereditaments, com- 
 prised in such conveyance or grant, could 
 not have been said to pass by reason only of a 
 bargain and sale thereof m ; but on the con- 
 trary, by reason of the livery in the one case, 
 and of the deed and attornment, or deed only, 
 in the other : and, that if there had been a 
 grant of incorporeal hereditaments of the 
 first description for a pecuniary consideration 
 without attornment, such grant would have 
 been considered as a bargain and sale within 
 the statute, and would have required inroll- 
 ment as such. 
 
 Thus the matter stood upon the principles 
 of the common law, and upon the construc- 
 tion of the statute of inrollments. But some 
 
 m See 2 Inst. 671. 1 Leon. 6. 
 
 D 2
 
 3t> 
 
 Giant. 
 
 A»to»itorn- doubts liave arisen upon the statute of 4 Ann. 
 
 ment, and the . . . . . , . r^,, 
 
 effect of the c. ] 6. s. 9. ; by which it was enacted, " lhat 
 
 statutes of in- ,, , in ,7 
 
 roiiment?, and " grants and conveyances by nne or otherwise 
 
 4th . .nn. c. 16. ,, i. . r 4.^ 
 
 s. 9. upon the of any manors or rents, or or the reversion 
 
 conveyance by ,, • i r 1 1 
 
 grant. or remainder ot any messuages or lands, 
 
 ' shall be good and effectual to all intents 
 ' and purposes, without any attornment of the 
 ' tenants of any such manors, or of the land 
 ' out of which such rent shall be issuing, or 
 f of the particular tenants, upon whose par- 
 ' ticular estates any such reversions or re- 
 ' mainders shall and may be expectant or de- 
 ' pending, as if their attornment had been 
 ' had and made." 
 
 It is manifest, that if this act be allowed to 
 operate in the full extent of the above words, 
 it will virtually repeal the statute of inroll- 
 ments, so far as it related to hereditaments, 
 which required the ceremony of attornment 
 to tranfer them. 
 
 As I have before observed, the statute of 
 inrollments extended only to conveyances 
 operating under the statute of uses by way of 
 bargain and sale, for the purpose of intro- 
 ducing the ceremony of inrollment in the 
 place of livery and seisin, and attornment, in 
 cases where thosesolemnities were superseded 
 by the operation of the latter statute. The 
 act of inrollments was never meant to apply 
 to those conveyances, which, operating under
 
 Grant. 37 
 
 the principles of the common law, were com- Astoattom- 
 
 , . , i ■ P ,. ment, and the 
 
 plete without the assistance or, or any refer- effect of ti. e 
 
 .. - , statutes of in- 
 
 ence to, the doctrines and statute of uses, roiiments, and 
 
 rpii r i 1 a 1 4th Ann • c - 16< 
 
 lneretore, when incorporeal property de- s . y. upon the 
 scribed in the second of the above classes g?ant? ac * J 
 was intended to be conveyed, the grant there- 
 of was perfect, at the common law upon the 
 execution of the deed only; and when that 
 in the first of those classes was intended to 
 be granted, the additional ceremony of at- 
 tornment was necessary to the transfer. But 
 in both cases inrolhnent was unnecessary. 
 When indeed the ceremony of attornment 
 was omitted in the latter case; the grant, if 
 made for a pecuniary consideration, was con- 
 sidered as a bargain and sale within the statute. 
 Why? Because it was otherwise incomplete: 
 it could therwise have no operation at all. 
 
 Then the statute of Anne was enacted, 
 which expressly directs, that all grants of 
 rent, reversions, and remainders, shall be per- 
 fect without attornment. Now if we are to 
 form a construction upon this statute from 
 the general import of the words, the effect 
 produced by it would be, that all incorporeal 
 hereditaments, in respect to the transfer of 
 them, are placed upon the same footing : that 
 they will all pass without attornment by deed 
 only; and consequently, that grants of here- 
 ditaments, described in the first branch of the 
 above division, being now perfect without at- 
 d 3
 
 38 Grant. 
 
 As to attom- tomment, and without the aid of, or any re- 
 
 ment, and the 
 
 effect of the ference to, the statute of uses, will no more 
 roiiments, and require inrollment under the statute, when 
 
 4th Ann. c. 16. . ,.. . 1 . , 
 
 s. 9. upon the made lor a consideration in money, than 
 conveyan . y g ran j g Q f j ierec iitanients falling within the se- 
 cond of the above classes. 
 
 But Mr. Fearne has contended, that the 
 statute of enrollments stands entirely unaf- 
 fected by the statute of Anne respecting at- 
 tornments; because it would be contradictory 
 to all the rules, which hold in the construc- 
 tion of statutes, to extend such general inde- 
 finite words, as the words, or otherwise, in the 
 statute of Anne, to the repeal of a preceding 
 statute, unnoticed in the subsequent one 2 . 
 
 It appears to me, however, that the words 
 of the statute of Anne express the meaning 
 of the legislature very clearly and distinctly: 
 and if the manifest intention of the statute 
 cannot be affected without a partial repeal of 
 a preceding one, I can see no reason why the 
 rule of law, which says, that leges posteriores 
 abrogant priores, should not take place. The 
 two statutes appear perfectly repugnant to 
 each other, so far as they relate to incorporeal 
 hereditaments, which require attornment to 
 pass them: and I can see nothing contradic- 
 tory to the rules, usually adopted in the con- 
 
 1 See Fearnc's Posth. Works, 32, 33.
 
 Grant. 39 
 
 struction of statutes, in considering the former As to attorn- 
 ment, and the 
 statute virtually repealed by the latter to the effect of the 
 
 statutes of in- 
 
 extent of such repugnancy. roiiments, and 
 
 4th Ann. c. 16. 
 s. 9. upon the 
 
 Butan evident inconsistency would result g?ant! yan 
 from the construction contended for by Mr. 
 Fearne. Suppose a voluntary grant of here- 
 ditaments comprised in the first of the above 
 classes, without either a good consideration 
 to support it as a covenant to stand seised, or 
 a pecuniary one to establish it as a bargain 
 and sale; as this grant does not interfere with 
 the statute of inrollments, there can be no 
 doubt but that it would be good by the sta- 
 tute ot Anne without attornment ; and yet, ac- 
 cording to Mr. Fearne's construction, that 
 statute would be altogether inapplicable to 
 another grant of the same hereditaments, and 
 under the same circumstances, excepting only 
 in the trivial, and perhaps accidental one of 
 having the consideration of a shilling, or a 
 penny, so as to make it a bargain and sale 
 within the statute of inrollments. 
 
 (3.) The word, grant, is the most proper As to the opera- 
 
 . . 1 , -, tive words of a 
 
 for the transfer of incorporeal hereditaments, grant. 
 But it is not absolutely necessary in grants, 
 strictly operating as such at common law by 
 the mere delivery of the deed. Therefore it has 
 been determined, that words of covenant 1 , or 
 
 * Mountjoy's case, 3 Lev. 305. 4 Leon. 147. 2 Ves. 9. 
 D 4
 
 40 Grant. 
 
 As to the opera- au instrument in the shape of an obligation 1 *, 
 
 tive words of a 
 
 grant. may amount to a grant of a way, or a rent- 
 
 charge. 
 
 The wdrdygrant, is essentially requisite in 
 those cases only, where the conveyance, by 
 which the incorporeal property is intended to 
 pass, is exclusively applicable to the transfer 
 of corporeal hereditaments; or being appli- 
 cable to the transfer both of corporeal and in- 
 corporeal property, some ceremony , necessary 
 to the completion of it, is omitted. Thus, no 
 incorporeal property can pass by a feoffment, 
 and livery, unless the word grant be used ; 
 and when a conveyance is intended to ope- 
 rate as a release, surrender, or confirmation, 
 and such release, surrender, or confirmation, 
 is defective, by reason that the releasee, sur- 
 renderee, or confirmee, has no estate to sup- 
 port the conveyance as a release, &c, or upon 
 any other account; then such defective con- 
 veyance cannot operate as a grant of the in- 
 corporeal hereditaments intended to pass, un- 
 less the operative wovft, grant, be therein par- 
 
 b Co. Litt. 147. a. 2 Roll, from the books, that a feoff- 
 
 Ab. 424. or the words, " li- nieut of a reversion or re- 
 
 " mit and appoint." Shove mainder, with the subse- 
 
 v. Pincke, 5 Term. Rep. queni attornment of the te- 
 
 124. 310. want, would have amounted 
 
 c See the opinion in 1 to a grunt before the .statute 
 
 Bridg. Con. 323. 2 Roll, of Ann. See 2 Roll. Ab. 
 
 Ab.5G.pl. 2. It should seem 56. pi. 13. 2 Bac. Ab. 41)1,
 
 Grant. 41 
 
 ticularly applied to the transfer 11 . So it has As to the opera 
 
 tive words of a 
 
 been determined 6 , that where a reversion was grant. 
 intended to be conveyed by bargain and sale, 
 by the words, bargain and sell only (the con- 
 veyance being void as a bargain and sale for 
 want of inrollment), it should not pass by 
 way of grant at common law with attorn- 
 ment a . 
 
 As incorporeal hereditaments may be sur- 
 rendered/ released 5 , and limited to uses h , 
 they may consequently be conveyed by sur- 
 render, lease and release, and bargain and 
 sale, without the word grant 1 ; because there 
 are other particular terms appropriated to 
 each of those conveyances. 
 
 (4.) A grant at common law passes such Astotheopera- 
 
 ... , tion of a grant 
 
 an estate only in the property conveyed as in working a 
 
 ., . irii r Ti discontinuance. 
 
 the grantor may lawfully transfer. It con- 
 sequently does not work a discontinuance, 
 
 a See Litt. s. 541, 542. " seisin, the douee cannot 
 
 Co. Litt. 301. b. Cowp. " take by the livery, for that 
 
 600. But see Shove v. " the lessee hath the rever- 
 
 Pincke, cited above. " sion presently." 
 
 6 Cro. Jac. 210. Moor, f Co. Litt. 338. a. 
 
 34. pi. 113. eShep.T. 321, 322. 
 
 a But see 3 Leon. 16. h See ante, I vol. 107. and 
 
 " If he in reversion on a post, tit. Bargain and Sale, 
 
 " lease for years, grants sec. 6. 
 " his reversion to his lessee * See, as to a lease and 
 
 " for years by words ofrfe- release, Mr. Booth's opinion 
 
 " di, concessi, feoff avi, and in 2 vol. of Cases and Opi- 
 
 " a letter of attorney is nions, 144. 
 " made to make livery of
 
 42 Grant. 
 
 As to the opera- when made by tenant in tail of an advowson, 
 
 tion of a grant . . . . 
 
 in working a common, remainder, or any other lnnent- 
 
 discontinuance. . . . .,. 
 
 ance lying in grant k . 
 
 k Litt. sec. 616, 617. Co. Litt. 332. a.
 
 43 
 
 BARGAIN and SALE. 
 
 (1.) The conveyance by bargain and sale Description of 
 
 v the conveyance 
 
 was introduced before the statute of uses, and b y bargain and 
 originated from an equitable construction of 
 the Court of Chancery. A bargain was made, 
 or a contract entered into, for the sale of an 
 estate; the purchase-money was paid, but 
 there was either no conveyance at all of the 
 legal interest, or a conveyance defective at 
 law by reason of the omission of livery of sei- 
 sin, or attornment : that court properly 
 thought, that the estate ought in conscience 
 to belong to the person who paid the money, 
 and therefore considered the bargainor or 
 contractor as a trustee for him. 
 
 An equitable interest in land, thus raised 
 and conveyed in the first instance by the pay- 
 ment of money upon a mere contract, or 
 upon a conveyance unoperative at law, be- 
 came, in process of time, transferrable by a 
 formal conveyance under the name of a bar- 
 gain and sale. 
 
 The bargainee, entitled to the use by vir- 
 tue of this equitable conveyance, became im-
 
 44 
 
 Bargain and Sale. 
 
 Description of mediately seised of the possession by thesta- 
 
 the conveyance . . ,. 
 
 by bargain and tute of uses ; and the operation of that sta- 
 tute, as I have before observed, tended, in 
 effect, to supersede altogether the solemnities 
 of livery of seisin and attornment: for when- 
 ever a pecuniary consideration was intro- 
 duced into a conveyance, unaccompanied by 
 livery of seisin, or attornment, such convey- 
 ance immediately became a bargain and sale ; 
 and the possession was thereupon transferred 
 to the bargainee without any other ceremony, 
 than the mere delivery of the deed. There- 
 fore, to restore in some measure the policy of 
 the common law, in adding notoriety to the 
 transfer of property, the statute 27 Hen. 8. 
 c. 16. directs, that every conveyance by bar- 
 gain and sale shall be inrolled within six 
 months 1 after the date thereof. 
 
 1 27 Hen. 8. c. 16. " Be 
 " it enacted by the autho- 
 " rity of this present par- 
 " liament, that from the 
 " last day of July, which 
 " will be in the year of our 
 11 Lord 1536, no manors, 
 " lands, tenements, or other 
 11 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 bar- 
 " gain and sale thereof, ex- 
 " cept the same bargain 
 " and sale be made by writ- 
 " ing indented, sealed, and 
 " inrolled in one of the 
 
 king's courts of record at 
 Westminster, or else with- 
 in the same county or 
 counties where the same 
 manors, lauds, or tene- 
 ; ments so bargained and 
 sold, lie or be, before the 
 custos rotulorum, and two 
 justices of the peace, and 
 the clerk of the peace of 
 the same county or coun- 
 ties, or two of them at 
 the least, whereof the 
 clerk of the peace to be 
 one ; and the same inroll- 
 ment to be had and made 
 within six mouths next 
 after the date of the same 
 writings indented;- the 
 same custos rotulorum, or 
 justices of the peace and 
 clerk, taking for the in-
 
 Bargain and Sale. 
 
 45 
 
 (2.) The possession, or rather legal es- £ s £ n ^ fo- 
 late, thus transferred by the operation of the bargainee under 
 
 J * the statute of 
 
 statute of uses, is equivalent, in most re- uses. 
 spects, to a possession or legal interest ac- 
 quired by an actual entry, or attornment, 
 under a conveyance operating at common 
 law. Therefore if a bargain and sale be made 
 for years of land in the possession of the bar- 
 gainor, such estate for years is capable of re- 
 ceiving a release of the reversion before an 
 
 " rollment of every such 
 " writing indented before 
 " them, where the land cora- 
 " prised in the same writing 
 " exceeds not the yearly 
 " value of forty shillings, 
 " two shillings ; that is to 
 " say, twelve pence to the 
 " justices, and twelve pence 
 " to the clerk; and for the 
 " inrollment of every such 
 " writing indented before 
 " them, wherein the land 
 " comprised exceeds the 
 " sum of ten pounds in the 
 u yearly value, five shillings, 
 " that is to say, two shillings 
 " and sixpence to the said 
 " justices, and two shillings 
 " and sixpence to the said 
 " clerk, for the inrollment 
 " of the same; and that the 
 " clerk of the peace for the 
 " time being, within every 
 " such county, shall surfici- 
 " ently inroll and ingross in 
 " parchment the same deeds 
 " and writings, indented as 
 " is aforesaid ; and the rolls 
 " thereof at the end of every 
 " year shall deliver uuto the 
 " custos rotulorum for the 
 " time being, there to remain 
 
 " in the custody of the said 
 " custos rotulorum for the 
 " time being, amongst other 
 " records of every of the 
 " same counties, where any 
 " such inrollment shall be so 
 " made ; to the intent that 
 " every party that hath to 
 " do therewith, may resort 
 " and see the effect and 
 " tenour of every such writ- 
 " ing so inrolled, 
 
 " Provided always, that 
 " this act, nor any thing 
 " therein contained, extend 
 " to any manor, lands, tene- 
 " ments, or hereditaments, 
 " lying or being within any 
 " city, borough, or town 
 " corporate within this 
 " realm, wherein themayors, 
 " recorders, chamberlains, 
 " bailiffs, or other officer or 
 " officers have authority or 
 " have lawfully used to in- 
 " roll any evidences, deeds, 
 " or other writings within 
 " their preckicts or limits ; 
 " any thing in this act con- 
 " tained to the contrary not- 
 " withstanding." See the 
 Irish Act of 10 Car. 2. c. 1. 
 s. 18.
 
 46 
 
 Bargain and Sale. 
 
 Astothepos- actual entry by the bargainee" 1 ; but it seems 
 wga-mee umier doubtful, whether the bargainee can maintain 
 Ses! tatute ° f an actl0n °f trespass before an actual entry". 
 So a bargainee of a reversion may avow for 
 rent, or bring an action for waste without at- 
 tornment ; but it seems, that he must give 
 notice of the bargain and sale, before he can 
 take advantage of a condition for non-pay- 
 ment of rent 1 ". It is said, that a bargainee 
 can never vouch by force of any warranty 
 annexed to the estate of the land, because he 
 is in in the post q ; but that he may rebut by 
 virtue of it r . 
 
 Consideration 
 necessary to 
 support a bar- 
 gain and sale. 
 
 (3.) A pecuniar?/ consideration is neces- 
 sary to raise a use upon this conveyance 3 ; 
 therefore the consideration of a long ac- 
 quaintance, or of friendship*, or of natural 
 love and affection", or of marriage w , or that 
 the bargaiuee is bound in a recoguizance for 
 the bargainor*, cannot create a use upon a 
 bargain and sale. 
 
 B See Lutwich v. Mitton, 
 Cro. Jac. 604. 
 
 D 1 Vent. 361. Cro. Jac. 
 604. 
 
 °6Co. 68. a. 
 
 " Cro. Jac. 146. 476. 5 
 Co. 113. See Ow. 69. 
 
 «>1 Co. 125. a. Gilb. 102. 
 Sed contra, Shep. 222. 
 
 r 2 Roll. Ab. 786, 787. 
 pi. 1. Vide supra. 1 vol. 
 120, 121. 
 
 8 See 1 Co. lie. a. Note, 
 in Barker v. Keat, 2 Mod. 
 252, it was said, that the 
 reservation of a peppercorn 
 
 would raise a use in a bar- 
 gain and sale for a year, in 
 support of a common reco- 
 very. See 1 Freem. 249. ; 
 and generally upon this 
 head, 22. Vin. 205. and the 
 cases collected under Divi- 
 sion O. 
 
 '2 Roll. Ab. 783. 
 
 u Osborn v. Churchman, 
 Cro. Jac. 127. 
 
 w Crossing v. Scudamore, 
 1 Vent. 137. 
 
 x Ward v. Lambert, Cro. 
 El. 394.
 
 Bargain and Sale. 47 
 
 But courts of equity, which originally Consideration 
 
 1 * ' . necessary to 
 
 created a use from motives of conscience support a bar- 
 gain and sale. 
 
 upon payment of a valuable consideration, 
 afterwards permitted it to be raised and 
 transferred upon an actual conveyance by bar- 
 gain and sale for any pecuniary consideration 
 of the most trifling amount ; upon payment 
 of five shillings, or upon the reservation of a 
 rent of twelve pence y . 
 
 The actual sum, paid by the bargainee, 
 need not be stated, if the conveyance be ex- 
 pressed to be made in consideration of a cer- 
 toin 2 or competent* sum ; nor is there a ne- 
 cessity, that the money should be paid upon 
 the execution of the bargain and sale ; for 
 such bargain and sale may be made either 
 conditionally, that a sum of money shall be 
 paid upon a subsequent day b , or absolutely in 
 consideration of a future payment , or of a 
 sum paid previously to the execution of it d . 
 But if a bargain and sale be made for divers 
 good causes and considerations, no use can be 
 raised upon such general consideration ; and 
 yet the conveyance may be rendered valid 
 by an averment, that money was actually 
 paid 6 . Indeed it was formerly determined, 
 
 » 2 Roll, Ab. 787, 788. b 1 Leon. 6. 
 
 10 Co. 34. a. c Dy. 337. a. in pi. 34. 
 
 1 2 Roll. Ab. 786. d 3 Keb. 201. 
 
 a Moor, 570. in Fisher e See 1 Co. 176. a. 
 v. Smith.
 
 48 Bargain and Sale. 
 
 Consideration that where a particular consideration was 
 
 necessary to . 
 
 support a bar- expressed in a deed, an averment or another 
 
 gain and sale. . . • i r 1 j • , • • 1 1 • n 
 
 might be made ; but it is now said, that if 
 in a deed the consideration of money be 
 expressed, and afterwards the parties attempt 
 to aver the consideration of blood, such 
 averment cannot be made ; for that it would 
 be of mischievous consequences, and liable 
 to the danger of perjury, which the statute of 
 frauds intended to prevent, to sutler parol 
 evidence to prove, that the consideration of 
 blood and kindred was intended, contrary to 
 that of money particularly expressed in the 
 deed g . 
 
 It appears from Roll's Abridgment 1 ', that 
 if a man, in consideration of a certain sum 
 paid by B., bargain and sell his lands to A. 
 for life, remainder to C. in fee, this is good ; 
 for though A. and C. did not pay the consi- 
 deration, yet it is evident, that it was paid 
 upon their account; or that if the bargain 
 and sale had been made to B. for life, with 
 many remainders over, the consideration 
 might well extend to those in remainder. 
 Roll indeed puts the case of a covenant to 
 stand seised for money; but such covenant 
 would at this day operate as a bargain and 
 sale. 
 
 f 1 Co. 176. a. 2 Co. 76. P. W. 204. 
 a. b. h 2 Roll. Ab. 784. pi. 6, 
 
 g Clarkson v. Hanway, 2 7. Winch. 61.
 
 Bargain and Sale. 49 
 
 (4.) The words of transfer applicable to Ti.e operative 
 this conveyance are bargain and sell; but ' 
 they are by no means necessary, nor material 
 to its operation. If a man for a pecuniary 
 consideration, by deed indented, covenant to 
 stand seised to the use of another person 1 , or 
 give and enfeoff", or alien, grant, and demise 
 to him 1 ; such deed, if properly inrolled, will 
 operate as a bargain and sale. In Fox's case m , 
 it was said, that if it should appear from any 
 clause in a deed, that it was the intention of 
 the parties to pass land by a common law 
 conveyance, there no use should be raised. 
 But it has been expressly determined to the 
 contrary. A. by deed indented, conveyed in 
 the following words : "I the said A. have 
 " given, granted, and confirmed for a certain 
 " piece of money, &c. ;" the habendum was 
 to the feoffee, with warranty against A. and 
 his heirs ; and there was a letter of attorney 
 to make livery and seisin. The deed was in- 
 rolled within one month after the making of 
 it; and the attorney, after four months from 
 the delivery, made livery of seisin. It was 
 the opinion of the whole court, that the con- 
 veyance should operate as a bargain andsale n . 
 
 1 8 Co. 94. a. 7 Co. 40. ' 8 Co. 94. a. See Taylor 
 
 in Bedell's case, 1 Vent. v. Vale, Cro. El. 16(i. 
 
 138. m 8 Co. 94. 
 
 k 3 Leon. 16. n 3 Leon. 10. ca. 39. 
 
 Vide ante 40. 
 
 VOL. II. E
 
 50 Bargain and Sale. 
 
 The operative Jf a term of years be created, in considera- 
 
 words. -i 7 • 
 
 tion of a sum of money, by the words demise, 
 grant, bargain, and sell", or by the words 
 demise and grant 6 only ; the grantee is at 
 liberty to accept of the conveyance as a de- 
 mise at common law, or as a bargain and 
 sale. But it is said, that when a conveyance 
 may take effect either at the common law, or 
 under the statute of uses, it shall operate at 
 the common law, unless the intention of the 
 parties appear to the contrary ; therefore if it 
 be intended, that a term of years should be 
 created by bargain and sale, the words bar- 
 gain and sell only, should be applied to the 
 transfer, for the purpose of avoiding any un- 
 certainty as to the operation of the deed. 
 
 Who may co«- (5.) There must be a use, and a seisin to 
 
 vey by bargain . . 
 
 and sale. serve it, in every bargain and sale; and it 
 must follow, that a person, incapable of 
 standing seised to a use, cannot transfer lands 
 by this conveyance'. But an exception to 
 this rule appears to have been attempted in 
 favour of a corporation in the case of Hol- 
 land v. Boins f . In that case it was said, that 
 though a corporation could not stand seised 
 to a use, yet it might charge its own posses- 
 
 e Heyward's case, 2 Co. 
 
 e See Gilb. Uses, 285, 
 
 35. 
 
 Cro. Jac. 50. 
 
 ' See 1 Mod. 262, 263. 
 
 f 2 Leon. 121. 3 Leon 
 
 2 Mod. 252. Barker v. 
 
 175. 
 
 Keat. 

 
 Bargain and Sale. ol 
 
 sions with a use ; a distinction certainly in- w h° may con- 
 
 ..,, . it /• i . i i • ^i ve y h ? bar s ain 
 
 compatible with a fundamental rule in the and sale. 
 construction of uses ; that the use is not an- 
 nexed to, nor chargeable upon, the land. It 
 is remarkable, that this very notion of charg- 
 ing the land with a use was considered in the 
 celebrated case ofChudleigh; and it was there 
 mentioned as an absurdity^, because, if adopt- 
 ed, it would have the effect of enabling an 
 alien, the king, a corporation, the lord by 
 escheat, &c. to stand seised to uses. How- 
 ever, to prevent any serious consequences, 
 which may arise from the determination in 
 the case of Holland and Boins, it is usual in 
 practice to make a corporation convey either 
 by feoffment with livery, or by lease and re- 
 lease, with an actual entry by the lessee for 
 a year. 
 
 (6.) All corporeal hereditaments, of which what property 
 the bargainor has a seisin, and all incorporeal ™b y bargain*" 
 hereditaments in actual existence, may be con- an sa e * 
 veyed by bargain and sale ; because they 
 may be limited to uses h . So a trust de- 
 clared upon a legal estate, and an equity of 
 redemption, may be transferred by this con- 
 veyance 1 . 
 
 * See 1 Co. 127. a. 2 Atk. 15. It has beeu 
 
 h See ante, 1 vol. 107. holdeu, that the word seisin 
 
 and ante tit. Grants, sec. is applicable to a trust es- 
 
 (1.) tate. See Shrapnell v. Ver- 
 
 1 See Oldin v. Samborn, non, 2 Bro. 268. 272. 
 
 E 2
 
 and sale. 
 
 o*2 Bargain and Sale. 
 
 what property A man seised in fee may convey by bar- 
 may be convey- , , „ r t . 
 
 ? d by bargain gain and sale for a term 01 years; but no 
 chattel interest already created can be trans- 
 ferred by bargain and sale k ; because the sta- 
 tute requires a seisin to serve uses, and the 
 owner of a chattel interest can ouly have a 
 possession 1 . 
 
 No use can be 
 
 the estate of 
 the bargainee ; 
 nor any future 
 use out of the 
 seisin of the 
 
 (7.) As no use can be limited to arise out 
 Stteo? of a use, it follows, from the above descrip- 
 tion of this conveyance, that a use cannot be 
 limited upon the legal estate of the bargainee, 
 bargainor. s0 as to ^g executed by the statute" 1 . Nei- 
 ther can there be a scintilla juris or possibility 
 of seisin remaining in the bargainor, after the 
 bargain and sale, to serve a use limited upon 
 a future event ; because the pecuniary Consi- 
 deration paid, or supposed to be paid, by or 
 on account of the bargainee, and which 
 constitutes the foundation of the bargain and 
 sale, appropriates the use exclusively for his 
 benefit. The limitation of the use to the bar- 
 gainee is a consequence arising from the pay- 
 ment of the money ; and beyond that limit- 
 ation the original consideration and contract 
 do not extend. Therefore if there be a bar- 
 gain and sale for the life of the bargainee, 
 with a power for him to make leases, a lease 
 
 k Gilb. Uses, 286. m See Tyrrell's case, Dy. 
 
 1 Poph. 76. See ante, 1 155. a. 1 And. 37. 1 
 
 vol. 260. and ante tit. Leon. 148. 
 Feoff, sec. (9.) 3.
 
 Bur gain and Sale. 53 
 
 made under that power cannot operate as an No use can be 
 
 * * limited upon 
 
 appointment of the use of the lessee". the estate of 
 
 the bargainee ; 
 nor ally future 
 use out of the 
 
 A. conveyed by bargain and sale to B.and seisin of the 
 
 i • i • , • • • •*•» -i bargainor. 
 
 his heirs, upon condition, that it A. paid a 
 certain sum to B., he might re-enter, and 
 thereupon stand seised to the use of himself 
 and his heirs, until he attempted to alien 
 without the consent of B., and then to the 
 use of B. and his heirs ; and levied a fine to 
 those uses. A. paid the money, entered, and 
 conveyed the land without B.'s consent. It 
 was said, that no use could arise to B. upon 
 the alienation ; because the bargainor, enter- 
 ing for a condition broken, was in of his old 
 use, and could stand seised to no other . 
 
 But it should seem, that a covenant may 
 be contained in a bargain and sale, on the 
 part of the bargainee, which will raise a use 
 out of his legal estate upon a future event. 
 Thus if a bargainee covenant, that upon pay- 
 ment of a sum to him he will stand seised to 
 the use of the bargainor and his heirs ; the 
 paymentofthemoney will, itshould seem, raise 
 the use p . But in this case, the original bar- 
 gain and sale, and the covenant contained in 
 it, must be considered as two conveyances' 1 , 
 
 n Poph. 81. See also 2 p See Moor, 35, pi. 115. 
 
 Roll. 260. Cro. J. 181. Dalis, 38. 
 
 Holloway v. Pollard, « Vide 2 Roll. Ab. 786. 
 
 Moor, 761. (M.) 
 
 E 3
 
 54 Bargain and Sale. 
 
 No use can be founded upon distinct pecuniary conside- 
 
 limited upon . 1 t • i 
 
 the estate of rat ions ; and, consequently, 1 conceive, there 
 
 the bargainee ; , , , . . , , 
 
 nor any future should be two mrollments. 
 
 use out of the 
 
 seisin of the 
 
 oS'operatioii (8.) A bargain and sale is one of those 
 ^lebvSanTin harmless conveyances, which operate merely 
 tail m tarty. u ^ on w h at t | ie g ran tor may lawfully convey. 
 
 It therefore cannot work a discontinuance", 
 create a forfeiture 5 , nor destroy contingent 
 remainders dependant upon a particular 
 estate*. But it is settled, that if a tenant in 
 tail convey in fee by bargain and sale, the 
 bargainee has a base fee determinable upon 
 the death of tenant in tail by the entry of 
 the issue". 
 
 Ceremonies re- (9.) The statute of inrollments requires, 
 statute of in- that the bargain and sale should be by deed 
 
 rollments. 
 
 £>' 
 
 indented'" ; and that the inrollment of the 
 deed should be in parchment* within six 
 lunar y months from the date 2 , if the deed 
 have a date ; but if not, then from thedeli- 
 very*. The inrollment may be made either 
 upon the day of the date b , or upon the last 
 
 ' Gilb. Uses, 297. Co. Salk. G19. See 1 Atk. 2. 
 
 Litt. 332. b. w See 3 Leon. 16, 17. 
 
 8 Gilb. Uses, 102. See s 2 Inst. 673. Dy. 218. 
 
 sir William Pelham's case, » 2 Inst. 674. Shep. T. 
 
 4 Leon. 123. 223. 
 
 4 Gilb. Uses, 140. Fearne, z Ibid. 
 
 472. 4th edit. Hard. 416. a Ibid. Hob. 140. 
 
 u Sevmour's case, 10 Co. b 2 Inst. 674. 
 95. Machill v, Clark, 2
 
 -Bargain and Sale. 
 
 55 
 
 day Of the Six months, reckoning the day Of Ceremonies re- 
 quired by the 
 
 tl i e d ate exclusively". statute of in- 
 
 rollments. 
 
 (10.)TheIes:al estate is vested in the bar- 0f the . rela f ion 
 
 t v 7 s of the lnroll- 
 
 gainee by the statute of uses upon the execu- nient t0 the de - 
 
 . . livery. 
 
 tiou of the deed ; but the statute of inroll- 
 ments obstructs the operation of the convey- 
 ance, until it be inrolled. The inrollment, 
 however, has, for most purposes, a relation 
 to the delivery of the deed d : and thereby 
 avoids all mesne incumbrances 6 , and con- 
 veyances*^ made by the bargainor between the 
 delivery and inrollment. A bargainee before 
 inrollment may be a good tenant to i\\e pra- 
 cipe for suffering a recovery g ; and if he die, 
 
 c Thomas v. Popham, 
 Dy.218. 
 
 d 2 Inst. 674. But in 
 Brook's Reading upon the 
 Statute of Limitations, 48. 
 it is said, " That a man 
 " sells his land by inden- 
 " ture after the statute, 
 " and before the inrollment 
 " the vendor is attainted of 
 " felony, committed after 
 " the bargain and before 
 " the inrollment; and after 
 " the deed is inrolled, with- 
 " in six months the lord en- 
 " ters for escheat, the ven- 
 " dee doth ouster him, and 
 " declares of a seisin by 60 
 " years, the lord may re- 
 " enter and retain, notwith- 
 " standing the statute; be- 
 " cause that the land is not 
 " vested in the vendee, until 
 " inrollment, and a matter of 
 
 " record shall not have rela- . 
 '' tion beyond the teste, and 
 " mesne acts vested shall 
 " not be devested : and it 
 " seemeth that this statute 
 " of limitations doth not 
 '* take away the right nor 
 " entry of none of his own 
 " proper seisin, but only his 
 '■' action, prescription, title, 
 •' and claim, of the seisin 
 " of his ancestors and pre- 
 " decessors ; and if the 
 " vendor die before inroll- 
 " ment the lord shall have 
 '* the ward." 
 
 e Mullery v. Jennings, 2 
 Inst. 674. See Flower v. 
 Baldwin, Cro.Car. 217. 
 
 f Thomas v. Popham, 
 Dy. 218. See Moor, 41. 4 
 Co. 71. a. 
 
 * 2 Inst. 675. Owen, 
 70. 
 
 E 4
 
 56 Bargain and Sale. 
 
 Of the relation his wife shall have dower, in case the deed 
 of the inroll- 
 ment to the de- be afterwards inrolled 1 ' ; but not so as to the 
 
 livery* 
 
 wife of the bargainor 1 . If there be two joint 
 tenants, and one of them bargain and sell 
 the estate in fee, and then the other die be- 
 fore the inrollment ; only a moiety shall pass 
 to the bargainee, though the deed be after- 
 wards inrolled k ; and though the words of 
 the bargain and sale comprise the whole 
 estate 1 . Sojfa bargain and sale be madeof 
 a manor with an advowson appendant, and 
 the church become void before the inroll- 
 ment, the bargainee shall have the present- 
 ment" 1 . 
 
 The bargainee of a reversion shall have 
 the rent incurred between the delivery and 
 inrollment of the deed" : but if the rent be 
 paid by the tenant to the bargainor, the pay- 
 ment is lawful, and the bargainor is not 
 compellable at law to account for it°. So if 
 a bargainee grant a rent before inrollment, it 
 is a good grant, if the deed be afterwards in- 
 rolled 11 . 
 
 h Cro. Car. 217. cont. ' Ow. 70. 
 
 Shep. T. 226. Ow. 70. 150. m Cro. Car. 217. See 2 
 
 { Shep. T. 227. Cro. Car. Buls. 8, 9. 
 
 569. n Latch. 157. 1 Sid. 310. 
 
 k Co. Litt. 186. a. Cro. ° Ow. 150. 69. Dy.218. 
 
 Car. 217. 569. Bro. Inr. Godh. 156. 
 
 pi. 9. p Cro. Car. 217.
 
 Bargain and Sale 57 
 
 A bargainee may receive a release from a Of the relation 
 
 & J ... of the inroll- 
 
 stranger before inrollment r ; but it is said, mem to the de- 
 
 livery. 
 
 that if a bargain and sale be made to A. and 
 B. and their heirs, and A. release to B. before 
 inrollment, such release is void 5 . So if a 
 disseisor bargain and sell the lands, and the 
 disseisee release to the bargainee before in- 
 rollment, the release is unoperative 1 ; but a 
 release to the bargainor will, in such case, 
 enure for the benefit of the bargainee". 
 
 But if a bargainee before inrollment con- 
 vey the estate by bargain and sale to another 
 person, and then inroll the first deed ; the 
 second bargain and sale is void, though it 
 should afterwards be inrolled w . So a lease 
 made by a bargainee before inrollment is not 
 valid*. 
 
 Though the inrollment has a relation to 
 the delivery of the deed, and thereby avoids 
 all mesne incumbrances and conveyances 
 made by the bargainor ; yet it does not divest 
 any estate lawfully settled in the bargainee in 
 the interim 7 ; therefore if a feoffment be 
 made, or fine levied by the bargainor to the 
 
 r 2 Inst. 675. 52. 409. See Perry v. 
 
 • Shep. T. 227. Bowes, 1 Vent. 360. T. 
 
 1 1 Roll. Rep. 425. Jones, 169. 
 
 n Mockett's case, Shep. x Cro. Car. 110. Carth. 
 
 T. 227. 178. 
 
 w Sir Robert Barker's » 4 Co. 71. a. Hynd's 
 
 case, Shep. T. 227. Bel- case, 
 lingham v. Alsop, Cro. Jac.
 
 58 Bargain and Sale. 
 
 of the relation bargainee before inrollment ; he shall take by 
 
 of the inroll- 
 ment tothede- the feoffment, or fine, and not by the bargain 
 
 and sale 2 . 
 
 (11.) By a provision in the statute of in- 
 rollinents, that act does not extend to here- 
 ditaments lying within any city, borough, or 
 town corporate, wherein the mayors, record- 
 ers, or other officers, have authority to inroll 
 deeds. A bargain and sale therefore of such 
 hereditaments operates to all purposes from 
 the date or delivery of the deed a . 
 
 (2.) By the statute 10 Ann. c. 18. s. 3. 
 after reciting, that "for supplying a failure 
 " in pleading or deriving the title to lands, 
 " tenements, or hereditaments, conveyed by 
 " deeds of bargain and sale, indented and in- 
 " rolled according to the statute made in the 
 " 27th year of the reign of king Henry the 
 " Eighth, for inrollment of bargains and 
 " sales, where the original indentures of bar- 
 " gain and sale to be showed forth or pro- 
 " duced, are wanting, which often happens* 
 " especially where divers lands, tenements, 
 " or hereditaments are comprised in the same 
 " indenture, and afterwards derived to dif- 
 ferent persons; be it further enacted, by 
 
 2 2 Inst. 671, 672. Shep. Grant, sec. 2. 
 
 T. 226. Northumberland's a See Chibborne's case, 
 
 case, Moor, 337- Popham's Dy. 229. Darly v. Bois, 
 
 case, 4 Leon. 4, Ante, tit. Yelv. 123.
 
 Bargain and Sale. 59 
 
 " the authority aforesaid, that where in any or the relation 
 
 -, ■. . . ! . of the inroll- 
 
 " declaration, avowry, bar, replication, or mem to the de- 
 
 " other pleading whatsoever, any such inden- lvery 
 
 " ture of bargain and sale inrolled, shall be 
 
 " pleaded with a profert in curia, or offer to 
 
 " produce the same, the person or persons so 
 
 " pleading, shall and may produce and show 
 
 " forth, and be suffered and allowed to pro- 
 
 "duce and show forth, by the authority of 
 
 " this act, to answer such profert, as well 
 
 " against her majesty, her heirs and succes- 
 
 " sors, as against any other person or per- 
 
 " sons, a copy of the inrollmeut of such bar- 
 
 u gain and sale; and such copy examined 
 
 11 with the inrollment, and signed by a proper 
 
 "officer, having the custody of such inroll- 
 
 " ment, and proved upon oath to be a true 
 
 " copy so examined and signed, shall be of 
 
 " the same force and effect, to all intents and 
 
 " constructions of law, as the said indentures 
 
 " of bargain and sale were and should be of, 
 
 " if the same were in such case produced and 
 
 " shown forth."
 
 (iO 
 
 LEASE and RELEASE. 
 
 Description of (1.) A release, enlarging an estate already 
 
 a release at the ■• • i • 1 i 11 /• 
 
 common law created, is a conveyance derived wholly from 
 
 by way of en- .1 ■ j • , • • 11 
 
 largement. the common law ; and it requires, in all 
 cases, privity of estate between the releasor 
 and releasee 3 . Thus if land be in the pos- 
 session of a lessee at will b , for life, or years , 
 there exists a privity of estate between him 
 and the lessor ; and the latter may execute a 
 release of his estate either to the lessee him- 
 self, or to his assignee 11 . So the person sei- 
 sed of the inheritance in reversion or re- 
 mainder, may release it to the tenant of the 
 freehold ; whether such tenant be by the cur- 
 tesy or in dower 6 , or for his own life, or for 
 that of another f . But a release of this kind 
 will not operate upon the possession of an 
 under-lessee 8 , or of a tenant at sufferance*, 
 by elegit, or statute merchant 1 . 
 
 a Co. Litt. 272. b. e Co. Litt. 273. a. Dy. 
 
 b Litt. sec. 460. 4. b. pi. 2. 
 
 c Ibid .465. h Co. Litt. 270. a. 27 1 . a . 
 
 d 2 Roll. Ab. 401. pi. 9. ' 2 Roll. Ab. 401. pi. 12. 
 
 Dy. 4. pi. 2. Co. Litt. 273. b. Shep. T. 
 
 e 2 Roll. Ab. 401. pi. 8. 324. 
 
 ' Co. Litt. 273. b.
 
 JLease and Release. 6\ 
 
 When no estate precedes the lesser estate Description of 
 . . . liii a re i ease at tne 
 
 intended to be enlarged by the release, anac- common law 
 
 7 ,i by way of en- 
 
 tual possession is necessary at the common i a rgem«it. 
 law to the operation of the release 1 ". But if 
 there be tenant for life, remainder for life, 
 with the reversion in fee; the person in rever- 
 sion may release to him in remainder for life 1 ; 
 for though he has no possession, yet he has 
 an estate actually vested in him. 
 
 (2.) The release, just described, was a introduction 
 
 , . and nature of 
 
 secondary conveyance, operating upon an es- the conveyance 
 tate origiually created without any reference Jase? 6 a " 
 to it. But in very early periods of our his- 
 tory, it was not unusual to execute a lease for 
 two or three years, completed by the actual 
 entry of the lessee, for the express purpose of 
 enabling him to receive a release of the inhe- 
 ritance ; and which was accordingly made to 
 him within a short time afterwards. Thelease 
 and release, executed in this manner, trans- 
 ferred the freehold of the releasor as effectu- 
 ally, as if it had been conveyed by fine or 
 feoffment. Whether the lesser estate were 
 merged, or whether it were merely enlarged 
 by the accession of the greater ; it certainly 
 did not exist separately from it. Thus a lease 
 for years, and a release founded upon it, had 
 the operatiou of one conveyance; and so far 
 
 k Co. Litt. 270. a. Litt. ' 2 Roll. Ab. 400. pi. 4, 
 
 sec. 459. 5. Co. Litt. 270. a.
 
 o'2 Lease and Helease. 
 
 introduction back as the reign of Henry the Fourth, they 
 
 and nature of . , 
 
 the conveyance are considered as equivalent to a feoffment in 
 
 by lease and re- . r 
 
 lease. passing the freehold" 1 . In the Year Book 21 
 
 Ed. 4. 24. the conveyance by lease and re- 
 lease is expressly mentioned. 
 
 An entry by the lessee for years was ne- 
 cessary to perfect his lease at the common 
 law. He could not receive a release, until he 
 had acquired the actual possession. It is 
 therefore probable, that the conveyance by 
 lease and release was not frequently adopted 
 before the statute of uses; because it was 
 nearly as inconvenient, and not so powerful 
 in its operation, as a feoffment with livery. 
 But soon after that statute, a conveyance, 
 differing only from the lease and release at 
 common law in the manner of creating the 
 previous estate for a year, but retaining the 
 same name, derived from the same principles, 
 and operating in the same manner, was intro- 
 duced, as it is said", by Serjeant Moore; a 
 conveyance, which has almost wholly super- 
 seded that by feoffment. 
 
 A bargain and sale being made for one 
 year upon a pecuniary consideration, the legal 
 estate is immediately vested in the bargainee 
 by the statute of uses. This bargain and sale 
 
 m See Year Book 11 143. pi. 4. and uote. 
 Hen. 4. 33. and also 5 Via. n See 2 Black. Coin. 339.
 
 Lease and Release. 63 
 
 does not require inrollment under the statute introduction 
 27 Hen. 8. c. 16. ; and it is now settled be- the conveyance 
 yond controversy, that the estate, vested in release? a " 
 the bargainee upon the execution of the deed, 
 is capable of receiving a release of the rever- 
 sion before or without an actual entry by him 1 . 
 A release, generally dated the day after the 
 bargain and sale, is accordingly made; and 
 thus an estate of freehold is transferred with- 
 out entry, inrollment, or livery of seisin? 
 
 (3.) Jt is immaterial to the operation of it operates by 
 
 transmutation 
 
 the release, whether the previous estate tor a of possession. 
 year be created by a bargain and sale under 
 the statute of uses, or by a lease at common 
 law, perfected by the entry of the lessee. In 
 either case the conveyance operates by trans- 
 mutation of possession. It transfers a seisin 
 to the releasee; and if the use be declared to 
 him, he takes an estate not by virtue of the 
 statute of uses, but in the course of possession 
 at the common law 11 . But if the use be de- 
 clared to any other person or persons, then it 
 is executed by the statute; and it is now usual 
 to make settlements of freehold estates by 
 lease and release; in which the limitations of 
 uses are frequently various and intricate. 
 
 8 2 Co. 36. a. 8 Co. 94. a. of Mr. Booth, 2 vol. of Cases 
 
 'Cro. Car.110.Cro. Jac. and Op. 281. 289. Seel 
 
 604. Carter, 66. vol. 91 , 92. 
 u See an excellent opinion
 
 G4 Lease and Release. 
 
 who may con- (4.) When the release is founded upon a 
 
 vey by it. / r 
 
 bargain and sale for a year, it is necessary, 
 that the person making the conveyance,should 
 be capable of standing seised to a use. But 
 if the releasor be incapable of standing seised 
 to a use, then the estate for a year should 
 be created by a lease at common law, ac- 
 companied by an actual entry on the part of 
 the lessee. 
 
 lease and re 
 lease 
 
 Operation of a (5.) The conveyance by lease and release, 
 like a bargain and sale, does not work a dis- 
 continuance w , nor create a forfeiture": nei- 
 ther can it destroy contingent remainders y . 
 
 whether there (q\ It has been doubted, whether there 
 
 can be a result- 
 ing use upon can be a resulting use in fee upon a convey- 
 
 a lease and re- 
 lease, ance by lease and release. 
 
 H. brought covenant as assignee of a re- 
 version, and showed that the lessor, in con- 
 sideration of five shillings, bargained and sold 
 to him for a year, and afterwards released to 
 him and his heirs, virtute quarundam indentur 
 bargainice venditionis ct relaxationis, iiecnonvi- 
 gore statuti de usibus, &c. he was seised in fee; 
 and it was objected, that the use must be in- 
 tended to be to the releasor and his heirs, 
 
 w Litt. s. 598. 606. y See Fearne, 473. 4th 
 
 x Litt. s. 600. eel.
 
 Ijease and Release. 65 
 
 because no consideration of the release, nor whether there 
 
 , , , , i t . _ can be a result- 
 
 express use, appeared by the pleading 2 . inguseupona 
 
 lease and re- 
 lease. 
 
 It was argued in this case*., that there 
 could be no resulting use on a lease and re- 
 lease : that nothing passes to the lessee in 
 possession, but by way of enlargement of his 
 estate ; that it does not operate to give a new 
 estate of the reversion, but to increase the 
 estate in possession, according to the words 
 of the release : that if the release ennre only 
 to enlarge the estate, the interest enlarged 
 must be to the use of the lessee, or it cannot 
 be said to be an increase of it : that if the 
 practice had not prevailed to the contrary, it 
 were very odd to limit the use of a release to 
 any but the lessee ; for which reason it is, 
 that we find it expressed in the clause in the 
 lease, on which the lessor intends to build his 
 release, that the intent of the lease was to pass 
 an estate by release upon it, for the benefit or 
 use of a third person : 
 
 That it would be absurd to say, that my 
 conveyance should have no other operation 
 but to extinguish or merge the estate, which 
 the grantee has already, in order to have it 
 brought back to me ; and what need could 
 there be of such a way ? If the party had 
 
 a Shortridge v. Lam- 71. 2 Ld. Raym. 798. 
 plugh, 2 Salk. 678. 7 Mod. a 7 Mod. 74. 
 
 VOL. II. F
 
 (JO Lease and Release. 
 
 whether there any such intent, it might soon be done by a 
 
 can be a result- _. 
 
 ing use upon a SUri'dlCier . 
 lease and re- 
 lease. 
 
 That if it had been expressed in the deed 
 of release, that he had already made him a 
 lease for years, and that for the enlargement 
 of that estate he made the release, there could 
 be no doubt, but that it would be to the use 
 of the releasee ; and there is no difference be- 
 tween the cases, since this release, in its own 
 nature, enures by way of enlargement: be- 
 sides, here is also a valuable consideration ; 
 for the lease and release being but one convey- 
 ance, the five shillings, expressed to be the 
 consideration of the lease, shall be partici- 
 pated to the release ; and also the acceptance 
 of the release is in its own nature a considera- 
 tion ; for it implies an alteration of the estate 
 of the lessee, which, to consent to, is a con- 
 sideration moving from the lessee; and the 
 only motive of the lessee's parting with the 
 old estate was to get a new one. 
 
 On the other side b it was urged, that be- 
 fore the statute 27 H. 8. c. JO. if A. made a 
 feoffment, levied a fine, or suffered a recovery 
 without a use declared, and without any con- 
 sideration, the feoffee, conuzee, and recoveror 
 stood seised of the said lands to the use of 
 
 2Ld. Raym. 800.
 
 Lease and Release. 67 
 
 A. : that since the statute of H. 8. the law as whether there 
 
 , . . . . 1 can be a result- 
 
 to this matter is not altered : for the said sta- in g use upon a 
 
 1 • i i i i lease and re- 
 
 tute only intended to execute the use to the lease. 
 possession, and by that means to destroy the 
 use ; but it did not intend to make any other 
 thing- pass by the conveyance, than that which 
 passed before : that there was the same reason, 
 that the use should not pass in a release with- 
 out any consideration, or express declaration, 
 as in a feoffment, line, and recovery : 
 
 To the objection, that this release enured 
 by way of enlargement of the lease for a year, 
 and therefore would participate of the con- 
 sideration of it, and that the lease and release 
 made but one conveyance, it was answered, 
 that though the lease and release made but 
 one conveyance as to the passing of the fee, 
 yet they were in truth distinct conveyances, 
 and had different operations, the one by the 
 statute of uses, and the other by the common 
 law: that as to what is said, that the release 
 enures by way of enlargement of the estate of 
 the lessee, it is true, that it gives him a greater 
 estate than he had before ; but that notwith- 
 standing it destroys the estate for years by 
 merger; and it cannot participate of the con- 
 sideration contained in the lease, which is per- 
 fectly distinct. 
 
 F 2
 
 68 Lease and Release . 
 
 whether there However, Holt, C. J. without considering 
 
 can be a result- . . . , . 
 
 inguseupona the operation of the conveyance , maintain- 
 lease. ed, that the manner of pleading the release as 
 
 above, to the releasee, was good ; and that if 
 a feoffment be pleaded in the same manner, 
 without showing the use or consideration, 
 with an averment virtute cujus the feoffee was 
 seised, the use shall be intended to be to the 
 feoffee : and that was the form of pleading 
 before the statute, and the statute has not 
 altered, but rather confirmed, this manner of 
 pleading. 
 
 Lord Hardwicke, in the case of Lloyd v. 
 Spillet d , considered the conveyance by lease 
 and release exactly in the same light, as that 
 by feoffment with respect to a resulting use; 
 and though he held, that either an express de- 
 claration, or consideration however trifling, 
 would carry a use to the releasee, yet the 
 whole tenor of his argument gives reason 
 to believe, that he took it to be a settled point, 
 that without the one or the other the use 
 would result to the releasor 6 . 
 
 Supposing a release to be made to a lessee 
 for years, whose estate was not originally 
 created with a view of receiving such re- 
 lease, there can be no doubt, that the releasee 
 
 c See 2 Salk. G78. e See Lil. Con. 233. 1 
 
 d Barn. Cha. Rep. 384. Wood's Con. 776. and note, 
 2 Atk. 148. 2 Doug. 745.
 
 Lease and Release. 69 
 
 would be entitled to the use and legal estate ; whether there 
 because the intention of the parties and the "gusVupona 
 purposes of the release would be entirely J**** 11 
 frustrated, if the use should result to the re- 
 leasor. But when a lease, or bargain and sale 
 for a year, is made for the express purpose of 
 receiving a release, they must be considered as 
 one conveyance, operating by way of trans- 
 mutation of the possession or seisin to the 
 releasee ; and admitting, that the doctrine of 
 resulting uses was introduced in order to re- 
 gulate and carry into effect the intention of the 
 parties, and that the payment of a pecuniary 
 consideration, however inconsiderable, was a 
 criterion of such intention, I cannot see how 
 the conveyance by lease and release can in this 
 respect differ from that by feoffment, fine, or 
 recovery. In the above case of Shortridge v. 
 Lamplugh, both Holt and Powell agreed f , 
 that if a particular use were limited on the 
 release, the remainder would result. Why ? 
 Because such construction would favour the 
 intention. The notion of resulting uses was 
 adopted for that very purpose. 
 
 (7.) It is necessary at the common law, 
 that an exchange or a partition should be com- 
 pleted by an actual entry g . But it is now 
 usual to make an exchange by a bargain and 
 sale for a year, and a release grounded upon 
 
 ' 7 Mod. 77. * See Co. Litt. 266. h. 
 
 f3
 
 70 .Lease and Release. 
 
 whether there it; and if joint-tenants or tenants in common 
 
 can be a result- . ! i ■ i 
 
 ing use upon a concur in a conveyance by lease and release, 
 lease. and rc and thereby transfer the entire seisin to the 
 releasee, they may effectuace a partition by 
 limiting the uses of the specific allotments. 
 It is unnecessary to observe, that in all these 
 cases the possession is executed by the statute 
 without, or before, entry. 
 
 Where exchanges are effected by the 
 means of powers operating under the statute 
 of uses, there can be no implied right of en- 
 try on eviction, as on an exchange at common 
 law, because the right of entry must be de- 
 scendible to the heir, and not transmitted 
 from cestuique use to cestuique use in suc- 
 cession ; and the entry by cestuique use for 
 life could not acquire for him a fee-simple as 
 of his old estate. 
 
 It may be doubted, whether a proviso in- 
 serted in an exchange under power for shift- 
 ing the use in case of eviction would not be 
 void ; for each party would take an estate 
 subject to a springing use, which could not 
 be defeated by the owners of the estate sub- 
 ject to it : and this would probably be consi- 
 dered too remote, and as amounting to a 
 perpetuity. See 1 vol. 194, et seq.
 
 71 
 
 AN 
 
 APPOINTMENT. 
 
 (1) We must distinguish between an ap- Description of 
 
 iiii • p mi an appoint- 
 
 pointment and the declaration ot a use. Ine ment. 
 latter is that original disposition of the use 
 by the express consent of the parties, which 
 prevents it from following any implied desig- 
 nation, which the rules of law might other- 
 wise prescribe : but the former is a limitation 
 of the use by a separate instrument derived 
 from, and conformable to, a power reserved, 
 or contained, in the original conveyance, by 
 which the seisin to serve those uses is trans- 
 ferred. The limitation of uses thus made un- 
 der the power must necessarily alter, abridge, 
 or suspend the use previously declared upon 
 such original conveyance. Such are the 
 powers usually reserved in settlements of 
 leasing, jointuring, selling, exchanging, and 
 charging h . 
 
 (2.) Every appointment, when made im- The nature of 
 mediately to the appointee, must consequently ^redty XT'" 
 
 appointment. 
 h See ante, 1 vol. ch. 2. s. 5. (8.) 
 
 F4
 
 72 
 
 The nature of 
 the estate trans 
 ferred by the 
 appointment. 
 
 An Appointment, 
 
 vest the use or legal estate in him ; and there- 
 fore if A. in pursuance of a power limit an 
 estate to B. to the use of C, the use to C. 
 cannot be executed by the statute. But as 
 the use, under an appointment, is served out 
 of the original seisin of the feoffees or re- 
 leasees to uses, it is capable of the same mo- 
 difications, as the use declared upon the ori- 
 ginal conveyance. Suppose a feoffment or 
 lease and release made to J. S. and his heirs, 
 to such uses as A. B. shall appoint, and in de- 
 fault of and until appointment, to certain uses 
 therein declared. A. B. in pursuance of his 
 power, appoints, that J. S. and his heirs shall 
 stand seised to the uses following; viz. to the 
 use of himself for life, remainder to trustees 
 to preserve contingent remainders; remainder 
 to his first and other sons in tail. The use in 
 this case will be executed in A. B., and the 
 trustees to preserve, &c. immediately ; and in 
 the sons, when they are born. 
 
 As to the ne- 
 cessity of recit- 
 ing the power. 
 
 (3.) When a person may dispose of an es- 
 tate either under a power of appointment, or 
 as the absolute owner of it, it is necessary, if 
 he wish to convey in pursuance of the ap- 
 pointment, that the power should be recited 
 or referred to : but when a disposition cannot 
 take effect but as an appointment or limita- 
 tion of the use, then there is no absolute ne- 
 cessity that the appointer should notice the
 
 An Appointment. 73 
 
 power, nor convey in pursuance of it 1 . Thus As to thene- 
 
 n* i /» /v cessity of recit- 
 
 if A. make a feoffment, levy a fine, suffer a in g the power. 
 recovery, or convey by lease and release to B. 
 and his heirs to such uses, as A. shall by deed 
 or will appoint, and in default of such ap- 
 pointment, to the use of A. in fee ; as A. in 
 this case may appoint the land, or dispose of 
 it as the legal proprietor, if he make his will, 
 and without referring to or reciting the power, 
 devise the land generally, the will must take 
 effect as a devise of the land, and not as a 
 disposition of the use k . Lord Coke, indeed, 
 makes a distinction between a feoffment to 
 such uses as the feoffor shall by his last will 
 appoint, and to the use of the feoffors last 
 will; for with respect to the latter he says, 
 that if the feoffor make his will with reference 
 to the power, yet it shall take effect by virtue of 
 the devise, and not as a limitation of the use 1 . 
 
 (4.) The instrument, executing the a p- of the instru- 
 ment executing 
 
 pointment, must be accompanied with all the the power. 
 ceremonies required by the power; such as 
 sealing, signing, and the attestation of wit- 
 nesses. The deed itself, being merely the 
 limitation of a use served out of a seisin 
 transferred by another deed, cannot be consi- 
 dered as an independent conveyance. It is 
 
 4 See 12 Mod. 469. An- k Co. Litt. 111. b. 112. 
 
 drews v. Emraot, 2 Bro. a. 6 Co. 18. a. 
 
 297. Lawson v. Lawson, ' Har. Co. Litt. 112. a. 
 
 3 Bro. 272. n. 2. Moor, 280.
 
 74 An Appointment. 
 
 oftheinstm- an instrument inapplicable to the transfer of 
 
 tnent executing . ■ . ■ , 
 
 the power. property by a person conveying as the abso- 
 lute proprietor. Yet an appointment may 
 be, and frequently is, executed by a convey- 
 ance, which, if not expressly or impliedly re- 
 ferring to the power, would operate upon the 
 legal estate. Thus if releasees to uses in 
 pursuance, and by virtue, of a power of sell- 
 ing and exchanging, reserved to them, con- 
 vey by lease and release; the conveyance shall 
 operate as a disposition of the use : and in a 
 case, where land was devised to B. for life, 
 with a power to dispose of the fee to any of 
 her children ; it was determined, that a con- 
 veyance by lease and release by B. to the use 
 of herself during her life, with remainder to 
 the use of her children, was an effectual exe- 
 cution of the power" 1 . Appointments, how- 
 ever, made in this manner, are always in- 
 formal. 
 
 of the relation (5.) It is generally true, that a use li- 
 men b t e totheori- mited D Y virtue of a P ower of appointment 
 fnce 1 convej " has relation to the conveyance, in which the 
 power is contained". Therefore, if an estate 
 be limited to the use of such persons as a 
 purchaser shall appoint, and in default of 
 appointment to the use of the purchaser and 
 his heirs ; until the purchaser exercise the 
 
 m See Toralinson v. Salk. 239. 
 Dighton, 1 P. W. 149. n See 1 Atk. 560. note 2.
 
 An Appointment. 7f> 
 
 power, he is seised of a base and qualified of the relation 
 
 , . _ of the appoint- 
 
 fee, liable to be defeated by the execution otmenttotheori- 
 
 , ., . . , , . ginal convey- 
 
 it ; and if he die without making any ap- ance. 
 pointment, his wife will be clearly entitled 
 to her dower; but if he exercise his power, 
 then a new use springs up, which entirely de- 
 feats the intermediate use limited in default 
 of the appointment, and of course destroys 
 the wife's right to dower". So if an estate 
 be conveyed to the use of A. for life, with 
 many remainders over, and a power be re- 
 served to A. to make leases, or a jointure 
 upon an after-taken wife ; when A. exercises 
 his power it takes effect by way of limitation 
 of a use, which entirely overreaches and takes 
 precedence of the other uses interfering with 
 it . 
 
 Upon the same principle, if there be a li- 
 mitation of a use to A. for life, and after his 
 decease to such uses as B. shall appoint, who 
 afterwards in A.'s lifetime appoints the use to 
 the right heirs of A.; in this case it seems, 
 that the limitation of the use to the right 
 heirs of A. by virtue of the appointment 
 unites with the life estate of A. so as to make 
 the right heirs take by descent, and not by 
 way of a contingent remainder*. In cases 
 
 n Vide 1 vol. 154. er ■ See 1 P. W. 246. and 
 
 seq.; and see Maundrell v. 1 vol. 165, et seq. 
 
 Maundrell, 7 Ves. 567. 10 v See Fearne, 99, 100. 
 
 Ves. 246. ed. 4.
 
 '° An Appointment. 
 
 of iho relation like this, care should be taken to appoint the 
 
 of the appoint- - ' l 
 
 inant to the ori- use immediately to the right heirs; therefore 
 
 ginal convey- . 
 
 ance. if B. make an appointment to C. in fee, to 
 
 the use of the right heirs of A. ; the legal es- 
 tate or use is vested in C. by the appointment, 
 and the right heirs of A. take only an equi- 
 table estate or trust. In this case the legal 
 estate for life of A. cannot be incorporated 
 with the equitable one limited to his right 
 heirs; and consequently the remainder to his 
 right heirs is contingent. 
 
 In some cases, however, an appointment 
 does not relate back in point of time to the 
 instrument, by which it is created. Thus in 
 the case of the duke of Marlborough v. lord 
 Godolphin q , where lord Sunderland by his 
 will gave the interest of 30,000/. to his wife 
 during her life, and after her decease the prin- 
 cipal to be distributed among such of his 
 children, and in such manner and proportion 
 as she by any deed, or will, or instrument, or 
 writing in nature of a will, should direct and 
 appoint : she, by her will reciting the power, 
 gave 1. 5,000 Z. to lady Morpeth, and 2000/. to 
 Mr. Spencer, who both died in the lifetime of 
 the testatrix : the question was, whether the 
 appointment had a relation back to the time 
 of the death of lord Sunderland, when the 
 instrument, which created the power, took 
 
 i 2 Ves. Gl.
 
 An Appointment. 77 
 
 effect; for if it had, then the legacies given f the relation 
 to lady Morpeth and Mr. Spencer must be ^nttoTeori- 
 considered as having become vested in them f'"!, 1 convey " 
 during their lives. But lord Hardwicke said, 
 that nothing vested in them during their 
 lives, and consequently that nothing was 
 transmissible to their representatives ; because 
 every person, claiming under the execution 
 of a power, must claim not only according to 
 the execution of the power, but according to 
 the nature of the instrument, by which that 
 power is executed ; and therefore a will, in 
 execution of such a power, being always re- 
 vocable, it is not complete till the death of 
 the testatrix r . 
 
 (6.) By virtue of a power of appointment of appoint 
 
 . . , „, ments to un- 
 
 a person may, in a certain degree, effectuate bom children. 
 a remote limitation, which, if placed in the 
 original deed, would be considered as tending 
 to a perpetuity, and therefore void. Thus if 
 there be a limitation to B. for life, who at that 
 time has no son, with a general power re- 
 served to him to limit the uses in remainder to 
 such persons, as he shall appoint ; here upon 
 the birth of a son of the tenant for life, the 
 use may be limited to such first son/or life, 
 remainder to his first and other sons in strict 
 settlement; notwithstanding the persons, to 
 whom the estates are appointed, were not in 
 
 See 1 Ves. 139. 2 Ves. 612. Lisle v. Lisle, 1 Bro. 533.
 
 78 An Appointment 
 
 of appoint- existence at the time of the execution of the 
 
 merits to un- • • • ■ , * • . . -, 
 
 bom children, conveyance, in which the power is contained. 
 But when the duke of Marlborough gave a 
 power to trustees by his will, on the birth of 
 the sons of the tenant for life, therein named, 
 to revoke the uses limited to those sons in tail, 
 and to limit the uses to such sons for life, re- 
 mainder to the first and other sons of such 
 sons severally and successively in tail male; it 
 was holden, that this power, as it tended to 
 a perpetuity, was void s . It should seem, 
 however, that if an estate be settled to the 
 use of B. for life, with a power of appointing 
 to his children, he may afterwards appoint an 
 estates/or life to a child unborn at the time 
 of the creation of the power, though he can- 
 not extend such appointment to the children 
 of such child*. 
 
 See 5 Bro. P. C. 592. vol. Cases and Opinions, 
 See Mr. Booth's op. 2 439.
 
 79 
 
 COVENANT 
 
 TO STAND SEISED TO USES. 
 
 (1.) Uses may be raised either upon a pec u- Description of 
 
 . , . . • , • ilia covenant to 
 
 niary consideration, or upon what is called a £ta nd seised. 
 good consideration, which is that of blood or 
 marriage. Whatever be the form of the con- 
 veyance creating and transferring a use upon 
 the former consideration, it is a bargain and 
 sale, and must be inrolled as such ; but con- 
 veyances, raising uses upon, or by virtue of, 
 the latter, are termed covenants to stand seised; 
 and they are not within the words of the sta- 
 tute of inrollments, nor within the policy of 
 it a ; because the consideration of blood and 
 marriage is of a public nature. 
 
 (2.) The consideration of this conveyance What words n( 
 is the foundation of it. The words covenant cessary ■ 
 to stand seised, are therefore not absolutely 
 necessary to its operation. A conveyance in 
 
 a See Plowd. 307.
 
 80 Covenant to stand seised to Uses. 
 
 vvhatwordsne the form of, and void as a grant* 5 , feoffment', 
 
 cessary. 
 
 or release , may still take effect as a covenant 
 to stand seised. 
 
 In practice, the following case occasionally 
 occurs. An estate, being settled upon A. for 
 life, with remainder to the use of trustees and 
 their heirs during his life, in trust to support 
 contingent remainders, with remainder to the 
 first and every other son of A. successively 
 in tail, with remainders over ; A., in order to 
 enable his eldest son to suffer a common 
 recovery, by deed, not operating as a feoff- 
 ment, bargain and sale, or lease and release, 
 surrenders to his son his estate for life. This 
 deed cannot operate in strictness as a sur- 
 render, on account of the intervening estate 
 of the trustees ; but it is the prevailing opi- 
 nion of the profession, that it will operate 
 as a covenant to stand seised ; and the va- 
 lidity of many titles depends upon this con- 
 struction 6 . 
 
 Consideration. (3.) It may be deemed an invariable rule, 
 that uses can only be raised upon a covenant 
 to stand seised in consideration of blood or 
 
 b See 2 Vent. 150. e See Crossing v. Scuda- 
 
 c See Doe v. Simpson, 2 more, 1 Vent. 137. 2 Lev. 
 
 Wils.22. 9. 22 Vin. 241. pi. 9. and 
 
 d Brown v. Jones, 1 Atk. Sympson v. Keyles, cited 
 
 188. Roe v. Tranmer, 2 T. Raymond, 48, 49. 
 
 Wils. 75.
 
 Covenant to stand seised to Uses. 81 
 
 marriage'. Thus affection for the heirs male Consideration. 
 of the covenantor, which he shall beget, bro- 
 therly love, and a desire that land should 
 continue in the covenantor's name and blood, 
 are all good to raise uses by way of covenant*. 
 
 We are to observe, that if the considera- 
 tion appear, though it be not particularly ex- 
 pressed, yet it is sufficient to raise a use upon 
 this conveyance. Therefore if a man cove- 
 nant to stand seised to the use of his wife, 
 son, or cousin, without saying in considera- 
 tion of the natural love, which he bears to- 
 wards them, the covenant will raise the use 1 '. 
 So if a man, in consideration of natural love 
 to his eldest son, covenant to stand seised to 
 the use of such eldest son in tail, and after- 
 wards to the use of his younger sou, the con- 
 sideration extends to the latter 1 . If a man, 
 in consideration of affection to a son or bro- 
 ther, covenant to stand seised to the use of 
 such son or brother, and his wife, the cove- 
 nant raises the use for the wife* 1 ; or if a man, 
 in consideration that B. will marry his 
 
 f 2 Black. Com. 338. " to the consideration ; for 
 
 Cart. 139. Moor, 505. " she bore all her heirs in 
 
 * Plowd. 309. 2 Roll. " herself." Per Raymond, 
 
 Ab. 785. See the several C. J. in Goodtitle v. Pettoe, 
 
 cases collected in 22 Vin. Fitzg. 299. 
 194. to 204. " If the use " 7 Co. 40. in Bedell's 
 
 " had been to the wife, ami case, 2 Wils. 22. 
 "her heirs, it would have ' Ibid. 2 Roll. Ab. 782. 
 
 " been good ; for it could pi. 3. 
 
 " not be said, that the heirs k 2 Roll. Ab. 784. pi. 3. 
 
 " of the wife were strangers 783. pi. 1 
 
 VOL. II. G
 
 82 Covenant to stand seised to Uses. 
 
 Coaiidemtion. daughter, covenant to stand seised to the use 
 of hoth, it is sufficient to carry the use to 
 them accordingly 1 . 
 
 But if a covenant be made to stand seised 
 to the use of a person, related to the cove- 
 nantor by blood or marriage, and of a 
 stranger, the whole use will vest in the rela- 
 tion 1 ". Yet it is said, in Sheppard's Touch- 
 stone", that if I covenant with B. in consi- 
 deration of the marriage of my son with his 
 daughter, to stand seised to the use of R. (a 
 stranger) for life, and after to the use of my 
 son and his wife; in this case the use shall 
 be executed in R. the stranger, because the 
 remainder cannot be supported without a 
 particular estate. 
 
 It seems, that if a man in consideration 
 of money, and also of marriage, covenant to 
 stand seised, the use will arise on the latter 
 consideration only; and, consequently, if the 
 marriage do not take effect, the use will 
 never vest; though the money be actually 
 paid . So a consideration consistent with 
 the deed, or the considerations expressed in 
 it, may be averred 9 . 
 
 As to the considerations of friendship, 
 long acquaintance, of being school-fellows, 
 
 1 2 Roll. Ab. 784. pi. 2. 8 Moor, 102. 
 
 4. p 7 Co. 40. a. 2Roll.Ab. 
 
 m Ibid. pi. 4. 790. 
 
 n Shep. T. 513.
 
 Covenant to stand seised to Uses. 83 
 
 affection to a natural son, and that the king ConsideiaUou. 
 is head of the commonwealth; they will not 
 raise uses by way of covenant to stand seised q . 
 
 It is scarce necessary to notice, that if a 
 man covenant to stand seised to the use of 
 himself for life, with remainders over to his 
 relations, and with a power for the tenant 
 for life to make leases ; this power is void, 
 and cannot be exercised as the limitation of a 
 use r . So if a man should covenant to stand 
 seised to the use of himself for life, with re- 
 mainder to the use of trustees (who are not 
 his relations), for the purpose of preserving 
 contingent remainders, with remainder to his 
 first and other sons in tail, &c. : no use would 
 vest in the trustees ; because the consideration 
 does not extend to them. This is a principal 
 reason why covenants to stand seised are fal- 
 len into disuse. 
 
 (4.) In order to render a covenant to A v , ested estata 
 
 s ' in the cove- 
 
 Stand seised effectual, the covenantor should nautor - 
 
 have a vested estate in possession, reversion, 
 
 or remainder. Therefore a covenant to stand 
 
 seised of land, which the covenantor shall 
 
 afterwards purchase, is void 3 . It is said, that 
 
 •» See Plowd. 302. 2 Goodtitle v. Pettoe. Fitz- 
 
 Roll. Ab. 783. Co. Litt. gib. 299. 
 123. n. 8. 2 Co. 15. a. b. ' Moor, 342. Cro. El. 
 
 r 2 Roll. Ab. 2G0. Cro. 401. 2 Roll. Ab. 790. pi. 
 
 Jac. 181. So as to a gene- 8. 
 ral power of appointment, 
 
 G -2
 
 84 Covenant to stand seised to Uses. 
 
 ,\ vested estate if a joint-tenant covenant to stand seised of 
 
 in the cove- . . . . . 
 
 nantor. the moiety ot his companion alter his death, 
 
 it is void; although the covenantor survive*. 
 
 The operation (5.) This conveyance, when made by a te- 
 nant in tail, cannot produce a discontinuance ; 
 and when made by a tenant for life, will not 
 create a forfeiture; neither will it destroy 
 contingent remainders depending upon such 
 life-estate. 
 
 1 2 Roll. Ab. 790. pi. 9.
 
 85 
 
 FEOFFMENT. 
 
 This Indenture of three Parts, made this Feoffment with 
 first day of February, in the year of our Sty? war 
 Lord Christ one thousand seven hundred 
 and ninety-nine, and in the thirty-ninth year 
 of the reign of our sovereign Lord George 
 the Third, by the grace of God, of Great 
 Britain, France, and Ireland, king, defender 
 of the faith, &c. Between Andrew Akers of, Feoffor. 
 &c. of the first part, Benjamin Brown of, &c. Feoffee. 
 of the second part, and Charles Chivers of, Attorney to de- 
 &c. of the third part; toitne$m\) f That i n livcr SLishl> 
 consideration of the sum of £ of 
 
 lawful money of Great Britain to the said A. 
 Akers in hand paid by the said Benj. Brown 
 at or before the sealing and delivery of these 
 presents, the receipt of which said sum of 
 £ he the said A. Akers doth hereby 
 
 acknowledge, and of and from the same, 
 and every part thereof, doth acquit, release, 
 g 3
 
 8(5 Feoffment. 
 
 and discharge the said B. Brown, his heirs, 
 executors, administrators, and assigns, and 
 every of them, for ever by these presents; He 
 the said A. Alters Hath granted, aliened, 
 enfeoffed, and confirmed, and by these pre- 
 sents Doth grant, alien, enfeoff, and confirm 
 unto the said Benjamin Brown, his heirs and 
 assigns, All those pieces or parcels of land, 
 common words. &c. &c. And also all woods and underwoods, 
 timber and other trees, mounds, hedges, 
 ditches, fences, ways^ paths, passages, water, 
 water-courses, easements, advantages, and ap- 
 purtenances to the said pieces or parcels of 
 land and hereditaments, or auy of them, or 
 any part thereof, belonging or in any wise ap- 
 pertaining, or to or with the same, or any of 
 them, or any part thereof, now or at any time 
 heretofore usually held, occupied, or enjoyed, 
 or accepted, deemed, taken, or known, as part, 
 parcel, or member thereof; and all the estate, 
 right, title, interest, property, claim, and de- 
 mand whatsoever, both at law and in equity, 
 of him the said Andrew Akers in, to, or 
 Habendum. out of the same, and every part thereof; Co 
 lvalue anJJ to ?i?oHi the said pieces or parcels 
 of land, hereditaments, and other the pre- 
 mises hereby granted and enfeoffed, or in- 
 tended so to be, with the appurtenances, unto 
 the said Benjamin Brown, his heirs and as- 
 signs, to the only use and behoof of the said 
 Benjamin Brown, his heirs and assigns, for 
 ever. And the said Andrew Akers hath
 
 Feoffment. 87 
 
 granted for himself, his heirs, executors, and 
 
 assigns, That he the said Andrew Akers, and General war- 
 
 . . rant y- 
 
 his heirs, all and every the said lands, heredi- 
 taments, and premises above granted and 
 enfeoffed, or intended so to be, unto the said 
 Benjamin Brown, his heirs and assigns, 
 against him the said Andrew Akers, his heirs 
 and assigns, and against all and every other 
 person and persons whomsoever, shall and 
 will warrant and for ever defend by these pre- 
 sents. And the said Andrew Akers hath no- Letter of attor- 
 minated, constituted, and appointed, and by ' 
 these presents doth nominate, constitute, and 
 appoint the said Charles Chivers his true and 
 lawful attorney, for him and in his name and 
 stead, to enter into, and take full, quiet, and 
 peaceable possession and seisin of, all and sin- 
 gular the above-mentioned premises, or some 
 part thereof in the name of the whole, and 
 then to deliver full, quiet, and peaceable pos- 
 session and seisin of all and singular the pre- 
 mises, or some part thereof in the name of 
 the whole, unto the said Benjamin Brown, or 
 to his attorney in that behalf lawfully autho- 
 rized, according to the form and effect, and 
 true intent and meaning of these presents. 
 In witness, &c. 
 
 c 4
 
 88 Feoffment. 
 
 &c it Ucmtmtttctft That on ^ 
 this day of in the 
 
 year first within written, full and 
 peaceable possession and seisin 
 were had and taken by the within 
 named Charles drivers of the 
 lands and hereditaments within 
 mentioned to be granted and en- 
 feoffed, and were in the name of 
 the within mentioned Andrew 
 Akers delivered by the said Chas. 
 Chivers to the within named Ben- 
 jamin Brown ; To Hold the same 
 unto the said Benjamin Brown, 
 his heirs and assigns for ever, ac- 
 cording to the form and effect, 
 and true intent and meaning of 
 the within written Indenture, in 
 the presence of
 
 A Feoffment. 80 
 
 A MODERN FEOFFMENT, 
 
 With Covenant to levy a Fine. 
 
 This Indenture of five Partis, made this 
 first day of May, in the year of our Lord 
 one thousand eight hundred and thirteen, 
 Between Andrew Akers of, &c. and Ann his 
 wife, of the first part; Benjamin Brown of, 
 &c. of the second part ; Charles Chivers of, 
 &c. of the third part ; David Beacon of, &c. 
 of the fourth part, and Evan Egan of, &c. of 
 the fifth part. 
 
 Wfyttesi* the said Benjamin Brown hath 
 contracted with the said Andrew Akers for 
 the absolute purchase of the hereditaments 
 hereinafter described and intended to behere- 
 by granted and enfeoffed, and the inheritance 
 thereof in fee-simple, free from incumbrances, 
 at or for the price or sum of £ 
 
 iioto ttjia jQitomtuve miitm$m% That 
 
 in pursuance of the said recited contract, and 
 in consideration of the sum of £ of lawful 
 money of Great Britain to the said Andrew
 
 !,»(') A Feoffment, 
 
 Akers in hand paid by the said Benjamin 
 Brown, at or before the sealing and delivery 
 of these presents, the receipt of which said 
 sum of £ he the said Andrew Akers doth 
 hereby acknowledge, and of and from the 
 same, and every part thereof, doth acquit, re- 
 lease, and discharge the said Benjamin Brown, 
 his heirs, executors, administrators, and as- 
 signs, and every of them, for ever by these 
 presents ; they the said Andrew Akers, and 
 Ann his wife, Have, and each of them Hath, 
 granted, aliened, enfeoffed, and confirmed,and 
 by these presents Do, and each of them Doth, 
 grant, alien, enfeoff, and confirm unto the 
 said Benjamin Brown and his heirs, £Ul those 
 pieces or parcels of land, &c. ££nfr al0O all 
 woods, underwoods, timber and other trees, 
 mounds, fences, hedges, ditches, paths, pas- 
 sages, waters, water-courses, easements, ad- 
 vantages, and appurtenances to the said pieces 
 or parcels of land and hereditaments respec- 
 tively belonging, or in any wise appertaining, 
 or with the same, or any of them, or any part 
 thereof, now, or at any time heretofore, usually 
 held, occupied, or enjoyed, or accepted, re- 
 puted, deemed,taken,orknown aspart,parcel, 
 or member thereof; &tt& all the estate, right, 
 title, interest, use, property, claim and demand 
 whatsoever at law and in equity of the said 
 Andrew Akers and Ann his wife, and each of 
 them, in, to, and out of the same premises, 
 and every pari thereof; &nfc all deeds, evi-
 
 with Covenant to levy a Fine. 01 
 
 dences, and writings relating to, or in any 
 wise concerning, the said pieces or parcels of 
 land and hereditaments, or any part thereof, 
 now in the custody or power of the said An- 
 drew Akers, or which he can obtain, or pro- 
 cure, without suit at law or in equity: %& Habendum. 
 fjato an& to f)0lft the said pieces or parcels of 
 land and hereditaments hereinbefore de- 
 scribed, and expressed to be hereby granted 
 and enfeoffed, with their rights, members, and 
 appurtenances, unto the said Benjamin Brown 
 and his heirs for ever ; $lt'®t rtfjelegg, To the To uses to bar 
 
 /. , pi dower. 
 
 use of such person or persons, for such es- 
 tate or estates, interest or interests, and to 
 and for such intents and purposes, and sub- 
 ject to such powers, provisoes, declarations, 
 and agreements, or without being so subject, 
 and in such manner and form as the said 
 Benjamin Brown by any deed or deeds, in- 
 strument or instruments, in writing, with or 
 without power of revocation and new appoint- 
 ment, to be sealed and delivered by him, in 
 the presence of, and attested by, two or more 
 credible witnesses, shall from time to time or 
 at any time direct, limit, or appoint ; and in 
 default of, and until such direction, limita- 
 tion, or appointment, and as to such part and 
 parts of the premises, of which there shall be 
 no such direction, limitation, or appointment, 
 or to which no such direction, limitation, or 
 appointment shall extend; To the use of the 
 said Benjamin Brown and his assigns during
 
 92 A Feoffment, 
 
 the term of his natural life, without impeach- 
 ment of waste ; and from and after the de- 
 termination of that estate by any means in 
 his lifetime, To the use of the said Charles 
 Chivers and his heirs, during the life of the 
 said Benjamin Brown, In trust, nevertheless, 
 for the said Benjamin Brown and his as- 
 signs ; and from and after the determination 
 of the estate, so limited in use to the said 
 Charles Chivers and his heirs, during the life 
 of the said Benjamin Brown, To the use of 
 the said Benjamin Brown, his heirs and as- 
 signs for ever. 
 
 Covenant to 
 levy a line. 
 
 Slttfl, for the consideration hereinbefore 
 expressed, the said Andrew Akers doth here- 
 by for himself, his heirs, executors, and ad- 
 ministrators, covenant, promise, and agree to 
 and with the said Benjamin Brown and his 
 heirs, that they the said Andrew Akers, and 
 Ann his wife, shall and will, at the costs and 
 charges of the said A. Akers, his heirs, ex- 
 ecutors, or administrators, in or as of this 
 present Easter Term or before the end of 
 Trinity Term next ensuing, acknowledge 
 and levy in due form of law in his Ma- 
 jesty's Court of Common Pleas at West- 
 minster, before the justices of the same court, 
 unto the said Benjamin Brown and his heirs, 
 one or more fine or fines sur conuzance cle droit 
 com ceo, &c. with proclamations to be there- 
 upon had and made according to the form of
 
 with Covenant to levy a Fine. 93 
 
 the statute in that behalf made and provided, 
 and the usual course of fines with proclama- 
 tions for the assurance of lands in such cases 
 used and accustomed, of the said pieces or 
 parcels of land and hereditaments hereinbe- 
 fore described, and expressed to be hereby 
 granted and enfeoffed, with the appurtenances, 
 by such descriptions as shall be sufficient to 
 comprise and ascertain the same : gltttJ it is 
 hereby agreed and declared between and by 
 the said parties hereto, that the said fine or 
 fines so as aforesaid, or in any other manner, 
 or at any other time or times to be had, ac- 
 knowledged, and levied, and also all other 
 fines and common recoveries, conveyances, 
 and assurances in the law whatsoever, already 
 had, made, done, acknowledged, levied, suf- 
 fered, and executed of the said pieces or 
 parcels of land and hereditaments hereinbe- 
 fore described, and expressed to be hereby 
 granted and enfeoffed, or any part thereof, by 
 or between the said parties to these presents, 
 or any of them, or whereunto they, or any 
 of them, are, or is, or shall or may be, party 
 or privy, or parties or privies, shall be and 
 enure, and shall be adjudged, deemed, con- 
 strued, and taken to be and enure as to the 
 said pieces or parcels of land and heredita- 
 ments, with the appurtenances, to, for, and 
 upon the uses, trusts, intents, and purposes 
 hereinbefore limited and expressed of and 
 concerning the same.
 
 the title. 
 
 94 A Feoffment, 
 
 Covenants for ^ttttr the said A. Akers doth hereby for 
 
 himself, his heirs, executors, and administra- 
 tors, covenant, promise, and agree to and 
 with the said B. Brown, his appointees, heirs, 
 and assigns, in manner following, (that is to 
 say,) That (for and notwithstanding any act, 
 deed, matter, or thing by him the said A. 
 Akers, or any of his ancestors, heretofore 
 made, done, permitted, or suffered to the con- 
 trary) he the said A. Akers now at the time 
 of the sealing and delivery of these presents is 
 lawfully, rightfully, and absolutely seised of 
 the said pieces or parcels of land and here- 
 ditaments hereinbefore described and ex- 
 pressed to be hereby granted and enfeoffed 
 for an estate of inheritance in fee-simple, 
 without any manner of condition, contin- 
 gent proviso, trust, power of revocation, or 
 limitation of any new or other use or uses, 
 or any restraint, cause, matter, or thing 
 whatsoever, to alter, change, charge, revoke, 
 make void, lessen, or determine the same es- 
 tate; &ttti that (for and notwithstanding any 
 act, deed, matter, or thing as aforesaid) he 
 the said Andrew Akers now at the time of 
 the sealing and delivery of these presents, 
 hath in himself good right, full power, and 
 lawful and absolute authority to grant, aiien, 
 enfeoff, and confirm the said pieces or par- 
 cels of land and hereditaments with the ap- 
 purtenances, unto the said Benjamin Brown 
 and his heirs, in manner aforesaid, and ac-
 
 with Covenant to levy a Fine. 95 
 
 cording to the true intent and meaning of 
 these presents; &tttl futtf^r, That it shall 
 and may be lawful for the said Benjamin 
 Brown, his appointees, heirs, and assigns, 
 from time to time, and at all times hereafter, 
 peaceably and quietly to enter into and upon, 
 and to have, hold, use, occupy, possess, and 
 enjoy the said pieces or parcels of land and 
 hereditaments, and to receive and take the 
 rents, issues, and profits thereof, and of every 
 part thereof, to and for his and their own use 
 and benefit absolutely, without any let, suit, 
 trouble, denial, eviction, ejection, interrup- 
 tion, or disturbance whatsoever, of, from, or 
 by the said Andrew Akers or his heirs, or any 
 person or persons lawfully or equitably claim- 
 ing, or to claim, by, from, through, under, 
 or in trust for him or them, or any of his an- 
 cestors ; ^tttl that free and clear, and freely, 
 clearly, and absolutely acquitted, exonerated, 
 and discharged, or otherwise by the said An- 
 drew Akers, his heirs, executors, or adminis- 
 trators, well and sufficiently saved, defended, 
 kept harmless and indemnified of, from, and 
 against all and all manner of former and other 
 gifts, grants, bargains, sales, leases, mortgages, 
 estates, titles, troubles, charges, and incum- 
 brances whatsoever had, made, done, commit- 
 ted, or suffered by the said Andrew Akers or 
 any of his ancestors, or any person or persons 
 claiming, or to claim, by, from, through, un- 
 der, or in trust for him, them, or any of them :
 
 9 (j A Feoffment, 
 
 £httr mot'COfcr, That he the said Andrew 
 Akers and his heirs, and every other person 
 having, or lawfully or equitably claiming, or 
 who shall or may have, or lawfully or equi- 
 tably claim any estate, right, title, trust, or 
 interest in, to, or out of the said pieces or 
 parcels of land and hereditaments hereinbe- 
 fore described, and expressed to be hereby 
 granted and enfeoffed, or any of them, by, 
 from, through, or under, or in trust for him 
 or them, or any of his ancestors, shall and 
 will from time to time, and at ali times here- 
 after, upon every reasonable request, and at 
 the proper costs and charges of the said 
 Benjamin Brown, his appointees, heirs, or 
 assigns, make, do, acknowledge, levy, suffer, 
 and execute, or cause and procure to be 
 made, done, acknowledged, levied, suffered, 
 and executed, all such further and other 
 lawful and reasonable acts, deeds, matters, 
 and things, devices, conveyances, and assur- 
 ances in the law, for the further, better, 
 more perfectly and absolutely granting, con- 
 veying, and assuring the same pieces or par- 
 cels of land and hereditaments, and every 
 part thereof, with appurtenances, unto and to 
 the use of the said Benjamin Brown, his ap- 
 pointees, heirs, and assigns, or otherwise as 
 he or they shall direct or appoint, as by the 
 said Benjamin Brown, his appointees, heirs, 
 or assigns, or his or their counsel in the law, 
 shall be reasonably advised or devised and
 
 with Covenant to levy a Fine. 97 
 
 required; so that no such further assurance 
 contain or imply any further or other war- 
 ranty or covenant than against the person or 
 persons, who shall be required to make and 
 execute the same, his, her, or their heirs, 
 executors, and administrators' acts and deeds 
 only ; and so that the person or persons, who 
 shall be required to make and execute any 
 such further assurance or assurances, be not. 
 compelled nor compellable, for the making 
 or doing thereof, to go or travel from his, 
 her, or their dwelling or respective dwellings, 
 or usual place or places of residence or abode. 
 
 &ttfc the said Andrew Akers hath nomi- Appointment of 
 
 attorney to de« 
 
 nated, constituted, and appointed, and By liver seisin, 
 these presents doth nominate, constitute, and 
 appoint the said David Deacon the true and 
 lawful attorney of and for him the said An- 
 drew Akers, and in his naineand stead to en- 
 ter into, and take full, quiet, and peaceable 
 possession and seisin of, all and singular the 
 said pieces or parcels of land and heredita- 
 ments, or of some part thereof, in the name 
 of the whole, and then to deliver full, quiet, 
 and peaceable possession and seisin of all and 
 singular the same hereditaments, or some 
 part thereof, in the name of the whole, unto 
 the said Benjamin Brown, or to the said Evan 
 Egan, his attorney hereinafter in that behalf 
 lawfully authorized, according to the form 
 
 VOL. II. H
 
 sion 
 
 08 Feoffment. 
 
 and effect and the true intent and meaning of 
 these presents. 
 
 Appointment of gjj|fc the said Benjamin Brown hath nomi- 
 
 atturney to re- _ \ • 
 
 ceive posses- nated, constituted, and appointed, and by 
 these presents doth nominate, constitute, and 
 appoint, the said Evan Egan the true and 
 lawful attorney of and for him the said Ben- 
 jamin Brown, and in his name and stead to 
 enter into and upon the said pieces or parcels 
 of land and hereditaments, or some part 
 thereof, in the name of the whole, and then 
 to receive and take of and from the said 
 Andrew Akers, or his said attorney, full, 
 peaceable, and quiet possession and seisin of 
 all and singular the said hereditaments, or of 
 some part thereof, in the name of the whole: 
 and such possession and seisin so taken, Uo 
 J)0tti to the uses aforesaid, according to the 
 form and effect, and the true intent and mean- 
 ing of these presents. In witness, &c.
 
 y9 
 
 GRANT. 
 
 GRANT of a Rent-charge during the Life See statute 17 
 of the Grantor, with a Demise to a Trns- which has been 
 
 r -w 7 f. ;l repealed by the 
 
 tee tor Years tor securing the same. statute, 53 Geo. 
 
 3. c. 141. 
 
 This Indenture of three parts, made the 
 day of in the thirty-ninth 
 
 year of thereign of our sovereign Lord George 
 the Third, &c. and in the year of our Lord 
 Christ one thousand seven hundred and nine- 
 ty-nine, Between Andrew Ashton of 
 
 in the county of Middlesex, 
 Esquire, of the first part, Benjamin Barton of 
 
 of the second 
 part, and Charles Cary of 
 
 of the third part : Wti&tXt%& William Ashton, Recital of a wai. 
 late of 
 
 deceased, in and by his last will and testament 
 in writing, duly executed and attested, bear- 
 ing date on or about the twenty-second day 
 of May, in the year one thousand seven hun- 
 dred and eighty-eight, did (amongst other 
 h 2
 
 300 Grant. 
 
 things) give and devise all and every his free- 
 hold messuages, lands, tenements, and here- 
 ditaments, situate, lying, and being in the se- 
 veral parishes of 
 and elsewhere in the county of 
 
 with the appurtenances, to the said An- 
 drew Ashton and his assigns during the term 
 of his natural life, without impeachment of 
 waste, with divers remainders over ; and the 
 said testator thereby appointed Robert Ri- 
 chards, Esquire, soleexecutorofhissaid will, 
 who on or about the twenty-second day of 
 February, one thousand seven hundred and 
 eighty-nine, duly proved the same in the pre- 
 The contract rogative court of Canterbury : &ntr \xfytvt&& 
 cha!e 6pur tne sa 'd Benjamin Barton hath contracted 
 with thesaid Andrew Ashton for the absolute 
 purchase of one clear annuity, or annual sum 
 of £ , to be paid unto the said Ben- 
 
 jamin Barton, his executors, administrators, 
 and assigns, during the life of the said An- 
 drew Ashton, free from taxes, and withoutany 
 other deduction whatsoever,byequal quarterly 
 payments on the days hereinafter mentioned ; 
 together with a proportional part of the said 
 annuity, for the time, which at the decease of 
 the said Andrew Ashton shall have elapsed of 
 the quarterly payment thereof then growing 
 due, and subject to the agreement hereinafter 
 contained for the repurchase of the said an- 
 nuity, at or for the price or sum of ^ ; 
 glttti "wi)tveti$> for securing the payment
 
 Grant. 101 
 
 of the said annuity or clear yearly sum of Warrant of at- 
 JO , the said Andrew Ashton hath by a 
 
 certain warrant of attorney, bearing even 
 date with these presents, authorized 
 
 and 
 gentlemen, two attornies of his Majesty's 
 court of at 
 
 Westminster, to confess judgment against 
 him in the said court of 
 at the suit of the said Benjamin Barton in an 
 action of debt for the sum of £ , and 
 
 costs of suit : ^Inti UitjnTuS it was agreed, 
 upon the treaty for the purchase of the said 
 annuity, that for the further, better, and 
 more effectually securing unto the said Ben- 
 jamin Barton, his executors, administrators, 
 aud assigns, payment of the said annuity or 
 clear yearly sum of g£ , the same should 
 be charged upon, and be issuing and payable 
 out of all those the said messuages, lands, 
 tenements, and hereditaments, late of the 
 said testator William Ashton, situate, lying, 
 and being in the said county of 
 and so devised by his said will as aforesaid, 
 with their and every of their rights, members, 
 and appurtenances ; and that the sam ■ mes- 
 suages, lands, tenements, and hereditaments 
 should be demised to a trustee for a term of 
 years, upon the trusts and in the manner 
 hereinafter expressed and declared of and 
 concerning the same : ^tttr tijfjf rcas it was 
 agreed upon the treaty for the purchase of the 
 
 h 3
 
 , 102 Grant. 
 
 said annuity or yearly sum of ^g that the 
 costs and expenses attending the contract for 
 the said annuity, and of preparing and exe- 
 cuting the several instruments for securing 
 the same, and of enrolling a memorial of 
 such securities, should be borne and paid by 
 the said Andrew Ashton ; iiioto tf)t0 3ntieifc= 
 The grant. tUVC £ititm00Ctf), That in pursuance of the 
 said recited agreement, and in consideration 
 of the sum of ^g of lawful money of Great 
 Britain to the said Andrew Ashton in his own 
 proper person in notes of the Governor and 
 Company of the Bank of England, payable to 
 bearer on demand, in hand well and truly paid 
 by the said Benjamin Barton, in his own 
 proper person, at or before the sealing and 
 delivery of these presents, the receipt* and 
 payment of which said sum of £ he the 
 saidAndrewAshtoudothherebyacknowledge, 
 and from the same and every part thereof 
 doth- acquit, release, and discharge the said 
 Benjamin Barton, his executors, administra- 
 tors, and assigns, and every of them, forever 
 by these presents, He the said Andrew Ashton 
 Hath given, granted, and confirmed, and by 
 these presents Doth give, grant, and confirm 
 unto the said Benjamin Barton, his executors, 
 administrators' 5 , and assigns, for and during 
 the natural life of him the said Andrew Ash- 
 ton, one annuity, or clear yearly rent of ^g 
 
 * See Nole A. l See Note B,
 
 Grant. 103 
 
 of lawful money of Great Britain, to be yearly 
 issuing, payable, going, had, received, and 
 taken by him the said Benjamin Barton, his 
 executors, administrators, and assigns, out 
 of, and to be charged and chargeable upon, 
 all those the said freehold messuages, lands, 
 tenements, and hereditaments, late of the 
 said testator William Ashton, situate, lying, 
 and being in the several parishes of 
 
 and and each and every of 
 
 them, and elsewhere in the said county of 
 
 with their and every of their rights, 
 members, and appurtenances, and out of all 
 other the messuages, lands, tenements, and 
 hereditaments, in the county of 
 by the said will devised as aforesaid, or 
 whereof or whereto he the said Andrew Ash- 
 ton is under and by virtue of the said in part 
 recited will, or otherwise, seised, possessed, or 
 entitled for any estate or interest whatsoever; 
 together with all and singular the rights, 
 members, and appurtenances thereto belong- 
 ing, or in any wise appertaining, and the re- 
 mainder and remainders, yearly and other 
 rents, issues, and profits of all and singular 
 the premises : H£o ijtifcr, f)0ifc, vtctibe f tafctf, Habendum. 
 Miii tniop the said annuity, clear yearly rent, 
 or annual sum of j£ and every part thereof, 
 unto the said Benjamin Barton, his executors, 
 administrators, and assigns, for and during 
 the natural life of the said Andrew Ashton, to 
 
 h 4
 
 104 
 
 Grant. 
 
 Days of pay- 
 ment. 
 
 Power to dis- 
 train. 
 
 be paid and payable to him the said Benjamin 
 Barton, his executors, administrators, or as- 
 signs, at or in the common dining-hall in 
 Lincoln's inn, in the said county of Middle- 
 sex, by equal quarterly payments, between 
 the hours of ten and twelve of the clock in 
 the forenoon of the several and respective 
 days following, (that is to say) 
 
 in each and every 
 year, by even and equal portions, free from 
 taxes, and without any other deduction what- 
 soever ; together with a proportional part of 
 the said annuity, or clear yearly sum of ^g 
 for the time, which at the decease of the said 
 Andrew Ashton shall have elapsed of the 
 quarterly payment thereof, then growingdue; 
 the first payment of the said annuity to begin 
 and be made on the day of next 
 
 ensuing the date of these presents. J$rototti£& 
 illU)iU>$, and it is hereby declared and agreed 
 by and between the said parties hereto, and 
 particularly the said Andrew Ashton, for him- 
 self, his heirs, executors, and administrators, 
 doth hereby grant, covenant, and agree to and 
 with the said Benjamin Barton, hisexecutors, 
 administrators, and assigus, that in case the 
 said annuity, or yearly rent of j£ , or any 
 part thereof shall happen to be behind and 
 unpaid by the space of fourteen days next 
 over or after any of the said days or times 
 hereby appointed for the payment thereof.
 
 Grant. \q$ 
 
 and whereon the same ought to be paid as 
 aforesaid, then and in every such case, and so 
 often as it shall so happen, it shall and may 
 be lawful for the said Benjamin Barton, his 
 executors, administrators, and assigns, into 
 and upon the said messuages, tenements,lands, 
 hereditaments, and premises so charged with 
 the payment of the said annuity, or yearly 
 rent of £ , or intended so to be as afore- 
 said, or into and upon any part thereof, to 
 enter and distrain for the same annuity, or 
 yearly rent of £ , and all arrears thereof; 
 and the distress and distresses then and there 
 found and taken to take, lead, drive, carry 
 away, and impound, and the same in pound 
 to detain and keep, until the same annuity, 
 or yearly rent of £ and all arrears 
 
 thereof, and all costs, charges, and expenses 
 whatsoever, sustained, or occasioned by, or 
 attending the making, taking, and keeping 
 any such distress or distresses, shall be fully 
 paid and satisfied ; and in default of payment 
 thereof, or of any part thereof, in due time 
 after any such distress or distresses shall be 
 made and taken, to appraise, sell, or dispose 
 of such distress or distresses, or any part 
 thereof, or otherwise to act therein according 
 to the due course of law in like manner, as 
 in cases of distress taken for non-payment of 
 rent reserved upon common leases ; To the 
 intent, that thereby and therewith the said 
 Benjamin Barton, his executors, administra-
 
 106 Grant. 
 
 tors, and assigns, shall and may be fully paid 
 and satisfied the said annuity or yearly rent 
 of £ and all arrears thereof, or so much 
 thereof, as shall then be remaining due and 
 unpaid, and all costs, charges, and expenses 
 which shall be sustained or occasioned by the 
 Power of entry, non-payment thereof. JUrobt&efcf al0O, and 
 he the said Andrew Ashton, for himself, his 
 heirs, executors, and administrators, doth 
 hereby further covenant, grant, and agree to 
 and with the said Benjamin Barton, his exe- 
 cutors, administrators, and assigns, that in 
 case the said annuity or yearly rent of £ 
 or any part thereof, shall at any time or 
 times happen to be behind and unpaid by 
 the space of twenty-eight days next over, or 
 after, any of the said days or times appointed 
 for the payment thereof as aforesaid, then 
 and in such case, and so often as it shall hap- 
 pen (although no formal or lawful demand 
 thereof shall be made), it shall and may be 
 lawful for the said Benjamin Barton, his exe- 
 cutors, administrators, and assigns, into and 
 upon all the said messuages, or tenements, 
 lands, hereditaments, and premises hereby 
 charged therewith as aforesaid, or into and 
 upon any part thereof in the name of the 
 whole, to enter, and the same to have, hold, 
 and enjoy, and the rents, issues, and profits 
 thereof, and of every part thereof, to receive 
 and take to and for his and their own use and 
 benefit, until he or they shall be thereby, or
 
 Grant. 107 
 
 therewith, or otherwise, fully paid and satis- 
 fied the said annuity or yearly rent of £ 
 and all arrears thereof, and also so much of 
 the said annuity or yearly rent of <£ as 
 
 shall incur and grow due during such time as 
 the said Benjamin Barton, his executors, ad- 
 ministrators, or assigns, shall continue in pos- 
 session of the said hereditaments and pre- 
 mises after such entry as aforesaid, and also 
 all such loss, costs, charges, damages, and 
 expenses, as shall be sustained or occasioned 
 by reason or means of the non-payment of 
 the said annuity or yearly rent-charge, or 
 any part thereof, at or on the days or times 
 hereinbefore appointed for the payment there- 
 of (such possession, when taken, to be with- 
 out impeachment of waste.) And the said Covenant to 
 Andrew Ashton, for himself, his heirs, exe- Ey. e ' 
 cutors, and administrators, doth hereby co- 
 venant, promise, and agree to and with tlie 
 said Benjamin Barton, his executors, adminis- 
 trators, and assigns, that he the said Andrew 
 Ashton shall and will well and truly pay, or 
 cause to be paid, unto the said Benjamin 
 Barton, his executors, administrators, or 
 assigns, during the natural life of him the 
 said Andrew Ashton, the said annuity or 
 yearly rent of JO free from taxes, 
 
 and without any other deduction whatso- 
 ever, at the place, days, or times, and in 
 
 c Sec Note C,
 
 108 Grant. 
 
 manner and form hereinbefore expressed, 
 and appointed for the payment thereof d , ac- 
 cording to the true intent and meaning of 
 these presents ; and also that the heirs, exe- 
 cutors, or administrators of the said Andrew 
 Ashton, shall and will, within ten days next 
 after the decease of the said Andrew Ashton, 
 well and truly pay, or cause to be paid, unto 
 the said Benjamin Barton, his executors, 
 administrators, or assigns, a proportional 
 part of the same annuity, yearly rent, or an- 
 nual sum of £ for the time, which, 
 at the decease of the said Andrew Ashton, 
 shall have elapsed, of the quarterly payment 
 Demise to » thereof, then growing due e . &it& tijttf 3ftt= 
 
 (trustee 
 
 tenture CurtDn* W,itntut\% that in further 
 pursuance of the said agreement, and for 
 the consideration hereinbefore expressed, and 
 for the further, better, and more effectually 
 securing the payment of the said annuity, 
 yearly rent, or annual sum of £ , at 
 
 or on the days or times and in the manner 
 aforesaid, and also in consideration of the 
 sum of ten shillings of lawful money of 
 Great Britain to the said Andrew Ashton in 
 hand paid by the said Charles Cary, at or be- 
 fore the sealing and delivery of these presents 
 (the receipt whereof is hereby acknowledged), 
 he the said Andrew Ashton, at the request, 
 and by the direction and appointment of the 
 
 d See Note D. 6 See Note E.
 
 Grant. 109 
 
 said Benjamin Barton (testified by his being: Demise to a 
 
 i i- .",,-■ , trustee. 
 
 a party to, and sealing; and delivering these 
 presents), hath granted, bargained, sold, and 
 demised, and by these presents both grant, 
 bargain, sell, and demise unto the said Charles 
 Cary, his executors, administrators, and as- 
 signs, all those the said several messuages or 
 tenements, lands, hereditaments, and premises 
 with the appurtenances hereinbefore men- 
 tioned, and hereinbefore charged with the 
 payment of the said annuity, yearly rent, 
 or annual sum of ^£ , and all other 
 
 the estates and hereditaments situate and 
 being in the said county of , which 
 
 he the said Andrew Ashton is under and by 
 virtue of the said hereinbefore in part recited 
 will or otherwise seised or possessed of, or 
 intitled to, for any estate of inheritance, or 
 for his life, or for any term or number of 
 years, or otherwise howsoever; together with 
 all and siugular the rights, members, and ap- 
 purtenances thereto respectively belonging, 
 or in any wise appertaining ; and the rever- 
 sion and reversions, remainder and remain- 
 ders, rents, issues, and profits of all and sin- 
 gular the said several hereditaments, and pre- 
 mises ; To have and to hold the said mes- Habendum for 
 suages or tenements, lands, hereditaments, yean? 
 and premises hereby granted and demised, or 
 expressed, or intended so to be, with the ap- 
 purtenances, unto the said Charles Cary, his 
 executors, administrators, and assigns, from
 
 110 Grant. 
 
 the day next before the day of the date of these 
 presents, for and during the term of ninety- 
 nine years thence next ensuing, and fully to 
 be complete and ended, without impeach- 
 ment of waste; yielding and paying therefore 
 yearly and every year, during the continu- 
 ance of this demise, unto him the said An- 
 drew Ashton the rent of one peppercorn (if 
 the same shall be lawfully demanded); never- 
 theless, upon and for the trusts, intents, and 
 purposes hereinafter expressed and declared 
 of and concerning the same hereby demised 
 Upon trust. premises, (that is to say:) Upon trust in the 
 first place, to permit and suffer the said An- 
 drew Ashton, and his assigns, to receive and 
 take the yearly income, or the rents, issues, 
 and profits of all the said hereby demised 
 premises, with the appurtenances, or to have, 
 hold, occupy, and enjoy the same, until de- 
 fault shall happen to be made of or in pay- 
 ment of the said annuity or yearly rent of 
 ^g or some part thereof, at or on the 
 
 days or times, and in the manner herein be- 
 fore appointed for payment thereof ; and upon 
 this further trust, that in case the said an- 
 nuity or yearly rent of ^ or any part 
 thereof, shall happen to be behind or unpaid 
 by the space of thirty days next over or after 
 any of the said days or times hereinbefore ap- 
 pointed for payment of the same, and where- 
 on the same ought to be paid as aforesaid, 
 then and so often, the said Charles Cary, his
 
 Grant. Ill 
 
 executors, administrators, or assigns, shall 
 and do, from to time, by and out of the 
 annual rents, issues, and profits of the said 
 messuages or tenements, hereditaments and 
 premises, or any part thereof, or by demis- 
 ing, leasing, mortgaging, or selling the same 
 hereditaments, or any part thereof, for all 
 or any part of the said term of ninety-nine 
 years therein, or by such other ways or 
 means, as to him the said Charles Cary, his 
 executors, administrators, or assigns, shall 
 seem meet, raise and levy such sum and sums 
 of money, as shall be sufficient to pay and 
 satisfy the said annuity or yearly rent of 
 ^g or so much thereof, as shall from 
 
 time to time happen to be in arrear and un- 
 paid ; together with all such loss, costs, 
 charges, damages, and expenses whatsoever, 
 as the said Charles Cary and Benjamin Bar- 
 ton, or either of them, their or either of their 
 executors, administrators, or assigns, shall 
 sustain, expend, or be put unto, for or by 
 reason or means of the non-payment of the 
 same annuity or yearly rent of ^ or 
 
 any part thereof, at the days and times, and 
 in the manner hereinbefore appointed for 
 payment thereof, and as the said Charles 
 Cary, his executors, administrators, and as- 
 signs shall sustain or be put unto in and 
 about the execution and performance of the 
 trusts hereby declared ; and shall and do pay 
 and apply the monies arising thereby, or
 
 terra 
 
 112 Grant. 
 
 therefrom, in or towards payment and satis- 
 faction thereof accordingly; and shall and do 
 pay to, or otherwise permit and suffer the 
 said Andrew Ashton, and his assigns, to have, 
 receive, and take the surplus of the said rents, 
 issues, and profits of the said messuages or 
 tenements, lands, hereditaments, and pre- 
 mises, after full payment and satisfaction of 
 the said annuity or yearly rent of ^g 
 and all arrears thereof, and all such costs, 
 charges, damages, and expenses as aforesaid, 
 to and for his and their own use and benefit: 
 Cesser of the Provided always, and it is hereby agreed and 
 declared, that after the decease of the said 
 Andrew Ashton, and full payment of the 
 said annuity or yearly sum of ^ and 
 
 all arrears thereof to the said Benjamin Bar- 
 ton, his executors, administrators, and as- 
 signs, and all such costs, charges, damages, 
 and expenses, as aforesaid, the said term of 
 ninety-nine years hereby granted and demis- 
 ed of and in the premises, or so much thereof 
 as shall not be disposed of under the trusts 
 aforesaid, shall cease, determine, and be abso- 
 lutely void. £Mft it is hereby agreed and de- 
 clared, between aud by the said parties here- 
 to, that the receipt or receipts, of the said 
 Charles Cary, his executors, administrators, 
 or assigns, shall be a sufficient discharge for 
 any monies which shall come to his or their 
 hands, by virtue of or under these presents, 
 or upon the trusts aforesaid, unto the person or
 
 Grant. 113 
 
 persons paying the same monies, or for so 
 much thereof as in such receipt or receipts 
 shall be expressed to be received : and that 
 the person or persons paying such monies, 
 shall not, after obtaining such receipt or re- 
 ceipts for the same as aforesaid, be bound or 
 obliged to see to the application of the same 
 monies, nor be answerable for the loss, mis- 
 application or non-application thereof; nor 
 shall he or they be bound to ascertain or in- 
 quire into the necessity or propriety of any 
 sale, mortgage, or other disposition, or the 
 collection of rents and profits, which shall be 
 made by the said Charles Cary,his executors, 
 administrators, or assigns. And the said An- The grantor 
 drew Ashton, for himself, his heirs, executors, ZT^oot' 
 and administrators, doth covenant, promise, J^prerisesf 
 and agree to and with the said Benjamin 
 Barton, his executors, administrators, and as- 
 signs, and also separately to and with the said 
 Charles Cary, his executors, administrators, 
 and assigns, by these presents in manner and 
 form following; (that is to say,) that he the 
 said Andrew Ashton hath in himself good 
 right, full power, and lawful and absolute 
 authority to charge the said messuages or 
 tenements, lands, hereditaments, and pre- 
 mises, and every part or parcel thereof, with 
 the payment of the said annuity, yearly rent, 
 or annual sum of£ in manner afore- 
 
 said ; and to demise the same messuages or and to demise 
 tenements, lands, hereditaments, and pre- 
 
 VOL. II. I
 
 from incum- 
 brances ; 
 
 114 Grant. 
 
 mises respectively to the said Charles Cary, 
 his executors, administrators, and assigns, for 
 and during the said term of ninety-nine 
 years 2 , upon and for the trusts, intents, and 
 purposes hereinbefore mentioned, expressed, 
 and declared of and concerning the same, and 
 according to the true intent and meaning of 
 thatthepremi- these presents ; and further, that all and sin- 
 cont a in e U e n free ha11 gular the premises hereby demised now are 
 and shall from time to time, and at all times 
 hereafter, during the continuance of the said 
 term of ninety-nine years, remain, continue, 
 and be open to, and sufficient for, such dis- 
 tress and entries as aforesaid, of the said Ben- 
 jamin Barton, his executors, administrators, 
 and assigns, in case of non-payment to him 
 or them of the said annuity, yearly rent, or 
 annual sum of £ at the days or times, 
 
 and in manner aforesaid ; and that the said 
 messuages or tenements, lands, heredita- 
 ments, and premises now are free and clear, 
 and freely and clearly acquitted, exonerated, 
 and discharged, and shall remain, continue, 
 and be, during the said term hereby granted, 
 well and sufficiently saved, defended, kept 
 harmless, and indemnified by the said An- 
 drew Ashton, his heirs, executors, or ad- 
 ministrators, of, from, and against all and all 
 manner of former and other gifts, grants, 
 
 ' See as to an action upon Bradshaw's case, 9 Co. GO. 
 a covenant of this kind, b. Cro. Jac. 304.
 
 Grant. 1 15 
 
 bargains, sales, leases, mortgages, annuities, 
 rents, dowers, right and title of dower, uses, 
 trusts, wills, intails, recognizances, judg- 
 ments, extents, executions, forfeitures, and 
 of, from, and against all and singular other 
 estates, titles, troubles, charges, and in- 
 cumbrances, whatsoever, had, made, done, 
 committed, executed, occasioned, or suffer- 
 ed, or to be had, made, done, committed, 
 occasioned, or suffered by the said Andrew 
 Ashton, or any other person or persons 
 whomsoever 3 . And moreover, that he the and for further 
 said Andrew Ashton, and every other per- aa 
 son having, or lawfully or equitably claim- 
 ing, or who shall or may have, or lawfully 
 or equitably claim any estate, right, title, 
 trust, or interest whatsoever, in, to, or out 
 of the said messuages or tenements, lands, 
 hereditaments, and premises hereinbefore 
 mentioned and hereby demised, or intended 
 so to be, or any of them, or any part there- 
 of, shall and will, from time to time, and 
 at all times b during the life of him the 
 said Andrew Ashton, upon every reasonable 
 request of the said Benjamin Barton, his 
 executors, administrators, or assigns, but 
 proper costs and charges' 1 in the law 
 of the said Andrew Ashton, make, do, ac- 
 knowledge, levy, suffer, and execute, or 
 
 a See Note F. c Ibid. 441. Styles, 242. 
 
 b See 1 Roll. Ab. 441. T. Jones, 195. 
 
 d See Note G. 
 
 I 2
 
 1 10 Grant. 
 
 cause or procure to be made, done, acknow- 
 ledged, levied, suffered, and executed, all 
 such further and other lawful and reason- 
 able acts, deeds, and things, devices, con- 
 veyances, and assurances in the law whatso- 
 ever, for the further, better, more perfectly 
 and absolutely granting and securing the said 
 annuity or yearly rent, or annual sum of£ 
 to the said Benjamin Barton, his executors, 
 administrators, and assigns, by and out of the 
 premises, and every part thereof, for and du- 
 ring the continuance of the natural life of 
 him the said Andrew Ashton, and also for the 
 more effectually granting, demising, and as- 
 suring the same premises unto the said Charles 
 Gary, his executors, administrators, and as- 
 signs, for and during all the then remainder 
 of the said term of ninety-nine years, upon 
 the trusts hereinbefore declared thereof, as by 
 the said Benjamin Barton, his executors, ad- 
 ministrators, or assigns, or his or their counsel 
 in the law,shall be reasonably devised, or ad- 
 Recitaiofan vised, and required. &tt& UJfjetrag the judg- 
 enter upfudg- nient so to be confessed by the said 
 ESSSS 1 fo his Majesty's court of for 
 
 of attorney. ^ Q ga j c j gum Q f £ ■ anf J CO gtg f gmt ag 
 
 aforesaid, It is agreed shall be entered of re- 
 cord in the said court of as of 
 Declaration term now last past, or of some 
 ££&£& subsequent term: froto tfti* jpHMftttttt* fur* 
 kterauecurh" X ^ tx SSIitttr<50rt!j, and it is hereby agreed 
 for payment of an( j declared between and by the said And rew 
 
 the annuity. y
 
 Grant. 117 
 
 Ashton and Benjamin Barton, that the said 
 judgment is intended to be so entered up as 
 aforesaid; and the said Benjamin Barton, his 
 executors, administrators, and assigns, shall 
 stand and be possessed thereof, and of all be- 
 nefit and advantage arising, and to be had and 
 taken thereby, as a collateral security only, 
 and for the better and more effectually secur- 
 ing the payment of the said annuity, yearly 
 rent, or annual sum of £ , to the said 
 
 Benjamin Barton, his executors, administra- 
 tors, and assigns, during the life of the said 
 Andrew Ashton, at the several days or times, 
 and in the manner hereinbefore appointed for 
 payment thereof, and such proportional part 
 thereof as aforesaid ; and that no execution 
 shall be issued or taken out upon the said 
 judgment, unless and until some payment of 
 the said annuity, or some part thereof, shall 
 be in arrear for the space of twenty-one days 
 next after some or one of the said days here- 
 inbefore appointed for payment thereof, as 
 aforesaid : Provided always, and it is hereby 
 further agreed and declared between and by 
 the said parties to these presents, that when 
 and so often as the said annuity, yearly rent, 
 or annual sum off , or some part thereof, 
 shall be behind and unpaid by the space of 
 twenty-one days next over or after any of the 
 said days of payment hereinbefore mentioned, 
 then and in such case, and so often as it shall 
 so happen, it shall and may be lawful for the 
 J 3
 
 118 Grant. 
 
 said Benjamin Barton, his executors, adminis- 
 trators, or assigns, to sue out such execution 
 or executions upon or by virtue of the said 
 judgment, as he or they shall think fit, or be 
 advised, for the recovery of the said arrears 
 of the said annuity, yearly rent, or annual 
 sum of £ , and all costs and charges, 
 
 which he the said Benjamin Barton, his exe- 
 cutors, administrators, or assigns, or any of 
 them, shall bear, pay, sustain, or be put unto, 
 for or by reason or means of the non-pay- 
 ment of the same, or any part thereof; and 
 that it shall not be necessary for the said 
 Benjamin Barton, his executors, administra- 
 tors, or assigns, to revive, or cause the said 
 judgment to be revived, or to do any act, mat- 
 ter, or thing to keep the same on foot, not- 
 withstanding the same judgment shall have 
 been entered of record for the space of one 
 year, or upwards ; and notwithstanding any 
 rule or practice of the said court, in which 
 the said judgment shall be entered on record, 
 to the contrary ; and that he the said Andrew 
 Ashton, his heirs,executors, or administrators, 
 shall not nor will have, take, or receive, or 
 attempt by any ways or means to have, take, 
 or receive any advantage for want of reviving 
 or keeping the said judgment on foot : Ne- 
 vertheless it is hereby agreed and declared, 
 that after the decease of the said Andrew 
 Ashton, and full payment of the said annuity, 
 yearly rent, or annual sum of £ , and all
 
 Grant. 119 
 
 arrears thereof, together with such propor- 
 tional part thereof as aforesaid, up to the day 
 of the decease of him the said Andrew Ash- 
 ton, and of all such costs, charges, damages, 
 and expenses as aforesaid, the said Benjamin 
 Barton, his executors, administrators, or as- 
 signs, shall and will, at the request, costs, 
 and charges of the heirs, executors, or admi- 
 nistrators of the said Andrew Ashton, ac- 
 knowledge satisfaction of the said judgment 
 on the record thereof in due form of law, or 
 do any further or other reasonable act, mat- 
 ter, or thing that may be then required in 
 regard thereto ; so that for the doing thereof 
 he the said Benjamin Barton, his executors, 
 administrators, or assigns, be not compelled 
 nor compellable to travel from his or their 
 place or places of abode. Provided always 
 and it is hereby agreed and declared between 
 and by the said parties hereto, and particu- 
 larly the said Benjamin Barton, for himself, 
 his heirs, executors, and administrators, doth 
 hereby covenant, promise, and agree to aud 
 with the said Andrew Ashton, that in case 
 the said Andrew Ashton shall at any time 
 hereafter be minded or desirous of re-purchas- 
 ing the said annuity, yearly rent, or annual 
 sum of £ , and of such his mind or desire 
 shall give unto the said Benjamin Barton, his 
 executors, administrators, or assigns, or leave 
 at his or their usual place of residence or 
 abode, ten days' notice in writing, he the said 
 
 I 4
 
 120 Grant. 
 
 Benjamin Barton, his executors, administra- 
 tors, or assigns, shall and will at the end 
 of the said ten days, for which such notice 
 shall be given as aforesaid, on receiving 
 of and from the said Andrew Ashton all 
 sums of money whatsoever, which shall be 
 then due for, or on account of, the arrears of 
 the said annuity, and also a proportional part 
 thereof, from the last quarterly day of pay- 
 ment preceding such re-purchase, up to, and 
 inclusive of, the day of re-purchasing the 
 same; and all costs, charges, and expenses 
 which the said Benjamin Barton, his execu- 
 tors, administrators, or assigns, shall have 
 incurred, or been put unto, on account of the 
 non-payment of the said annuity, accept, re- 
 ceive, and take the sum of £ as and in 
 full for the re-purchase of the said annuity, 
 yearly rent, or annual sum of £ hereinbe- 
 fore granted as aforesaid ; and upon receipt 
 of the said sum of £ , and of all arrears of 
 the said annuity, and of such proportional 
 part thereof as aforesaid, and ofall such costs, 
 charges, and expenses as aforesaid, he the said 
 Benjamin Barton, his executors, administra- 
 tors, or assigns, and also the said Charles 
 Cary, his executors, administrators, or as- 
 signs, shall and will, at the request, and pro- 
 per costs and charges in the law, of the said 
 Andrew Ashton, make, do, and execute every 
 act, deed, thing, assignment, or assurance, 
 which shall be necessary or advisable for the
 
 Grant. 121 
 
 releasing, assigning, vacating, and discharg- 
 ing as well the said annuity, or yearly rent of 
 £ , as the said several securities given 
 
 and executed for the payment thereof, as by 
 the said Andrew Ashton, his executors, admi- 
 nistrators, or assigns, or his or their counsel 
 in the law, shall in that behalf be reasonably 
 advised, or devised, and required ; so that for 
 the doing thereof he the said Benjamin Bar- 
 ton, his executors, administrators, or assigns, 
 or the said Charles Cary, his executors, admi- 
 nistrators, or assigns, be not compelled or 
 compellable to go or travel from his or their 
 then usual place or places of abode 6 . In 
 witness, &c. 
 
 e See Note H.
 
 122 
 
 GRANT of an ADVOWSON. 
 
 This Indeuture, bearing date the day of 
 one thousand eight hundred and 
 thirteen, and made between Abraham Auld 
 of, &c. of the one part, and Benjamin Buxton 
 of, &c. of the other part : 
 
 ®2U!)erea0 the said Abraham Auld hath 
 contracted with the said Benjamin Buxton for 
 the absolute sale to him of the advowson of 
 the rectory of in the county of 
 
 and the inheritance thereof in 
 fee-simple, free from incumbrances, at or for 
 the price or sum of £ 
 
 i^oto tf)i0 Wbtntwct %mitne$mi), that in 
 pursuance of the said recited contract, and in 
 consideration of the sum of £ of lawful 
 
 money of Great Britain to the said Abraham 
 Auld in hand paid by the said Benjamin 
 Buxton, at or before the sealing and delivery 
 of these presents, the receipt of which said 
 sum of £ he the said Abraham Auld doth 
 hereby acknowledge, and of and from the 
 same, and every part thereof, doth acquit, re-
 
 Grant of an Advowson. 123 
 
 lease, and discharge the said Benjamin Bux- 
 ton, his heirs, executors, administrators, and 
 assigns, and every of them for ever, by these 
 presents, the said Abraham Auld hath grant- 
 ed and confirmed, and by these presents 
 doth grant and confirm unto the said Benja- 
 min Buxton, his heirs, and assigns, all that 
 the advowson, donation, right of patronage, 
 and presentation of, in, and to the rectory 
 and parish church of in the county 
 
 of , with all and singular the rights, 
 
 members, and appurtenances thereto belong- 
 ing, or in any wise appertaining, and the re- 
 version and reversions, remainder and re- 
 mainders thereof, and all the estate, right, 
 title, interest, trust, property, claim, and de- 
 mand whatsoever at law and in equity of the 
 said Abraham Auld, in, to, or out of the same 
 advowson, and every part thereof; and all 
 deeds, evidences, and writings relating to, or 
 in any wise concerning the said advowson now 
 in the custody or power of the said Abraham 
 Auld, or which he can obtain or procure with- 
 out suit at law or in equity: 
 
 Co f^abe attti to $?oUi the said advowson 
 and premises hereby granted, or intended so 
 to be, with the appurtenances, unto the said 
 Benjamin Buxton and his heirs, to the use of 
 the said Benjamin Buxton, his heirs and as- 
 signs for ever.
 
 124 Grant of an Advowson. 
 
 And the said A. Auld doth hereby for him- 
 self, his heirs, executors, and administrators, 
 covenant, promise, and agree to and with the 
 said B. Buxton, his heirs and assigns, in man- 
 ner following; (that is to say,) That (for and 
 notwithstanding any act, deed, matter, or 
 thing by him the said A. Auld, at any time 
 heretofore made, done, executed, permitted, 
 or willingly or knowingly suffered to the con- 
 trary) he the said A. Auld now, at the time of 
 the sealing and delivery of these presents, is 
 lawfully, rightfully, and absolutely seised of 
 the said advowson and premises expressed to 
 be hereby granted, with the appurtenances, of 
 a good, sure, perfect, lawful, absolute, and in- 
 defeasible estate of inheritance, in fee-simple, 
 without any manner of condition, contingent 
 proviso, trust, power of revocation, or limit- 
 ation of any new or other use or uses, or any 
 other restraint, cause, matter, or thing, to 
 alter, change, charge, revoke, make void, al- 
 ter, or determine the same estate ; 
 
 And that (for and notwithstanding any 
 such act, matter, or thing as aforesaid) he 
 the said A. Auld, now, at the time of the 
 sealing and delivery of these presents, hath 
 in himself good right, full power, and lawful 
 and absolute authority to grant the said ad- 
 vowson and premises unto the said B. Bux- 
 ton, his heirs and assigns, in manner afore-
 
 Grant of an Advoivson. 125 
 
 said, and according to the true intent and 
 meaning of these presents ; 
 
 And also, that it shall be lawful for the 
 said B. Buxton, his heirs and assigns, from 
 time to time, and at all times hereafter, when- 
 ever the said church of shall or may, 
 by the death, resignation, deprivation, ces- 
 sion, or change of the rector or incumbent 
 thereof for the time being, or otherwise, hap- 
 pen to become vacant, to present some pro- 
 per and qualified clerk to succeed to the said 
 church, as the rector or parson thereof, and 
 to do all other acts which appertain to the 
 office of patron of the said rectory or church, 
 without any let, suit, molestation, hinder- 
 ance, interruption, or disturbance of, from, or 
 by the said A. Auld or his heirs, or any per- 
 son or persons claiming, or to claim, by, 
 from, through, or under him, them, or any of 
 them ; 
 
 And that free and clear, and freely, clearly, 
 and absolutely acquitted, exonerated, and dis- 
 charged, or otherwise by the said A. Auld, 
 his heirs, executors, or administrators, or 
 some or one of them, well and sufficiently 
 saved, defended, kept harmless, and indemni- 
 fied of, from, and against all and singular 
 former and other gifts, grants, bargains, sales, 
 mortgages, charges, and incumbrances what- 
 soeve^had, made, done, executed, committed,
 
 126 Grant of an Advowson. 
 
 or suffered by the said A. Auld, or any per- 
 son or persons claiming, or to claim, by, from, 
 through, or under him ; 
 
 And, moreover, that he the said A. Auld, 
 and his heirs, and every other person having, 
 or lawfully or equitably claiming, or who 
 shall or may have, or lawfully or equitably 
 claim, any estate, right, title, or interest in, 
 to, or out of the said advowson and premises, 
 expressed to be hereby granted, by, from, or 
 under him or them, shall and will from time 
 to time, and at all times hereafter, upon every 
 reasonable request, and at the proper costs and 
 charges of the said B. Buxton, his heirs or 
 assigns, make, do, acknowledge, levy, suffer, 
 and execute, or cause and procure to be made, 
 done, acknowledged, levied, suffered, and ex- 
 ecuted, all such further and other lawful and 
 reasonable acts, deeds, matters, and things, 
 devices, conveyances, and assurances in the 
 law whatsoever, for the further, better, more 
 perfectly and absolutely granting and assur- 
 ing the same advowson and premises, with 
 the appurtenances, unto, and to the use of, 
 the said B. Buxton, his heirs and assigns, or 
 otherwise, as he or they shall direct or ap- 
 point, as by the said B. Buxton, his heirs or 
 assigns, or his or their counsel in the law, 
 shall be reasonably advised or devised, and re- 
 quired ; so that such further assurance or as- 
 surances contain or imply no further or other
 
 Grant of an Advowson. 1 27 
 
 warranty or covenant, than against the per- 
 son or persons who shall be required to make 
 and execute the same, his, her, or their heirs, 
 executors, and administrators' acts and deeds 
 only ; and so that the person or persons, who 
 shall be required to make and execute such 
 further assurance or assurances, be not com- 
 pelled nor compellable for the making or 
 doing thereof, to go or travel from his, her, 
 or their dwelling or respective dwellings, or 
 usual place or places of residence or abode. 
 In witness, &c.
 
 .L- k^ tJf« u, t a? stU^^A^M, 4^ **+<-* 
 
 BARGAIN and SALE. 
 
 To make a Tenant to the Praecipe for 
 
 suffering a Recovery, 4y ,w^/^ 
 
 '._. 4.%. ^ /^ ^2s 
 
 4, t&<«S fc y? • ■z<*- 5 : 
 7/ 
 
 Recoveree. 
 
 Tenant. 
 Demandant. 
 
 0< yC/l.J* lUAllUr* c+«J-yh~*/ 
 
 This Indenture of three parts, made the 
 twelfth day of February, in the thirty-ninth 
 year of the reign of our sovereign Lord 
 George the Third, &c. and in the year of our 
 Lord Christ one thousand seven hundred and 
 ninety-nine, Between Daniel Den, of Lin- 
 coln's Inn, in the county of Middlesex, 
 Esquire (eldest son and heir at law of Daniel 
 Den, late of, &c. Esquire, deceased) of the 
 first part, Edward East, of, &c. Esquire, of 
 the second part, and Francis Foley, of, &c. 
 Gentleman, of the third part, rattltr00rtf), 
 That for docking, barring, and extinguishing 
 all estates tail, and reversions and remainders 
 thereupon expectant or depending of and in 
 the messuages, lands, tenements, and heredi-
 
 Bargain and Sale. 121) 
 
 tam ents h ereinafter bargained and sold, or in- ~ .c,/^ ** ?? *+~*>r ■&* 
 tended so to be, and for limiting and assuring ct t' y 
 the same, and the inheritance thereof in fee- 
 simple, with the appurtenances, to the use 
 of the said Daniel Deu (party hereto), his 
 heirs and assigns, for ever; and in consi- 
 deration of the sum of five shillings of law- 
 ful money of Great Britain, to the said Da- 
 niel Den (party hereto) in hand paid by the 
 said Edward East, at or before the sealing 
 and delivery of these presents (the receipt 
 whereof is hereby acknowledged), he the 
 
 said DanjelJDen (party hereto) hath granted/,^* -*/*■ '^/y ^Y e - ^ * t 
 bargained, and sold, and by these presents '^ ' "7 / 
 doth grant, bargain, and sell unto the said / 
 Edward East, his heirs and assigns, all those ty^U ^/C^r y e *,^< 
 messuages, &c. &c. together with all and 6%**^~& j^-^/ ^^^ 
 singular edifices, buildings, barns, stables, or-/ ^ ^ ' r y& ***?'£ 
 chards, gardens, yards, backsides, commons,^/ a c ^^/^<wfc 
 timber and timber trees, woods and uoder-l] g^je ^yj^^cc. u+ f*. 
 woods, and the ground and soil thereof, ways, /c ^^- e^Ueotf <m ytdeii 
 paths,passages,waters,water-courses, profits, \,<> ^ C.C 
 commodities, advantages, hereditaments, and 
 appurtenances whatsoever, to the same mes- 
 suages, lands, tenements, and hereditaments 
 belonging, or in any wise appertaining, or to 
 or with the same, or any of them, or any part 
 thereof, now or at any time heretofore used, 
 occupied, or enjoyed, or accepted, reputed, 
 deemed, taken, or known as part or parcel 
 thereof, or of any of them ; and the reversion 
 
 VOL. II. K
 
 1 30 Bargain and Sale. 
 
 and reversions, remainder and remainders 
 and the rents, issues, and profits thereof, and 
 every of them, and every part thereof; and 
 alljthe estate, right, title, interest, property, 
 claim , and dem and whatsoever of Jiim the 
 said Daniel Den (party_hereto), in and to the 
 s aid me ssuages, lands, tenements;, and here - 
 ditaments hereby bargained andjsol d^orjn : 
 tended so_to_be, and every of them, ajid 
 Habendum, every part thereof : To Have and To Hold 
 the said messuages, lands, tenements, here- 
 ditaments, and other the premises hereby 
 ^ T ,* J tt^/f Ut^cjf bargained and sold, or intended so to be, 
 '* <- 'V' /y^/^ £&jj w j^ their all t| every of their appurtenances, 
 
 unto the said Edward East, his heirs and/4 ^ 
 assigns jor_ever, to the use of the said Ed- 
 ward East, bis heirs and assigns for ever ; 
 to the intent and purpose that he the said 
 Edward East may become a perfect tenant of 
 the immediate freehold of the messuages, te- 
 nements, lands, hereditaments, and premises 
 hereby bargained and sold, or intended so to 
 be ; to the end that one or more good and 
 perfect common recovery or recoveries may 
 be thereof had and suffered in manner here- 
 inafter mentioned ; for which purpose it is 
 hereby agreed and declared between and by 
 the said parties hereto, that it shall and may 
 vr ^— ^ ^*^*i - ' b e l aw f u i f or the said Francis Foley, at the 
 'a„aftiLf<z/ tcZ*e^*r*Jf costs and charges of the said Daniel Den 
 l'^ '^^y'i. (party hereto), in or as of Easter term now 
 
 , err
 
 Bargain and Sale. 131 
 
 r s 
 
 next ensuing, or some other subseguenUerm, 
 to sue forth and prosecute out of his Ma- 
 jesty's High Court of Chancery, one or more 
 writ or writs of entry, svr disseisin en le post, 
 returnable and to be returned before his Ma- 
 jesty's justices of the Court of Common %l A <*^*~ ? /&ty £y* 
 Pleas at Westminster, thereby demand ing C&^s f- Js.fJf />**#, 
 by apt and convenient names, qualities, nura- ^ j ^^^. 
 
 ber of acres, and other descriptions, the said ^^^^ y ^ X^/^ 
 messuages, lands, tenements, hereditaments, <^j^ d^ cO^c^r*^ £^>£. 
 ?I^Pr e I?Jses, with the aprjmrteiiances, against 7 . ^ ^^J, 
 
 the said Edwa rd East : to which said writ or ^ ^^> ^^.^ <^1 ^ * 
 
 WntS_of_egJ ry _ t. hipjjjairj Ed ward Fa s t_shalL A/ r ^^« ^^7 A^,a/£f£» 
 
 appear gratis, either in his own person, or by v y^*^^"^^ ^ 
 
 _r.r: & l — -K- 1 J- (j^p .^ £. y* ^ ^ 2< 
 
 his attorney in that behalf lawfully _ajiiho= ' / 'i ' . ^ , 
 rized, andj^oiich l ovej _^o jwauiajoi^LllieL^aid- 4 c^iL^J-y v? ^ufO^ 
 Daniel Den (party hereto), who shall also ap-31_<±±^ ~ **;^*y 
 p^ear gra tis, eit her in his own p roper person , y / A ^ / ^W^^ 
 or by his attorney in that behalf Fawftrlly m^W^>^^^ 
 authorized, and enter into_the warranty, and ^ J - ***£/*ry? ^f-^y 
 vouch over to warranty the common vou chee ** 1* ^^^^ cYr ^ ' — — 
 of the same_court, who shall also appear gra- +■ - ; ?/ y e . M^*- <^ 1, 
 tis, and imparl, and after imparlance, make ^J^^f^L £5Z^% v 
 default, so that judgment may be thereupon 'Uf^-^r^A^ + fe^' 
 liaTand"given~'for* th^ aid Francis Foley "to * Y*- <"<~^~$ *f Y* l ' 
 
 ~v-if- 
 
 '<ur* 
 
 recover the said messuages, lands, tenements, ^^^ee. tnn*.*^****- **"" 
 hereditaments, and premises hereby bargained y'.&*<>*** iCt^cA? <fy<&:<f 
 
 iii -.11 1 • 1 fr i,<? /^i—^ £e*-'n~y £U*2 f 
 
 and sold, or intended so to be, against the^/'^ iU ^^Ls, *L*M 
 said Edward East, and for the said Edward &J* <• ^/-r^^Xf+f**- 
 East to recover in value against the said * J * / T "~? ^ ^***^ 'fl 
 ~ **z Daniel Den (party hereto), and for the said r^»J^kx iy h^&lJ 
 
 r2
 
 Y 
 
 132 Bargain and Sale. 
 
 fc«^t,tJ- <« /**/ Daniel Den (party hereto) to recover in va- 
 lue against the common vouchee' ; and that 
 ' . execution shall and may be thereupon had 
 
 tc ''/ ' and awarded accordingly, and every other 
 
 ' uLaM- <~y 6*° .'-"/'act and thing done and executed needful and 
 «, Mc-A^r 6* d<^^ o* requisite for suffering and perfecting such 
 uttu^je^L Ly ^/^-^ common recovery or recoveries with vouchers 
 ^ m£z£ ^&*f> f*^° as aforesaid : And it is hereby agreed and de- 
 ,J.Jt<4y sr *< y? ■^"■""cla.red between and by the said parties to 
 ^c^^^yy- # ^T these presents, that from and immediately 
 f ju after suffering and perfecting the said com- 
 -/-*«.*- /? <& mon recovery or recoveries, so as aforesaid, 
 tjs. X 6c£i < IctJsc/^ or in any other manner to be suffered, the 
 „ ,t<^r*-* £***-*? >?^ ? sa ^ common recovery or recoveries, and all 
 
 M 
 
 f 
 
 ^ u^fc-S-i- and every other common recovery or reco- 
 i^r-^4 ■+" c ? ^ "^ veries, fines, conveyances, and assurances in 
 /£ fc "+$- y" rff^ lne ^ aw whatsoever, heretofore had, made, 
 t </< ' of~H '^^^ rtc ^levied, suffered, or executed, or hereafter to 
 ,.cc£zf- 6 &^-*' - Y* be had, made, levied, suffered or executed, of 
 / m f&z*~ fr*ft**y the aforesaid messuages, lands, tenements, 
 
 tr v ^ t£^.-"-^- 
 
 *A 
 
 ""hereditaments, and premises, or any of them, 
 
 or any part thereof, by or between the sa' ' 
 
 7 ?p " / /At ^^ parties to these presents, or any of them, or 
 
 t, ' - / ^/^^whereunto they or any of them are or shall 
 
 2 ' t-r*" f crUJ-+^ c ^ e parties or privies, shall be and enure, and 
 
 J, jJzM**. <~f**r* -^^hall be adjudged, deemed, construed, and 
 
 ^ err . z a^/ &^fAJr*^!<Y* taken, to be and enure, and that the reco- 
 
 st&eM rr / M^-<rr ^" y ~~veror or recoverors in the said recovery or re- 
 
 c^<^f sy*^ l ' L coveries named or to be named, and his or 
 
 y€ M .--*■ k- y /^ their heirs, shall stand and be seised of the 
 
 v- Te^fjyco^ sa id messuages^ lands, tenements, neredita-J 
 
 fi^^iS* ^ 
 
 S7 
 
 Lsi-t^*? f^rt*- tffiy 
 
 I s - 
 
 
 d
 
 Bargain and Sale. 133 
 
 ments, and premises, and every of them, and ' 
 every part thereof, to and for the only use and 
 behoof of the said Daniel Den (party hereto), 
 his heirs and assigns, for ever; and to and 
 for no other use, intent, or purpose whatso- 
 ever. In witness, &c. 
 
 ffU^o **"*?? AW^/^^^ 6-y.. • *r *<..±<i-* &£** <&U* JcA &** £"< 
 fa Cor** .,«*"■**- ^A^/lc. efficS as^rc&f&^c* At t/ f 4 < /f /iu/ Ay '/-' / ^ / ' 
 £&& <f <&& <£ 4td6st /— >' ^ r : M^t^^yS^dy faf Y^ , 
 
 <A jl4<J*-4Lo /Wa/iOfL/ ^c<.c f- <?U > <r*-t . <**■ *f- <**4L*rt«~A<te^ ^<i.<c& *-« 
 
 K 3 

 
 134 
 
 LEASE and RELEASE, 
 
 Bargain and Sale for a Year. 
 
 This Indenture, made, &c. Between George 
 Gross of in the county 
 
 of Middlesex, Esquire, of the one part, and 
 Henry Howard of 
 
 Gentleman, of the other part; Wiitnt&mt), 
 That the said George Gross, in consideration 
 of five shillings of lawful money of Great 
 Britain, to him in hand paid by the said Henry 
 Howard, at or before the sealing and delivery 
 of these presents (the receipt whereof is here- 
 by acknowledged), Hath bargained and sold, 
 and by these presents doth bargain and sel! 
 unto the said Henry Howard, his executors, 
 administrators, and assigns, all those mes- 
 suages or tenements, lands and hereditaments, 
 &c. &c. together with all and singular the 
 houses, outhouses, edifices, buildings, barns, 
 dove-houses,stables, yards,gardens,orchards, 
 lights, easements, ways, waters, water-courses, 
 commons, commodities, privileges, emolu-
 
 Lease and Release. 135 
 
 ments, advantages, hereditaments, and ap- 
 purtenances whatsoever, to the said mes- 
 suages or tenements, lands and heredita- 
 ments, belonging, or in any wise appertain- 
 ing, or accepted, reputed, taken, or known 
 as part, parcel, or member thereof, and the 
 reversion and reversions, remainder and re- 
 mainders, rents, issues, and profits of the 
 premises, and of every part thereof: To Have 
 and To Hold the said messuages, lands, te- 
 nements, hereditaments, and all and singular 
 other the premises hereinbefore bargained and 
 sold, or intended so to be, and every part 
 and parcel thereof, with their and every of 
 their rights, members, and appurtenances, 
 unto the said Henry Howard, his executors, 
 administrators, and assigns, from the day 
 next before the day of the date of these pre- 
 sents, for and during, and unto the full end 
 and term of one whole year thence next en- 
 suing, and fully to be complete and ended ; 
 yielding and paying therefore the rent of one 
 peppercorn at the expiration of the said term, 
 if the same shall be lawfully demanded; to 
 the intent and purpose, that, by virtue of 
 these presents, and of the statute for trans- 
 ferring uses into possession, the said Henry 
 Howard may be in the actual possession of 
 the same premises, and may thereby be en- 
 abled to accept and take a grant and release 
 of the freehold, reversion, and inheritance 
 of the same premises, and of every part and 
 k 4
 
 136 Lease and Release. 
 
 parcel thereof, to the said Henry Howard, 
 his heirs and assigns, to the uses, and for the 
 intents and purposes to be declared by an- 
 other indenture of three parts, already pre- 
 pared, and intended to be dated the day next 
 after the day of the date hereof. In witness, 
 &c.
 
 RELEAS 
 
 " , / - a~, ~i **<*. r; net' 4~C4*4*K " /nC «-S?- 
 
 v> <* ij.To a Purchaser and his Trustee to prevent 
 }7jh Dower. . ^ 
 
 xISIhis Indenture of three parts, made the ^^ j&r<L%z*s^ 
 day of (to be dated the M-f"***^'*** ~ 
 
 stfday after the date of the bargain and sale -^J ,^^^/fe 
 K/or a year), &c. &c. Between George Gross ~ 
 
 i \ I of in the county of Middlesex, A ^^^t 
 
 \ ^ ^j Esquire, of the first part, Henry Howard of JUu, *f ,Su - l 
 \ ^SA in the aforesaid county, ~ {be+^Z- <** 
 
 y ^ n 4 Gentleman, of the second part, and John 
 ^^ : | James of the same place, Linen Draper (a 
 1 V. tr trustee nominated by and on the behalf of 
 s V^Vthe said Henry Howard), of the third part: 
 s VV5> 8®J*W** the said Henry Howard hath con- The contract. 
 3 I \ * tracted and agreed with the said George 
 
 \V 
 
 t u • rf ** ***** * '* 4*7 
 
 \^ Sj thereinafter granted ancl Released, or inte nded 
 v | ^ iso_to_be, and the inheritance thereof, in fee- 
 \ ** \ simple, with the appurtenances, free from in- 
 . ^ 3 cumbrances, at or for the price or sum of 
 ^U Hhree thousand pounds : ^UoU) tin* EntotttUte 
 l^j V^TOtttrwtf), That in_ pursuance of the said firr c*.^ o c m **&* 
 \\\ 

 
 138 Lease and Release. 
 
 otTi/i .<.<c<C agreement, and in consideration of the sum 
 of three thousand pounds of lawful money 
 
 of Great Britain to the said George Gross 
 
 z.J 
 
 in hand well and truly paid by the said 
 Henry Howard, at or before the sealing and 
 delivery of these presents, the payment and 
 receipt of which said sum of three thousand 
 pounds (being in full for the absolute purchase 
 
 r - ;ti iL.y^ r < ^of the messuages or tenements, and heredita- 
 
 ments hereinafter granted and released, or in- 
 
 '{ yJt'aJ^*^^'- tended so to be) he the^ said George Gross 
 
 y v iU /^f^^Adoth h ereby ac knowledge; and from the same, 
 
 ';^' t '- and or and from every part thereof, doth ac-' J 
 
 quit, release, and discharge the said Henry 
 Howard, his heirs, executors, administrators, 
 . and assigns, and every ojfjthejn for ever by 
 
 ***■ ■' ' ' ~ ' Reference to the rjiesepr^ejrjrts^ he the said George G ross Hath 
 
 V ■LC^'^ae^ bargain and sale ' , \ . 1 , , ,. , < , ; r 
 
 * t i+sr4~ 7 < for a vear. granted, bargained, sold, aliened, released, 
 .^vW^^j^/* "* and connrme d, and by these presents Doth 
 /La£Tu~t*U. grant, bargain, sell, alien, release, and con- 
 firm unto the said Henry Howard (in his ac- 
 tual possession now being by virtue of a bar- 
 gain and sale to him thereof made by the said 
 George Gross, in consideration of five shil- 
 lings, in and by one indenture, bearing date 
 the day next before the day of the date of these 
 presents, for the term of one whole year, com- 
 mencing from the day next before the day of 
 the date of the same indenture of bargain and 
 sale, and by force of the statute made for 
 transferring uses into possession) and to his 
 Parcels. heirs, all those the messuages, landsV&c. &C-
 
 Lease and Release. 13D 
 
 together with allouthouses,edifices, buildings, 
 
 ^ Common words. 
 
 barns, dove-nouses, stables, yards, gardens,or- 
 chards, ligh ts, ea se ments , ways, waters, water- 
 
 courses^commons, commodities, privileges, 7 ™*^ #r++£*4**MC&u 
 emoluments, a d vantages, hereditaments, and CtrtU £^r fi . <p /i*.^ //fe^ 
 app urtenances whateioevjjr to the said mes- ^»i<^^v ^<r^^«. 
 suages or tenements, lands and hereditaments, 
 
 /< d-i-i'.a, Si ct-t<t^f-{<.^w <--■£?' 
 
 
 belonging or in any wise appertaining, or ac- ' 
 
 cepted, reputed, taken, or known as part, par- 
 cel, or member thereof; and the reversion and 
 reversions, remainder and remainders, yearly 
 and other rents, issues, and profits of all and 
 singular the premises ; and also all the estate, 
 right, title, interest, use, trust, property, pos- 
 session, benefit, claim, and demand whatso- 
 ever, both at law and in equity, of him the 
 said George^ Gross of, in, to, or out of the Copies of title. 
 said messuages or tenements, lands, heredita- 
 ments, and premises hereby granted and re- 
 leased, or intended so to be, and every of 
 them, and every part and parcel thereof j^to-/^ "y r y " ^ *^<&** 
 gether with true and attested copies of all - , ' '? ' „ 
 
 deeds, evidences, and writings comprised or u* /<&£*- & r c s*c***e.jt^ 
 mentioned in the schedule hereunder written; **•<**"/ M &rf s&f-x* 
 the first of such copies, to be made, written, " ^* " Zl T^T 
 and delivered by and at the costs and charges r ^ .p^^ ^^Jiey 
 of the said George Gross ; but the second <f*z~ c*^ ^». ,i<A,/£t 
 and all future copies thereof to be made, '^^ **" -*"*'* - 
 written, or taken at the reasonable request, 
 costs, and charges of the said Henry Howard, 
 Jiis heirs or assigns: To Have and to Hold 
 the said messuages or tenements, lands, here- 

 
 1 40 Lease and Release. 
 
 ditaments, and other the premises hereby 
 
 granted and released, or intended so to be, 
 
 with the appurtenances, unto the said Henry 
 
 Totheuseof Howard and his heirs for_ever a : Nevertheless, 
 
 the purchaser's nn a1 r U /• i 
 
 appointees. * ° the use of such person or persons, for such 
 estate or estates, interest or interests, and to 
 and for such intents and purposes, and under 
 and subject to such powers, provisoes, decla- 
 rations, and agreements, and in such manner 
 and form as he the said Henry Howard by any 
 deed or deeds, instrument or instruments in 
 writing, to be sealed and delivered by him in 
 presence of, and attested by, two or more cre- 
 dible witnesses, shall, from time to time, or at 
 any time or times, direct, limit, or appoint ; 
 and in default of, and until such direction, 
 limitation, or appointment, and as to such 
 part or parts of the premises of which no com- 
 plete direction or appointment shall be made, 
 or to which any such direction or appoint- 
 ment shall not extend, to the use of the said 
 Henry Howard and his assigns during his 
 life, without impeachment of waste, and from 
 and after the determination of that estate by 
 any means in his lifetime, to the use of the 
 said John James and his heirs, during the life 
 of the said Henry Howard, in trust neverthe- 
 less for the said Henry Howard and his as- 
 signs ; and from and after the determination 
 of the estate so limited in use to the said 
 
 1 See Note I.
 
 JLease and Release. 141 
 
 John James, and his heirs, during the life of 
 the said Henry Howard, to the only use and 
 behoof of the said Henry Howard, his heirs 
 and assigns for ever ; and to, for, and upon no 
 other use, trust, intent, or purpose whatso- 
 ever b . : And the said George Gross, for him- Coven 1 an ^ for ?^rl'L / ^f\ 
 
 _ o — . ,~ ~~~~ the title. /j*- \7' • ^ ^' 
 
 self, his^ejrs^jexecutorSj, an d^ a d m i n jgtrato rs , fc«s*^&*<*J' £^££'1 
 doth hereby: covenant, promise, and agree to * t jj «• ^^7 ^o^u^^M 
 and with the said Henry Howard, his ap-^ 4* & ^*~& y°fr 
 pointees, heirs, and assigns, in manner iol- ■ '^ 4 ^ kM . ^e™ /?** r /*s-- 
 lowing; (that is to say,) That (for and not-^/^-yf^^e^^^— /• 
 withstanding; any act, deed, matter, or thing /^"^^ ^^f ^^-^Z 
 .whatsoever, made, done, executed, commit- ^ t ^c<^ ******£'$ ■ 
 ted, occasioned, or suffered by him the said^y^ •^^*£w^A t /^ 
 George Gross, or any of his ancestors, to the Y £ "ff^- * V*' 
 contrary) he the said George Gross is, at the " *7 *** e ^Z* ; , •_ 
 time of the sealing and delivery of these pre-^ /</*_** e+*4<* 
 sents, lawfullv, rightfully, and absolutely , , . , * s *. 
 
 seised of, or well and sufficiently entitled lo, ^ /^j j*/**. *-SA </fr\ 
 the messuages or tenements, lands, heredita- ^^t^ytrr-e**' ^v*^^ 
 ments, and premises hereby granted and re- 7 / / / # ^ 
 leased, or intended so to be, with the appur- rr-J* fri f*>: cr«~< n '< x + i - i 
 tenances, of and in a good, sure, perfect, law- — > -^^~ 
 ful, absolute, and indefeasible estate of inhe- 
 ritance in fee-simple, without any manner of 
 (condition, contingent proviso, power of revo- 
 
 b See Note K. There is executed in the purchaser 
 
 no objection to the power by the statute; upon the 
 
 of appointment in this case, ground, as sir Francis 
 
 by reason of the seisin in Bacon expresses it (Bac. 
 
 fee-simple having been Uses, 64.), that " the law 
 
 granted to Henry Howard ; " will not admit fractions 
 
 for the use (subject to the " of estates." See 1 vol. 
 
 power) is, it is conceived, 91. et seq.
 
 1 42 Lease and ltelease. 
 
 rcation, or limitation of any new or other 
 fuse or uses, or any other matter, restraint, 
 cause, or thing whatsoever, to alter, change, 
 charge, revoke, make void, lessen, or deter- 
 mine the same estate : And that (for and 
 notwithstanding any such act, matter, or 
 I thing as aforesaid) he the said George Gross 
 hath in himself good right, full power, and 
 Iti ftsi^Ji <t 66*/t'tis. lawful and absolute authority to grant, bar- 
 6ttrJ r^j ^f>^ ti^^gmn, sell, alien, release, convey, and assure 
 t? ^ul <i? 4«^p£B,st ^ ne messuages or tenements, lands, heredita- 
 ments, and premises hereby granted and re- 
 leased, or intended so to be, and every part 
 fc , f c u^xj^j s^L 4<^. f <^ thereof, with the appurtenances, unto the said 
 J j. <zx**T*tf <M Henry Howard and his heirs, in manner aforg- 
 
 jsaid, and according, to the true intent and 
 ) y+ j* jc*-<-~*~ tZZzMauSt mean ing of these presents ? And also, that it 
 i r . yfc t£Jc sjfy gha]| be lawful for the gaj j Henry Howard, his 
 
 SeJ-cJc '& A+*f*r6L appointees, heirs, ajnd assigns, from time to 
 
 'J </-&cy^y4 ^J*^ time, and at all times hereafter, peaceably 
 
 sfix*fo<6 ^f"^/. and quietly to have hold, use, occupy, pos- 
 
 ^^^ f ' i *y sess ' and enm the said messua s es or tene " 
 
 ^^'/^^Ue^fments, lands, hereditaments, and premises 
 k~*r^ &*«*** *ZU<h* hereby granted and released, or intended so 
 4/u~t^- **■ /*^**^" to be, and every part thereof, with the appur- 
 <^*^ fi ^JT/Jtl " tenances, and to receive and take the rents, 
 ZJjtZtZ^r <p£ issues, and profits thereof, and of every part 
 ^U^ ^** c£cit*~ fy thereof, from Midsummer-day now last past, 
 ' : withoutanv let, suit, trouble, denial, eviction,: 
 
 0* ^J? 4^ Jj.^^ 
 
 / J?&<L a<ts/y rejection, interruption, or disturbance of, from, 
 c/c^r^^r"-^ or by the said George Gross or his heirs, oil 
 
 j-f-C^Sl- 
 
 £^~ wC 20 
 
 *^ifyjL7j?L any other person or persons lawfully or equi ' 
 
 f Z^. <f XLZ ^ <** o^ &* <** & *^<* "Of ^> *"?«.
 
 Lease and Release, 143 
 
 tably claiming or to claim by, from, through, 
 under, or in trust for him or them, or any of 
 them, or by, from, through, or under any of 
 his ancestors ; and that free and clear, and 
 freely and clearly acquitted, exonerated, and 
 discharged, or otherwise by him the said 
 George Gross, his heirs, executors, and ad- 
 ministrators, well and sufficiently saved, de- 
 fended, kept harmless, and indemnified, of, 
 from, and against all and all manner of for- 
 mer and other gifts, grants, bargains, sales, 
 leases, mortgages, jointures, dowers, and all 
 right, and title of dower, uses, trusts, wills, 
 intails, statutes merchant and of the staple, 
 recognizances, judgments, extents, execu- 
 tions, annuities, legacies, payments, rents, and 
 arrears of rent, forfeitures, re-entries, cause 
 and causes of forfeiture and re-entry, and of, 
 from, and against all and singular other es- 
 tates, titles, troubles, charges, and incum- 
 brances whatsoever, had, made, done, com- 
 mitted, executed, occasioned, or suffered by 
 him the said George Gross, or any of his an- 
 
 testors, or by any other person or persons 
 awfully or equitably claiming or to claim by, 
 trom, through, under, or in trust for him, 
 hem, or any of them ; And moreover, that ^y ,y/ 4^^^> /* 
 he the said G eorge Gross and his heirs, and ' 
 
 every other person having, or lawfully or 
 equitably claiming, or who shall or may have, 
 
 c See note L.
 
 144 Lease and Release. 
 
 or lawfully or equitably claim any estate, 
 
 /■H 
 
 ^uz t^Jc-^ncc right, title, trust, or interest in, to, or out of 
 
 ^*>Wr * ^ e messuages or tenements, lands, heredita- 
 
 f***V / ments, and premises hereby granted and re- 
 
 i& /^recJt^f leased, or intended so to be, or an y part- there - 
 
 of, by, from, through, under, or in trust for 
 ret** <£e*~ sr ^^^him_or them, or by, from, through, or under 
 'cr- ye 44 S<£ t any of hjsj mcest ors, shall and will from time 
 
 z • to time, and at all times hereafter, upon every 
 
 reasonable request, and at the proper costs^ 
 and charges in the law of the said Henry 
 Howard, his appointees, heirs, or assigns, 
 make, do, acknowledge, levy, suffer, and exe- 
 cute, or cause or procure to be made, done, 
 ^ jjp* acknowledged, levied, suffered, and executed, 
 
 all su ch further_and othejMawfuj and reason- 
 Jf ic6s ju+az^ fi+pt**. able acts, deeds, ajnd_ things*, devices, convey- 
 
 
 ctrpt^t /tJsZnc&s ance s, and assurances in the law whatsoever, 
 for the further, better, more perfectly and ab- 
 
 effiicJu*dCy solutely granting, releasing, conveying, ^as- 
 
 suring, and confirming the messuages or tene- 
 ments, lands, hereditaments, and premises 
 hereby granted and released, or int ended so 
 to be^ and_eve_rx part thereof, with the ap- 
 
 6 ye u^es <H**4uevr pTirtenances /unto the sa id Hejpj^JHoward, 
 
 ' *' * ^ f his appointees, heirs, and assigns, or other- 
 
 *"^' wise, as he or thev shall direct or appoint; 
 be the same by fine_, feoffment, common re- 
 covery, deed inrqlled or not inrolled, or any 
 other matter of record, or not of record^ or 
 ^iherwisje_Jioyv^qever JL as by the said Henry 
 Howard, his appointees, heirs, or assigns, or
 
 Lease and Release. 145 
 
 his or their, or any of their counsel in the 
 law, shall be reaso nabl y. ad vised, or devised, 
 and required ; so that no such further assur- 
 ance or assurances contain, or imply, any fur- 
 ther or other warranty, or covenant, than 
 against the person or persons, who shall make / **/ 
 and execute the same, and his, her, or their v&fi&S* 
 heirs, executors, and administrators' acts a nd 
 deeds only ; and so that the person or per- 
 sons, who_shall be r equired to make and exe- y Cu ^ / ^ c ^ / '* ' c<r 
 cute any such further assurance or assurances, ^/^ ^ r ' * 
 
 be not compelled, nor compellable, for^the 
 
 making or doing: thereof, to ero or travel from &*> /*£*^ c - c *~ ■ "f ' 
 his, her, or their dwejjiD g or respective dwell- t<r A ~*~* 
 ings, or usual place or place s of abo de or re - 
 sidence. &tttl \Xfytxt&% the several title-deeds 
 and writings relating to the said heredita- 
 ments and premises do concern the title not 
 only of the hereditaments hereby granted and 
 released, or intended so to be, but also of 
 divers other estates and hereditaments of, or 
 belonging to, the said George Gross, situate 
 and being in the said county of Middlesex, 
 and in other counties in England ; and there- 
 fore it hath been agreed, that the same several 
 deeds and writings shall remain in the cus- 
 tody and possession of tne said George Gross, 
 his heirs and assigns, upon his entering into 
 such covenant for the production thereof as 
 hereinafter is contained: &tt& tf>* XtiKXt til 10 
 Indenture futtfjer W£i\\\t%*ti% That in pur- covenant to 
 suance of the said last-mentioned agreement, deed" cc 
 
 VOL. II. L
 
 1 40 Lease and Release. 
 
 and for the consideration hereinbefore ex- 
 pressed, he the said George Gross, for him- 
 self, his heirs, executors, and administrators, 
 doth hereby further covenant, promise, and 
 agree, to and with the said Henry Howard, 
 his appointees, heirs, and assigns, that he the 
 said George Gross, his heirs, executors, ad- 
 ministrators, or assigns, shall and will, from 
 time to time, and at all or any time or times 
 hereafter (unless prevented by fire or any 
 other inevitable accident), upon every reason- 
 able request, and at the proper costs and 
 charges of the said Henry Howard, his ap- 
 pointees, heirs, or assigns, produce and show 
 forth, or course to be produced and shown 
 forth, to the said Henry Howard, his appoint- 
 tees, heirs, or assigns, or to such person or 
 persons as he or they shall direct, desire, or 
 require, or at any trial, hearing, or examina- 
 tion in any court of law or equity, or other 
 judicature, or upon the execution of any 
 commission in England, as occasion shall be 
 or require, the several deeds, evidences, and 
 writings relating to, or concerning the title 
 of the messuages or tenements, lands, here- 
 ditaments, and premises hereby granted and 
 released, or expressed and intended so to be, 
 mentioned in the schedule thereof hereunder 
 written or hereunto annexed, and every or 
 any of them, and permit and suffer copies of, 
 or extracts from, all or any of the same deeds 
 or writings to be made, written, and taken,
 
 Lease and Release. J 47 
 
 for the manifestation, defence, and support of 
 the estate, right, title, interest, property, or 
 possession of the said Henry Howard, his ap- 
 pointees, heirs, and assigns, of, in, or to all or 
 any part of the messuages or tenements, lands, 
 hereditaments, and premises hereby granted 
 and released, or expressed and intended so to 
 be, with the appurtenances. In witness, &c. 
 
 l2
 
 148 
 
 Lease and Release. 
 
 Marriage Settlement by Lease and Release. 
 
 The Release. 
 
 Partus. This Indenture, &c. Between Adam Ash of, 
 
 &c. of the first part, Benjamin Brown of, &c. 
 and Celia Brown spinster, one of the daugh- 
 ters of the said Benjamin Brown, of the se- 
 cond part, Cornelius Crosby of, &c. and 
 Charles Crompton of, &c. of the third part, 
 David Dun of, &c. and Daniel Drew of, &c. 
 of the fourth part, and Edgar Edwards of, 
 &c. and Edmund Eames of, &c. of the fifth 
 part. 
 
 The intended 
 marriage. 
 
 The considera- 
 tions. 
 
 $H!$i)tVCa& a marriage is intended to be 
 shortly had and solemnized between the said 
 Adam Ash and Celia Brown; and the said 
 Benjamin Brown hath agreed to pay the sum 
 of £ unto the said Adam Ash, as 
 
 and for the marriage portion of the said Celia 
 Brown his daughter: 
 
 iHoto tfita 3fntrettture WAitnefWttt), That 
 in consideration of the said intended mar-
 
 Lease and Release. 149 
 
 viage, and of the sum of^ , of law- 
 ful money of Great Britain, to the said Adam 
 Ash in hand paid by the said Benjamin 
 Brown, at or before the sealing or delivery 
 of these presents ; the receipt and payment 
 whereof he the said Adam Ash doth hereby 
 acknowledge, and of and from the same, and 
 every part thereof, doth release and acquit 
 the said Benjamin Brown, his heirs, execu- 
 tors, administrators, and assigns, and every of 
 them, for ever, by these presents ; and for 
 making such provision and settlement for and 
 upon the said Celia Brown, and the issue 
 of the said intended marriage, as hereinafter 
 mentioned ; and for settling and assuring the 
 hereditaments hereinafter granted and releas- 
 ed, or intended so to be, with the appurte- 
 nances, to the uses, upon the trusts, for the 
 inteuts and purposes, and under and subject 
 to the powers, provisoes, declarations, limita- 
 tions, and agreements hereinafter limited, ex- 
 pressed, and declared of and concerning the 
 same ; and for and in consideration of the 
 sum of five shillings of like money to the 
 said Adarn Ash in hand paid by the said Cor- 
 nelius Crosby aud Charles Crorapton, at or 
 before the sealing and delivery of these pre- 
 sents (the receipt whereof is hereby acknow- 
 ledged), he the said Adam Ash Hath granted, 
 bargained, sold, released, and confirmed, and 
 by these presents Doth grant, bargain, sell, 
 release, and confirm unto the said Cornelius 
 l 3
 
 150 Lease and Release. 
 
 Crosby and Charles Crompton (in their ac- 
 tual possession now being by virtue of a bar- 
 gain and sale to them thereof made by the 
 said Adam Ash, in consideration of five shil- 
 lings, by indenture bearing date the day next 
 before the day of the date hereof, for the 
 term of one whole year, commencing from 
 the day next before the day of the date of 
 the same indenture of bargain and sale, and 
 by force of the statute made for transferring 
 uses into possession), and to their heirs, all, 
 &c. ; and all houses, outhouses, &c, and the 
 reversion and reversions, remainder and re- 
 mainders, and yearly and other rents, issues, 
 and profits of all and singular the premises ; 
 and all the estate, right, title, interest, trust, 
 property, claim, and demand whatsoever of 
 him the said Adam Ash, of, in, to, or out of 
 the said messuages, lands, tenements, heredi- 
 taments, and premises, and every of them, 
 and every part and parcel of them, and every 
 of them : 
 
 Habendum. To Have and to Hold the messuages or 
 
 tenements, lands, hereditaments, and other 
 the premises hereby granted and released, or 
 intended so to be, with their and every of 
 their rights, members, and appurtenances, 
 unto the said Cornelius Crosby and Charles 
 Crompton, and their heirs for ever ; never- 
 theless to the uses, upon the trusts, for the
 
 Lease and Release. ,15.1 
 
 intents and purposes, and under and sub- 
 ject to the powers, provisoes, limitations, de- 
 clarations, and agreements hereinafter limit- 
 ed, expressed, and declared of and concern- 
 ing the same ; that is to say, 
 
 To the use of the said Adam Ash, his heirs, To the use of 
 
 the intended 
 
 and assigns, until the said intended mar- husband in fee, 
 
 . P until marriage ; 
 
 riage shall be had and solemnized ; and from and afterwards 
 and immediately after the solemnization 
 thereof, 
 
 To the use of the said David Dun and Da- To the use of 
 
 trustees for 
 
 niel Drew, their executors, administrators, ninety-nine 
 
 i ■, years ; Re- 
 
 and assigns, for and during, and unto the full mainder 
 end and term of ninety-nine years thence 
 next ensuing, and fully to be complete and 
 ended; upon the trusts, and subject to the 
 provisoes and agreements hereinafter express- 
 ed and declared of and concerning the same ; 
 and from and after the end, expiration, or 
 other sooner determination of the said term 
 of ninety-nine years, and in the mean time 
 subject thereto, and to the trust thereof, 
 
 To the use of the said Adam Ash and his To the use of 
 assigns, for and during the term of his natu- hubudfor 
 ral life, without impeachment of or for any J£ ; Remail1 " 
 manner of waste; and from and after the 
 determination of that estate by forfeiture or 
 otherwise, 
 
 l4
 
 152 
 
 Lease and Release. 
 
 To the use of 
 trustees to pre- 
 serve contin- 
 gent remain- 
 ders ; 
 Remainder 
 
 To the use of the said Cornelius Crosby 
 and Charles Crompton and their heirs,during- 
 the life of the said Adam Ash, In Trust to 
 support the contingent uses and estates here- 
 inafter limited from being defeated or de- 
 stroyed, and for that purpose to make entries 
 or bring actions, as the case may require ; yet, 
 nevertheless to permit and suffer the said 
 Adam Ash and his assigns to receive and take 
 the rents, issues, and profits thereof, and of 
 every part thereof, to and from his and their 
 own use and benefit, and from and immedi- 
 ately after the decease of the said Adam Ash, 
 
 To the use and To the use, intent, and purpose, that the 
 
 intent, that . 
 
 the intended said Celia Brown (in case she shall survive 
 
 wife may re- . 
 
 ceivearent- the said Adam Ash), and her assigns, shall 
 
 charge for her .. „ i /• i i < 
 
 jointure and in and may, trom and alter the decease of the 
 
 bar of dower ; •t»i * i 11 • ,1 
 
 with said Adam Ash, yearly have, receive, take, 
 
 and enjoy, for and during the term of her 
 natural life, one annual sum or yearly rent- 
 charge of ^ of lawful money of 
 Great Britain, to be yearly issuing, going, 
 and payable out of, and charged and charge- 
 able upon, all and singular the messuages, 
 lands, tenements, hereditaments, and premises 
 hereinbeforegranted and released, or intended 
 so to be; such yearly rent-charge or sum of 
 3& to be in full for the jointure of 
 the said Celia Brown, and in lieu, bar, and 
 satisfaction of and for her whole dower or
 
 Lease and Release. 153 
 
 thirds at common law, or by or on account 
 of custom, free-bench or widow's part, which 
 she can or may, or otherwise might have, or 
 claim, of, in, or out of all and every, or any 
 of the freehold, copyhold, or customary ma- 
 nors, messuages, lands, tenements, and here- 
 ditaments whereof or whereunto the said 
 Adam Ash now is, or at any time or times 
 during the said intended coverture, shall be 
 seised or entitled, for any estate of freehold 
 or copyhold of inheritance, or to which dower 
 or free-bench is incident; and to be paid to 
 the said Celia Brown or her assigns, at or in 
 the common dining-hall of Lincoln's Inn, in 
 the county of Middlesex, on the four most 
 usual feasts, or days of payment of rent in 
 the year, (that is to say) on the twenty-fifth 
 day of March, the twenty-fourth day of 
 June, the twenty -ninth day of September, and 
 the twenty-fifth day of December, in every 
 year, by equal and even portions ; free from 
 taxes, and without any other deduction what- 
 soever ; the first quarterly payment to begin 
 and be made on such of the said days as shall 
 first happen after the decease of the said 
 Adam Ash. 
 
 And to and for this further use, intent, Power of di$- 
 
 j i i • t i training, 
 
 and purpose, that in case the said annual sum 
 or yearly rent-charge of £ , or any part 
 
 thereof, shall at any time or times be in 
 arrear or unpaid, by the space of fourteen
 
 154 Lease and Release. 
 
 days next over or after any of the said 
 days, whereon the same ought to be paid as 
 aforesaid, then and so often, it shall and may 
 be lawful to and for the said Celia Brown and 
 her assigns, during her natural life, into and 
 upon the said messuages, lands, tenements, 
 hereditaments, and premises so charged with 
 the said annual sum, or yearly rent-charge, 
 of £ as aforesaid, and into and upon 
 
 every or any part or parcel thereof, to enter 
 and distrain ; and the distress and distresses 
 then and there found to take, lead, drive, 
 carry away, and impound, and in pound to 
 detain and keep, until the said annual sum or 
 yearly rent-charge, and all arrears thereof, 
 togetherwith all costs, charges, and expenses, 
 occasioned and incurred by taking and keep- 
 ing such distress and distresses, shall be fully 
 paid and satisfied ; and in default of payment 
 thereof, or of any part thereof respectively, 
 in due time after such distress or distresses 
 shall be taken, to appraise, sell, and dispose 
 of, or caused to be appraised, sold, and dis- 
 posed of, such distress or distresses, or other- 
 wise to act therein according to the due 
 course of law, and in like manner as in cases 
 of distress taken for non-payment of rent re- 
 served upon common leases ; to the intent, 
 thatshe the said Celia Brown, and her assigns, 
 shall and may be fully paid and satisfied the 
 said annual sum or yearly rent-charge of 
 £ and all arrears thereof, and all costs,
 
 Lease and Release. 1 55 
 
 charges, and expenses attending the non-pay- 
 ment and recovery of the same. 
 
 And to and for this future use, intent, and and power of 
 
 entry. 
 
 purpose, that in case the said annual sum or 
 yearly rent-charge of £ or any part 
 
 thereof, shall at any time or times be in ar- 
 rear or unpaid by the space of twenty-eight 
 days next after any of the said days herein- 
 before mentioned and appointed for payment 
 thereof, then and so often as the same shall 
 happen (although no formal or legal demand 
 thereof shall be made), it shall and may be 
 lawful to and for the said Celia Brown and her 
 assigns, into and upon all and singular the said 
 hereditaments and premises, or into and upon 
 any part thereof, in the name of the whole, 
 to enter, and the same to have, hold, occupy, 
 possess, and enjoy, and the rents, issues, and 
 profits thereof, and of every part thereof, to 
 have, receive, and take to and for her and 
 their own use and benefit, until she and they 
 shall thereby and therewith, or by any other 
 ways, be fully paid and satisfied the said an- 
 nual sum, or rent-charge of £ and 
 all arrears thereof, and all such arrears of the 
 same, as shall grow due or incur during the 
 time that she or they shall by virtue of such 
 entry or entries be in possession of the pre- 
 mises, or any part thereof; together with all 
 costs, charges, and expenses whatsoever at- 
 tending, or occasioned by, the non-payment
 
 156 Lease and Release. 
 
 or recovery of the same, or any part thereof, 
 or in relation thereto ; such possession, when 
 taken, to be without impeachment of waste. 
 
 Remainder ^nd as, to, for, and concerning all and sin- 
 
 (subject to the ' ° 
 
 £eu«o?t?u£ S u l ar tne messuages, lands, tenements, here- 
 tees for five ditaments, and premises hereby granted and 
 
 hundred years. * * ° 
 
 released, or intended so to be, with the appur- 
 tenances, from and after the decease of the 
 said Adam Ash, subject to, and charged with, 
 the said yearly rent-charge or sum off 
 and to the remedies hereby provided for the 
 recovery thereof, To the use of the said Ed- 
 gar Edwards and Edmund Eames, their exe- 
 cutors, administrators, and assigns, for and 
 during, and unto the full end and term of five 
 hundred years thence next ensuing, and fully 
 to be complete and ended, without impeach- 
 ment of or for any manner of waste ; upon 
 the several trusts, to and for the several in- 
 tents and purposes, and under and subject to 
 the several provisoes and agreements herein- 
 after expressed and declared of and concern- 
 ing the same term ; and from and after the 
 end, expiration, or other sooner determination 
 of the said term of five hundred years, and in 
 the mean time subject thereto, and to the 
 trusts thereof, and charged and chargeable as 
 aforesaid. 
 
 To the use of To the use of the first son of the body of 
 
 the first son in 
 
 tail male; Re- the said Adam Ash on the body of the said 
 
 mainder
 
 Lease and Release. 157 
 
 Celia Brown, his intended wife, to be begot- 
 ten, and of the heirs male of the body of such 
 first son lawfully issuing; and for default of 
 such issue, 
 
 To the use of the second, third, fourth, To the use of 
 
 11 11 i the second and 
 
 fifth, and all and every other the son and sons other sons in 
 of the body of the said Adam Ash on the ma inder' 
 body of the said Celia Brown to be begotten, 
 severally, successively, and in remainder, one 
 after another, as they and every of them shall 
 be in seniority of age and priority of birth, 
 and of the several and respective heirs male 
 of the body and bodies of all and every such 
 son and sons lawfully issuing ; the elder of 
 such sons, and the heirs male of his body 
 issuing, being always to be preferred and to 
 take before the younger of such sons, and the 
 heirs male of his and their body and respec- 
 tive bodies issuing; and for default of such 
 issue, 
 
 To the use of all and every the daughter To the use of 
 and daughters of the said Adam Ash on the utenwtsin 
 body of the said Celia Brown, his intended tSTglmend; 
 wife, to be begotten, equally to be divided 
 between or amongst them, share and share 
 alike, as tenants in common, and not as 
 joint tenants, and of the several and respec- 
 tive heirs of the body and bodies of all and 
 every such daughter and daughters lawfully with cross re- 
 
 i ii ■ 'i mainders be- 
 
 lssmng; and in case there shall be a failure of tweenthem; 
 
 with remainder
 
 158 Lease and Release. 
 
 issue of any one or more of such daughters, 
 then as well as to the original share or shares 
 of, as the share or shares surviving or accru- 
 ing to, such last-mentioned daughter or 
 daughters, or her or their issue, to the use of 
 all and every other the daughter and daugh- 
 ters of the said Adam Ash on the body of 
 the said Celia Brown to be begotten, equally 
 to be divided between or among them, if more 
 than one, share and share alike, as tenants in 
 common, and not as joint tenants, and of the 
 several and respective heirs of their bodies 
 issuing ; and in case all such daughters but 
 one shall happen to die without issue, or if 
 there shall be but one such daughter, then to 
 the use of such one daughter, and of the heirs 
 of her body lawfully issuing; and for default 
 of such issue, 
 
 To the nseof To the use of the said Adam Ash, his heirs 
 
 the intended .. . . 
 
 husband in fee. and assigns tor ever. 
 
 Trusts declared And as, to, for, and concerning the said 
 ninety-nine term of ninety-nine years hereinbefore limit- 
 ed in use to the said David Dun and Daniel 
 Drew, their executors, ad min istrators, and as- 
 signs as aforesaid, it is hereby agreed and de- 
 clared, that the same is so limited to them 
 upon the trusts, for the intents and purposes, 
 and under and subject to the agreements and 
 provisoes hereinafter expressed and declared 
 of and concerning the same ; (that is to say,)
 
 Lease and Release. 159 
 
 Upon trust, that they the said David Duo in trust for se- 
 
 curing pin mo- 
 ney fc 
 wife; 
 
 and Daniel Drew, and the survivor of them, ney forth 
 and the executors, administrators, and assigns, 
 of such survivor, shall and do, during the joint 
 lives of the said Adam Ash and Celia Brown, 
 his intended wife, by, with, and out of the 
 annual rents, issues, and profits of the here- 
 ditaments aud premises comprised in the said 
 term of ninety-nine years, or by mortgage, 
 sale, or other disposition of the said heredita- 
 ments and premises, or any of them, or any 
 part thereof, for all or any part of the said 
 term of ninety- nine years therein, or by 
 bringing actions against any of the tenants or 
 occupiers of the premises for the rent then in 
 arrear, or by all or any of the said ways or 
 means, or by any other ways or means, levy 
 and raise the annual sum off of lawful 
 
 money of Great Britain, free and clear of and 
 from all taxes and deductions whatsoever; 
 and do and shall pay, apply, and dispose 
 of the same by quarterly payments, on the 
 days of payment hereinbefore mentioned, by 
 even and equal portions, unto such person 
 or persons, and for such intents and purposes 
 only, as the said Celia Brown, by any writing 
 or writings under her hand, from time to 
 time, notwithstanding her coverture (but 
 not by way of anticipation), shall direct or 
 appoint; and in default of such direction or 
 appointment, shall and do pay the said annual
 
 16*0 Lease and Release. 
 
 sum of £ or so much thereof, whereof 
 
 she shall make no such direction or appoint- 
 ment as aforesaid, into the proper hands of 
 the said Celia Brown, for her sole and sepa- 
 rate use and benefit, and not to be subject to 
 the debts, contracts, engagements, or control 
 ofthe said Adam Ash, her intended husband, 
 and the receipt or receipts in writing of the 
 said Celia Brown, or of such person or per- 
 sons as she shall from time to time direct or 
 appoint to receive all or any part of the said 
 annual sum of £ shall from time to time 
 
 notwithstanding the said intended coverture, 
 be good and effectual receipts and discharges 
 for such sums of money, as in such receipts 
 and discharges shall berespectively expressed 
 to be received ; the first quarterly payment of 
 the said annual sum of £ to be made on 
 
 such ofthe said days of payment, as shall first 
 happen after the solemnization ofthe said in- 
 tended marriage: 
 
 he* "Kst And u P on further trus *> t»at they the said 
 h°u r sb h and ntended David Dun and Daniel Drew, their executors, 
 administrators, and assigns, shall and do per- 
 mit and suffer the said Adam Ash and his as- 
 signs, to receive and take the residue and 
 overplus ofthe said rents, issues, and profits 
 of the premises, after full payment and satis- 
 faction ofthe said annual sum off and 
 all costs and expenses attending the execu- 
 tion of the aforesaid trusts, or in relation
 
 Lease and Release. l(Jl 
 
 thereto, to and for his and their own use and 
 benefit. 
 
 Provided always,and it is hereby declared Provision,' that 
 
 . . , no more than 
 
 to be the true intent and meaning or the said two years' ar- 
 parties hereto, that if at the time of the de-ney shall be re- 
 cease of either of them the said Adam Ash " 
 and Celia Brown, or at any time during their 
 joint lives, there shall, through the wilful neg- 
 lect or default of her the said Celia Brown 
 or her trustees, be more in arrear of the said 
 annual sum of ^£ than two years' pay- 
 
 ment thereof, then, and in every such case, no 
 further or other sum shall be raised to answer 
 such arrears, than what shall amount in the 
 whole to two years' payment of the said an- 
 nual sum; and the residue of the said arrears 
 shall sink into the inheritance of the same 
 premises ; and the said trustees, to whom the 
 same premises are so limited, their executors, 
 administrators, and assigns, shall thenceforth 
 be freed, exempted, and discharged from the 
 levying, raising, and payment of such residue 
 of the said arrears. 
 
 Provided also nevertheless, that imme- cesser of this 
 diately after the decease of either of them the tenn " 
 said Adam Ash and Celia Brown first dying, 
 and after payment of all arrears (if any) of the 
 said annual sum of ^g (or of so much of 
 
 such arrears as according to the proviso and 
 declaration next hereinbefore expressed ought 
 
 VOL. II. M
 
 ]02 Lease and Release. 
 
 to be paid, in case of there being more in arrear 
 than two years' payment thereof), and when 
 the said David Dun and Daniel Drew, and 
 each of them, and their respective executors, 
 administrators, and assigns, shall be fully re- 
 'mbursed and satisfied all costs, charges, and 
 expenses (if any) occasioned by, or relating to, 
 the trusts of the said term of ninety-nine years 
 (which they are hereby respectively empower- 
 ed to raise by all or any of the ways or means 
 aforesaid, and to retain accordingly); then 
 and immediately thenceforth, the said term 
 of ninety-nine years of and in the said mes- 
 suages, lands, tenements, hereditaments, and 
 premises therein comprised, or so much there- 
 of as shall remain undisposed of for the pur- 
 poses aforesaid, shall cease, determine, and be 
 utterly void to all intents and purposes what- 
 soever. 
 
 Trusts declared And as to, for, and concerning the said 
 
 of the term of. r /» 1 ii 1 • -i r 1 • 
 
 500 years. term or hve hundred years hereinbefore limit- 
 ed in use to the said Edgar Edwards and Ed- 
 mund Eames, their executors, administrators, 
 and assigns as aforesaid, it is hereby agreed 
 and declared, that the same is so limited to 
 them upon the trusts, for the intents and 
 purposes, and under and subject to the pro- 
 visoes, declarations, and agreements herein- 
 after mentioned, expressed, and declared of 
 and concerning the same; (that is to say,)
 
 Lease and Release. 163 
 
 Upon Trust, in case the said yearly rent- i n trust, in the 
 
 i r rt , ,i /< first place, for 
 
 charge or sum or ,§£ or any part thereof, secU ringthe 
 shall be behind and unpaid by the space of railed'to'the 1 '" 
 forty days next over, or after, any or either of Wlfe 
 the said days of payment, whereon the same is 
 appointed to be paid as aforesaid (although no 
 formal or legal demand thereof shall be made); 
 then, and so often, that they the said Edgar 
 Edwards and Edmund Eames,orthe survivor 
 of them, his executors or administrators, 
 shall and do from time to time, by and out of 
 the annual rents, issues, and profitsof the mes- 
 suages, lands, tenements, hereditaments, and 
 premises comprised in the same term of five 
 hundred years, or by demising, leasing, sell- 
 ing, or mortgaging the same premises or any 
 of them, or any part thereof, for all, or any 
 part of, the same term, or by bringing actions 
 against the tenants or occupiers of the same 
 premises, or any of them, for the rents then 
 in arrear, or by such other ways and means, 
 as to them or him shall seem meet, raise and 
 levy such sum and sums of money, as shall 
 be sufficient from time to time to pay and sa- 
 tisfy the said yearly rent-charge, or sum of 
 ^£ or so much thereof, as shall from time 
 to time happen to be in arrear and unpaid ; 
 together with all loss, costs, charges, damages, 
 and expenses which the said Celia Brown, 
 or her assigns, or the said Edgar Edwards 
 and Edmund Eames, or the survivor of 
 them, his executors or administrators, or any 
 
 m 2
 
 1 64 JLcase and Release. 
 
 of them, shall sustain, expend, or be put 
 unto, for or by reason of the non-payment of 
 the same yearly rent-charge, or sum of ^g 
 or any part thereof, at the days and times, 
 and in manner hereinbefore appointed for the 
 payment thereof; and shall and do pay, ap- 
 ply, and dispose of the same monies accord- 
 ingly: 
 
 And upon further Trust, in case there shall 
 Iate ' he 
 
 rtions uc 
 
 „ r A A 
 
 children ; 
 
 And in trust in 
 
 toraisepSrtion's De one or more child or children of the said 
 SSf Adam Ash on the body of the said Celia 
 Brown, his intended wife, to be begotten 
 (other than, or not being an eldest or only 
 son for the time being entitled, under the 
 limitations hereinbefore contained, to the 
 said messuages, lands^ tenements, and heredi- 
 taments, either in possession or in remainder 
 expectant upon the decease of the said A. 
 Ash), that they the said Edgar Edwards 
 and Edmund Eames, or the survivor of them, 
 his executors or administrators, shall and do, 
 after the decease of the said Adam Ash, or in 
 the lifetime of the said Adam Ash with his 
 consent, to be signified by some writing un- 
 der his hand and seal (but subject and with- 
 out prejudice to the raising and paying the 
 said yearly rent-charge or sum of ^ 
 limited to the said Celia Brown for her life, 
 and to such remedies for recovering the same 
 as aforesaid), by mortgage, sale, demise, or 
 other disposition of the messuages, lands, te-
 
 JLease and Release. 165 
 
 ncments, hereditaments, and premises com- 
 prised in the said term of five hundred years, 
 or of a competent part thereof, for all or any 
 part of the said term, or by and out of the 
 rents, issues, and profits thereof, or by bring- 
 ing actions against the tenants or occupiers 
 of the same premises, or any of them, for the 
 rents then in arrear, or by all or any of the 
 said ways and means, or by such other ways 
 and means as they the said Edgar Edwards 
 and Edmund Eames, or the survivor of them, 
 his executors or administrators, shall think 
 fit, raise and levy, or borrow and take up at 
 interest, for the portion or portions for such 
 child or children (other than, or not being an 
 eldest or only son for the time being entitled as 
 aforesaid), the sum or sums of money herein- 
 after mentioned ; (that is to say) if there shall if buto « e . 
 
 1 \ J ' £4000 ; 
 
 be but one such child (other than, or not being 
 an eldest or only son entitled as aforesaid), the 
 sum of four thousand pounds of lawful money 
 of Great Britain, as or for his or her portion ; to be paid ac - 
 and to be paid and payable to, and to become recti™ of the 
 vested in, such child (be the same a younger ns an 
 son or a daughter) at or upon such age, day, 
 or time as the said Adam Ash by any deed or 
 writing, to be sealed and delivered by him in 
 the presence of and attested by, two or more 
 credible witnesses, or by his last will and tes- 
 tament in writing, to be by him signed and 
 published in the presence of, and attested by, 
 three or more credible witnesses, shall direct 
 
 M 3
 
 IGo* JLease and llelcase. 
 
 and in default or appoint ; and in default of such direction 
 
 to aTn^aTS 1 ' or appointment, to be paid to such child, 
 
 °i d or^mr- at ueH1 g a younger son, at his age of twenty-one 
 
 na s e ; years, or being a daughter, at her age of 
 
 twenty-one years, or day of marriage (which 
 
 shall first happen), if the same age or time 
 
 shall happen after the decease of the said 
 
 Adam Ash ; but if the same shall happen in 
 
 the lifetime of the said Adam Ash, then the 
 
 portion of such child shall be considered as 
 
 a vested interest in him or her at or upon 
 
 the same age or time ; and in that case the 
 
 payment thereof shall be postponed until 
 
 after the decease of him the said Adam Ash, 
 
 unless he shall signify his consent in writing 
 
 under his hand and seal, that the same shall 
 
 be raised and paid in his lifetime ; and if 
 
 if but two there shall be two such children and no more 
 
 d? e U n,£6ooo; (other than, or not being an eldest or only 
 
 son entitled as aforesaid), then the sum of 
 
 and if three or six thousand pounds of like lawful money 
 
 for their portions ; and if there shall be three 
 
 or more such children (other than, or not 
 
 being an eldest or only son for the time 
 
 being entitled as aforesaid), then the sum of 
 
 eight thousand pounds of like lawful money 
 
 to be shared ac- for their portions : The said sum and sums 
 
 cording to the . . . 
 
 husband's ap- of money intended for the portions of such 
 children (being more than one), to be shared 
 and divided between or among them in such 
 parts or proportions, and to vest in, and be 
 paid to, such children respectively at or upou 
 
 pointiuent
 
 Lease and Release. 107 
 
 such ages, clays, or times, and to be subject 
 to such charges, provisoes, and limitations 
 (such charges and limitations being for the 
 benefit of some or one of them), and in such 
 manner, as the said Adam Ash, by any deed 
 or deeds, writing or writings, to be by him 
 sealed and delivered in the presence of, and 
 attested by, two or more credible witnesses, 
 or by his last will and testament in writing, 
 to be signed and published by him in the pre- 
 sence of, and attested by, three or more cre- 
 dible witnesses, shall direct or appoint; and and in default 
 
 11 of appointment, 
 
 in default of such direction or appointment, tobe equally 
 
 rr ' divided. 
 
 to be equally divided between or among 
 such children, share and share alike ; the 
 share or shares of such of the said children, 
 as shall be a younger son or sons, to be paid 
 to him or them, at his or their age or respec- 
 tive ages of twenty one years; and the share 
 or shares of such of them, as shall be a daugh- 
 ter or daughters, to be paid to her or them, 
 at her or their age or respective ages of twen- 
 ty-one years, or day or respective days of mar- 
 riage (which shall first happen), in case the 
 same shall happen after the decease of the 
 said Adam Ash ; but in case any of such 
 children, being a younger son or sons, shall 
 attain his or their age or respective ages of 
 twenty-one years, or being a daughter or 
 daughters, shall attain her or their age or 
 respective ages of twenty-one years, or be 
 married as aforesaid, in the lifetime of the 
 m i
 
 108 Lease and Keleasc. 
 
 said Adam Ash, then the share or shares of 
 such younger son or sons so attaining the age 
 of twenty-one years, and of such daughter or 
 daughters so attaining that age, or marrying 
 in the lifetime of the said Adam Ash, shall 
 be a vested interest or vested interests in him, 
 her, or them respectively; but the payment 
 of such share or shares shall be postponed till 
 after the decease of the said Adam Ash, un- 
 less he shall signify such consent as aforesaid, 
 that the same or any of them shall be raised 
 and paid in his lifetime. 
 
 Declaration and Provided always, and it is hereby agreed 
 case of°a par- and declared between and by the said parties 
 ^appoint- j iere t 0j t} ia t j n case an y appointment shall be 
 
 made in pursuance of the powers aforesaid, 
 or either of them, which shall only extend to 
 a parts or parts of the sum or sums of money, 
 hereby intended for the portion or portions 
 of such child or children as aforesaid, such 
 appointment, shall be valid and effectual not- 
 withstanding the non-appointment of the re- 
 maining part or parts of such portion or por- 
 tions; butin that case any daughter or younger 
 son entitled to a share under such appoint- 
 ment shall be entitled to no further share of 
 and in the remaining or unappointed part or 
 parts of the monies, hereby intended for por- 
 tions as aforesaid, unless and until he or she 
 shall have brought his or her appointed share 
 into hotchpot, and shall have accounted for
 
 Lease and Release. 169 
 
 the same accordingly, unless the person 
 making such appointment shall declare a con- 
 trary intention in writing. 
 
 And upon further Trust, that they the said Provision for 
 Edgar Edwards and Edmund Eames, and the 
 survivor of them, his executors or adminis- 
 trators, shall and do, after the decease of the 
 said Adam Ash (subject and without preju- 
 dice as aforesaid), by and out of the annual 
 rents, issues, and profits of the messuages, 
 lands, tenements, hereditaments and pre- 
 mises comprised in the said term of five hun- 
 dred years, levy and raise for the maintenance 
 and education of all or any of such children, 
 for whom a portion or portions is or are 
 hereby intended to be provided as aforesaid, 
 such yearly sum and sums of money as here- 
 inafter mentioned; (that is to say,) until such 
 child or children shall respectively attain the 
 age of twelve years, such yearly sum for 
 each of them as will be equivalent to the 
 interest of the portion hereby intended for 
 him or her as aforesaid, after the rate of two 
 pounds for every one hundred pounds by the 
 year ; and from and after the age of twelve 
 years, and until such portion or respective 
 portions shall become payable, such yearly 
 sum for each such child, as will be equivalent 
 to the interest of the portion hereby intended 
 for him or her as aforesaid, after the rate of 
 fourpounds for every one hundred pounds by
 
 170 Lease and Release. 
 
 the year; and also shall and do, at their or 
 his discretion, either themselves pay and ap- 
 ply such sums for the maintenance and edu- 
 cation of such child or children accordingly, 
 or shall and do (if they the said trustees or 
 trustee for the time being shall think proper) 
 pay the said several sums of money to the 
 guardian or guardians for the time being of 
 such child or children respectively, to be by 
 such guardian or guardians applied for or 
 towards the maintenance and education of 
 such child or children respectively; and it is 
 hereby agreed and declared, that such re- 
 spective sums for maintenance as aforesaid, 
 shall be paid by half-yearly payments on the 
 days following ; (that is to say,) on the 
 day of and day 
 
 of in each and every year, by 
 
 even and equal portions ; the first payment 
 thereof to begin and be made on such of the 
 said days, as shall first happen after the de- 
 cease of the said Adam Ash. 
 
 clause of sur- Provided always, and it is hereby agreed 
 
 vivorship. 1 i 1 it 1 i 1 • i 
 
 and declared between and by the said par- 
 ties hereto, that if there shall be more than 
 one such child, for whom portions are hereby 
 provided as aforesaid, and any of them, 
 being a younger son or sons, shall depart this 
 life, or become an eldest or only son, entitled 
 as aforesaid, under the age of twenty-one 
 years, or being a daughter or daughters shall
 
 Lease and Release. 171 
 
 depart this life under that age, without be- 
 ing, or having been married ; then and in 
 such case, and in default of and subject to 
 any such appointment as aforesaid, the por- 
 tion hereby intended to be provided for each 
 such daughter so dying, and for each such 
 son so dying, or becoming an eldest or 
 only son, or so much and such part there- 
 of as shall not be sooner advanced for any 
 younger son or sons as herinafter men- 
 tioned, shall accrue and belong to the sur- 
 vivor or survivors, and other or others of such 
 children (other than, or not being an eldest 
 or only son entitled as aforesaid), and shall 
 vest in, and be paid to him, her, or them 
 (if more than one), in equal parts and shares, 
 at or upon such and the same ages, days, and 
 times respectively, and in such and the same 
 manner as is hereinbefore declared, touching 
 or concerning his, her, or their original por- 
 tion or portions, or as near thereto as circum- 
 stances will permit; and thatincase any other 
 or others of such children shall die, or become 
 an eldest or only son entitled as aforesaid, be- 
 fore such accruing or surviving part or share, 
 parts or shares, shall become vested as afore- 
 said, then all and every such accruing or 
 surviving part or share, parts or shares, shall 
 again be subject and liable to such new 
 chance, contingency, and condition of accruer 
 to the survivor or survivors, and other or 
 others of such children, as before is declared 
 touching his, her, and their original portion
 
 172 Lease and llelease. 
 
 and portions : But so nevertheless, that no 
 one child shall by survivorship or otherwise 
 have, or be entitled to, more than the sum 
 of four thousand pounds for his or her por- 
 tion ; nor any two children more than the 
 sum of six thousand pounds between them 
 for their portions. 
 
 Power forthe Provided always, and it is hereby agreed 
 
 trustees to raise 111 i 1 i 1 ..1 • 1 *• 
 
 a part of the and declared between and by the said parties 
 advancement 1 of hereto, that it shall and may be lawful to and 
 
 younger sons. for ^ ^ E(]gar Edwardg an( J EdlUUnd 
 
 Eames, and the survivor of them, his execu- 
 tors or administrators, at any time or times in 
 the lifetime of the said Adam Ash, with his 
 consent, signified by some deed or deeds, 
 writing or writings, to be sealed and delivered 
 by him in the presence of, and to be attested 
 by, two or more credible witnesses, and at 
 any time or times after his decease, by and 
 of the proper authority of the said Edgar 
 Edwardsand Edmund Eames, or the survivor 
 of them, his executors or administrators, as 
 they or he shall see occasion, to levy and 
 raise by all or any of the ways and means 
 as aforesaid (but subject nevertheless and 
 without prejudice as aforesaid), any sum or 
 sums of money, in part of the portion or 
 portions hereby intended for such of the said 
 children, as shall be a younger son or sons; 
 and shall and do, with the consent in writing 
 of the said Adam Ash during his life, and
 
 Lease and Release. 173 
 
 after his decease, then at their or his dis- 
 cretion, pay and apply the monies, so to be 
 raised, for the purpose of placing and putting 
 such younger son or sons, for whom, or in part 
 of whose then apparent portion or portions 
 such sum or sums of money shall be so raised, 
 in or to any trade, business, profession, or 
 employment, or otherwise, for his or their 
 benefit, or advancement in the world, not- 
 withstanding his or their portion or portions 
 shall not then have become payable as afore- 
 said ; so nevertheless, that such sum and 
 sums of money, so to be raised as last men- 
 tioned, shall not exceed one half part of the 
 apparent portion or portions of such younger 
 son or sons respectively; and so nevertheless, 
 that such sum and sums of money shall go, 
 be considered, and taken as part of the por- 
 tion or portions hereby provided for such 
 child or children, for whose benefit such sum 
 or sums shall be raised as aforesaid. 
 
 And upon this further Trust, that they the intrust, to P er- 
 said Edgar Edwards and Edmund Eames, the persons in 
 
 d.i . n ii i • j i remainder to 
 
 the survivor or them, his executors and receive the 
 
 administrators, do and shall permit and suf- re2 us ° 
 fer the person or persons, to whom the next 
 and immediate reversion or remainder ex- 
 pectant upon the determination of the said 
 term of five hundred years of and in the 
 premises therein comprised, shall for the 
 time being belong, to receive the residue or
 
 174 Lease and Release. 
 
 surplus of the rents and profits, which shall 
 remain after, and not be applied in or to- 
 wards the execution and performance of the 
 trusts hereby declared of the said term of five 
 hundred years. 
 
 No sale until a Provided always, That no demise, sale, or 
 
 portion shall 
 
 become payable mortgage, shall be made for raising such 
 portion or portions as aforesaid, until some 
 one of the said portions shall become payable 
 under or by virtue of the trusts aforesaid, 
 unless with the consent of the said Adam 
 Ash, testified as aforesaid, or unless the same 
 shall be made for the purpose of raising any 
 sum or sums of money for the advancement 
 of a younger son or sons, pursuant to the 
 power or authority hereinbefore in that be- 
 half contained. 
 
 Money advanc- Provided also, and it is hereby agreed and 
 
 ed by the father ' . 
 
 in his lifetime declared between and by the said parties here- 
 to be considered 
 
 as part of the to, that in case the said Adam Ash shall, in 
 
 portions. . . . 
 
 his lifetime, give or advance any sum or sums 
 of money for or towards the preferment or 
 advancement of any of the said children, 
 being a younger son or sons, in the way of, 
 or for the placing him or them in any profes- 
 sion, business, or employment, or being a 
 daughter or daughters, in marriage ; then and 
 in such case, if any such sum or sums of 
 money so to be advanced, shall be equal to, 
 or exceed the portion or portions hereinbe-
 
 Lease and Release. 175 
 
 fore intended to be provided for such child 
 or children respectively, such advanced sum 
 or sums shall be accounted in full for the 
 portion or portions so as aforesaid hereinbe- 
 fore provided for such child or children re- 
 spectively; but if such advanced sum or sums 
 shall be less than the portion or portions 
 hereinbefore provided or intended for such 
 child or children respectively, then such ad- 
 vanced sum or sums shall be accounted as 
 part of the portion or portions so as aforesaid 
 hereinbefore provided or intended for such 
 child or children respectively ; and in case 
 any child or children shall be so advanced as 
 aforesaid by the said Adam Ash, he the said 
 Adam Ash shall (unless he shall declare a 
 contrary intention in writing) stand in the 
 place of the child or children so advanced 
 as aforesaid in respect of the sum or sums of 
 money so by him given by way of advance- 
 ment as aforesaid, and to the extent of such 
 advancement shall be considered as a pur- 
 chaser of the share or shares of such child or 
 children. 
 
 Provided also, and it is hereby further cesser of the 
 agreed and declared, That when the trusts term ' 
 hereinbefore declared of and concerning the 
 same term shall have been executed and per- 
 formed, or satisfied, or shall have become un- 
 necessary, or incapable of taking effect, and 
 the costs and charges (if any) of the trustees
 
 17G Lease and Release. 
 
 of the same term, their executors and ad- 
 ministrators, in and about the execution and 
 performance of the same trusts, shall have 
 been fully paid and satisfied (and which they 
 are hereby respectively authorized and em- 
 powered to levy and raise by all or any of 
 the ways and means aforesaid, and to retain 
 accordingly) ; then and immediately thence- 
 forth the said term of five hundred years of 
 and in the premises therein comprised, or so 
 much thereof as shall remain unsold and un- 
 disposed of for the purposes aforesaid, shall 
 cease, determine, and be utterly void to all 
 intents and purposes whatsoever. 
 
 Power enabling Provided always, and it is hereby agreed 
 
 the husband to 
 
 make leases, and declared, that it shall and may be lawful 
 to and for the said Adam Ash, from time to 
 time during his life, and after his decease, 
 then to and for the guardian or guardians 
 for the time being of any child or children 
 of the said Adam Ash, on the body of the 
 said Celia Brown to be begotten, who by 
 virtue of, or under the limitations hereinbe- 
 fore contained, shall be entitled to the pos- 
 session or receipt of the rents and profits of 
 the hereditaments and premises hereby granted 
 and released, or intended so to be, from time 
 to time, during the minority or respective 
 minorities of such child or children to de- 
 mise or lease all or any part or parts of the 
 hereditaments and premises hereby granted
 
 Lease and Release. 177 
 
 and released, or intended so to be, with the 
 appurtenances, to any person or persons, for 
 any term or number of years, not exceeding 
 twenty-one years in possession, and not m 
 reversion, or by way of future interest ; so 
 that there be reserved and made payable on 
 every such lease, during the continuance 
 thereof, the best and most improved yearly 
 rent or rents, to go along with, and be inci- 
 pent to, the immediate reversion or remainder 
 of the premises so to be leased, that can or 
 may be reasonably had or gotten for the 
 same ; without taking any fine, premium, or 
 foregift, for the making thereof; and so 
 that in every such lease there be contained a 
 condition of re-entry on the non-payment of 
 the rent or rents to be thereon or thereby re- 
 spectively reserved, by the space of twenty- 
 one days next after the same shall become 
 due and payable ; and so that the lessee or 
 the respective lessees, to whom such lease or 
 leases shall be made, seal and deliver a coun- 
 terpart or counterparts or such lease or leases; 
 and so that none of the lessees, to whom 
 any such lease or leases shall be made, be, by 
 any clause or words therein contained, au- 
 thorized to commit waste, or exempted from 
 punishment for committing waste ; any thing 
 herein contained to the contrary thereof not- 
 withstanding. 
 
 VOL. II. N
 
 178 Lease and Release. 
 
 Power of sale Provided always, and it is hereby agreed 
 and declared between and by the said parties 
 to these presents, that it shall and may be 
 lawful to and for the said Cornelius Crosby 
 and Charles Crompton, and the survivor of 
 them, and the heirs of such survivor, and 
 they and he are hereby authorized and em- 
 powered, at any time or times hereafter, at 
 the request, and by the direction of the said 
 Adam Ash and Celia Brown during their 
 joint lives, and in case the said Celia Brown 
 shall depart this life in the lifetime of the 
 said Adam Ash, then at the request and by 
 the direction of him the said Adam Ash du- 
 ring his life (such request and direction to be 
 testified by some writing or writings under 
 the hands and seals of the said Adam Ash and 
 Celia Brown, or under the hand and seal of 
 the said Adam Ash, in case he shall be 
 the survivor of them, to make sale, alien, 
 and dispose of, or to convey in exchange 
 for, or in lieu of, other messuages, lands, or 
 hereditaments, to be situate somewhere in 
 that part of Great Britain called England, or 
 in Wales, all or any part of the hereditaments 
 hereby granted and released, or intended so 
 to be, with the appurtenances, and the inhe- 
 ritance thereof in fee-simple, to any person 
 or persons whomsoever, either together or in 
 parcels, and for such price or prices in money, 
 or for such equivalent or recompense in mes- 
 suages, lands, or hereditaments, as to them
 
 JLease and Release. 1 7.0 
 
 the said Cornelius Crosby and Charles Cromp- 
 ton, or the survivor of them, or his heirs, shall 
 seem reasonable; and for the intents and pur- 
 poses aforesaid, or any of them, it shall and 
 may be lawful to and for the said Cornelius 
 Crosby and Charles Crompton, and the sur- 
 vivor of them, and the heirs of such survivor, 
 at such request, and by such direction, and 
 so testified as aforesaid, by any deed or deeds, 
 writing or writings, to be by them the said 
 Cornelius Crosby and Charles Crompton, or 
 the survivor of them, or his heirs, sealed and 
 delivered in the presence of, and attested by, 
 two or more credible witnesses, to revoke, 
 determine, and make void all and every the 
 uses, estates, trusts, limitations, powers, 
 provisoes, and agreements hereinbefore limit- 
 ed, expressed, declared, and contained, of and 
 concerning the hereditaments so to be sold or 
 exchanged, or any part thereof; and by the 
 same, or any other deed or deeds, writing or 
 writings, to be by him or them sealed and de- 
 livered, and attested as aforesaid, to limit and 
 appoint, direct and declare, such use or uses, 
 estate or estates, trust or trusts of the heredi- 
 taments, the uses whereof shall be so revoked, 
 which it shall be thought necessary or expe- 
 dient to limit, declare, or appoint in order to 
 effect such sale, exchange, or disposition as 
 aforesaid ; and that upon any such exchange 
 as aforesaid, it shall and may be lawful for the 
 said Cornelius Crosby and Charles Crompton, 
 
 N 2
 
 180 Lease and Itelease. 
 
 or the survivor of them, or his heirs, to re- 
 ceive or take any sum or sums of money by 
 way of equality of exchange ; and also upon 
 payment of any money to arise by such sale of 
 the said hereditaments, or any part thereof, 
 or to be received or taken for or by way of, 
 equality of exchange, it shall and may be 
 lawful to and for the said Cornelius Crosby 
 and Charles Crompton, or the survivor of 
 them, or his heirs, to give and sign receipts 
 for the money, for which the same shall be 
 so sold, or so to be paid for equality of ex- 
 change ; which receipts shall be sufficient dis- 
 charges to the person or persons paying the 
 same respectively for the money, for which 
 the same shall be so given ; or for so much 
 thereof as in such receipts shall be respec- 
 tively acknowledged or expressed to be re- 
 ceived ; and that the person or persons paying 
 the same respectively, and taking such re- 
 ceipt or receipts for the same as aforesaid, 
 shall not afterwards be obliged to see to the 
 application, or be in any wise answerable or 
 accountable for any loss, misapplication, or 
 non-application of such money, or any part 
 thereof: Provided nevertheless, and it is here- 
 by also agreed and declared between and by 
 the said parties hereto, that when all or any 
 part or parcel, or parts or parcels, of the said 
 hereditaments hereby made saleable as afore- 
 said, shall be sold in pursuance of these pre- 
 sents for a valuable consideration in money,
 
 Lease and Release. 181 
 
 and also when any sum or sums of money 
 shall be received for equality of exchange in 
 pursuance of the power hereinbefore contain- 
 ed ; then they the said Cornelius Crosby and 
 Charles Crompton, or the survivor of them, 
 or his heirs, shall with all convenient speed 
 (with the consent of the said Adam Ash and 
 Celia Brown during their joint lives, or if the 
 said Adam Ash shall survive the said Celia 
 Brown, then with the consent of the said Adam 
 Ash during his life, to be testified by writing 
 under their or his hands or hand, and after the 
 decease of the said Adam Ash, then with the 
 consent in writing of the person or persons, 
 who would, under or by virtue of the limita- 
 tions hereinbefore contained, or to be con- 
 tained or referred to in the settlement or con- 
 veyance hereinafter directed, or any of them, 
 be for the time being in the actual possession, 
 or entitled to the receipt of the rents and profits 
 of the hereditaments to be purchased as here- 
 inafter is mentioned or directed, in case the 
 same were then actually purchased, if such 
 person or persons be of full age, but if not, 
 then with the consent in writing of the guar- 
 dian or guardians for the time being of such 
 person or persons respectively) lay out and 
 invest a all and every the sum and sums of 
 money, which shall arise by such sale or sales, 
 and be paid for equality of exchange as afore- 
 
 * See 1 vol. 423. note b. 
 n3
 
 18'2 Lease and Release. 
 
 said, in the purchase of other messuages, 
 lands, or hereditaments in possession, to be 
 situate, being, or arising somewhere in that 
 part of Great Britain called England, or in 
 Wales, of a clear and indefeasible estate of 
 inheritance in fee-simple (whereof any part, 
 not exceeding one fourth part in any one pur- 
 chase, may, if the parties interested shall 
 think fit, be copyhold of inheritance); and 
 as well the hereditaments so to be purchased, 
 as all and every the hereditaments so to be 
 received in exchange as aforesaid, shall there- 
 after forthwith be settled, conveyed, and as- 
 sured to, for, and upon such uses, trusts, in- 
 tents, and purposes, and with, under, and 
 subject to such powers, provisoes, conditions, 
 and agreements, as are in and by these pre- 
 sents limited, expressed, declared, and con- 
 tained, of and concerning the hereditaments 
 hereby granted and released, or intended so 
 to be; or as near thereto as the deaths of par- 
 ties, and other contingencies, or the circum- 
 stances of the case, will then permit : Pro- 
 vided always, and it is hereby further agreed 
 and declared between and by the said parties 
 to these presents, that in the mean time, and 
 until the money to arise by such sale or sales, 
 or to be received for equality of exchange as 
 aforesaid, shall be laid out and invested in a 
 purchase or purchases in the manner herein- 
 before mentioned, it shall and may be lawful 
 to and for the said Cornelius Crosby and
 
 Lease and Release. 183 
 
 Charles Crompton, and the survivor of them, 
 and the heirs of such survivor, by and with 
 the consent and approbation of the said Adam 
 Ash and Celia Brown, or of the survivor of 
 them, to be testified as last mentioned, and 
 from and after the decease of such survivor, 
 then by and of the proper authority of the 
 said trustees or trustee for the time being, 
 from time to time to place out and invest such 
 sum or sums of money in the public stocks 
 or funds, or at interest upon government or 
 real securities in England and Wales; and from 
 time to time, with such consent, and so tes- 
 tified as aforesaid, or of their or his own proper 
 authority, as the case shall happen, to alter, 
 vary, sell, transfer, and dispose of such stocks, 
 funds, or securities, and again to lay out and 
 invest the money arising by such alteration, 
 sale, transfer, or disposition, upon new or 
 other stocks or funds, or at interest upon 
 government or real securities of the like 
 nature, as often as they shall think proper ; 
 and the interest, dividends, and annual pro- 
 ceeds arising from such stocks, funds, or se- 
 curities, shall from time to time go and be 
 paid to such person or persons, and be applied 
 to such uses, intents, and purposes, and in 
 such manner as the rents and profits of the 
 hereditaments, to be purchased therewith, 
 would go and be payable or applicable, in 
 case such purchase or purchases were actually 
 made. 
 
 N 4
 
 184 Lease and Release. 
 
 Power of ap- Provided always, and it is hereby also 
 
 trustees. e agreed and declared, that in case the trustees 
 in and by these presents nominated and ap- 
 pointed, or any of them, or any succeed- 
 ing or other trustees or trustee of the said 
 trust estate and premises, to be nominated as 
 hereinafter mentioned, or their, or any of 
 their heirs, executors, or administrators, shall 
 happen to die, or be desirous to be discharged 
 of and from, or refuse or become incapable to 
 act in thetrusts or powers hereinbefore express- 
 ed, declared, and contained, before the same 
 trusts shall have been fully performed, exer- 
 cised, or satisfied, then and so often as the same 
 shall happen it shall and maybe lawful for the 
 said Adam Ash and Celia Brown, during their 
 joint lives, and after the decease of either of 
 them, to and for the survivor of them, during 
 his or her life, and after the decease of such 
 survivor, then to and for the surviving, or 
 continuing, or other trustee or trustees of the 
 premises, the trustee or trustees of which 
 shall so die, desire to be discharged, or refuse, 
 or become incapable to act as aforesaid, by 
 any deed or writing under their, his, or her 
 hands and seals, or hand and seal, to nominate, 
 substitute, and appoint any other person or 
 persons to be a trustee or trustees in the place 
 and stead of such trustees or trustee so dying, 
 desiring to be discharged, or refusing or be- 
 coming incapable to act as aforesaid ; and that 
 when and so often as any such new trustees
 
 Lease and Release. 185 
 
 or trustee shall be nominated and appointed 
 as aforesaid, all the said trust estate and pre- 
 mises, the trustee or trustees whereof shall so 
 die, desire to be discharged, or refuse, or be- 
 come incapable to act as aforesaid, shall be 
 thereupon with all convenient speed convey- 
 ed, transferred, assigned, and assured respec- 
 tively (according to the nature and tenure 
 thereof) in such sort and manner, and so that 
 the same shall and may be legally aud effec- 
 tually vested in the newly appointed trustee 
 or trustees jointly with such of the former 
 trustees, as shall be willing and capable to 
 act; or in case there shall be no continuing 
 former trustee, then in such newly appointed 
 trustee or trustees only ; To, for, and upon the 
 uses, trust, intents, and purposes hereinbefore 
 limited, expressed, declared, and contained of 
 and concerning the same; and that the new 
 trustee or trustees, who shall be appointed in 
 the room or stead of the said Cornelius 
 Crosby and Charles Cromptou, or either of 
 them as aforesaid, either alone or jointly with 
 such of them the said Cornelius Crosby and 
 Charles Crompton as shall continue to act, 
 shall and may, either before, or after any such 
 con veyance or assurance as aforesaid, exercise 
 all or any of the powers or authorities here- 
 inbefore reserved or given to the said Corne- 
 lius Crosby and Charles Crompton, and the 
 survivor of them, and the heirs of such sur-
 
 186 Lease and Release. 
 
 vivor as aforesaid"; and that every such new 
 trustee shall and may in all things, and in all 
 respects, act and assist in the management, 
 carrying on, and executing of the trusts, to 
 which he shall be so appointed, as fully and 
 effectually, and with the same power and 
 powers, authority and authorities, as if such 
 new trustee had been originally by these pre- 
 sents nominated and appointed, and as the 
 said trustees of the same trust estates and 
 premises named in these presents are, or 
 would be enabled to do, or might or could 
 have done, under or by virtue of the same, 
 or any clause, power, or proviso hereinbefore 
 contained or implied ; or otherwise, as if such 
 original trustees had been then living and 
 continuing to act under or in execution of 
 the trusts, powers, and authorities reposed in, 
 or reserved to, them in and by these presents. 
 
 Provided also, and it is hereby further 
 agreed and declared between and by the said 
 Clauses of in- parties hereto, that the said several trustees 
 ?ru?tS t0 the m an( * by these presents nominated and ap- 
 pointed, and hereafter to be nominated and 
 appointed by virtue of the said last mentioned 
 power, and each and every of them, their and 
 each and every of their heirs, executors, ad- 
 ministrators, and a signs, shall be charged and 
 chargeable only for so much money as they 
 
 1 See 1 Vol. 439, 442.
 
 Lease and Kelease. 187 
 
 and every of them shall respectively actually 
 receive, by virtue of, or under, these presents, 
 or the trusts aforesaid ; and that any one or 
 more of them shall not be answerable for the 
 other or others of them, nor for the acts, re- 
 ceipts, neglects, or defaults of the other or 
 others of them ; but each of them for his own 
 acts, receipts, neglects and defaults only : nor 
 shall they, or any of them, be answerable or 
 accountable for any person or persons, who 
 is, are, or shall be the receiver or receivers of 
 the rents and profits of the said hereditaments 
 and premises, or any of them, or any part 
 thereof, or in whose hands the same, or any 
 of the aforesaid trust monies, shall or may be 
 deposited or lodged for safe custody ; nor for 
 the insufficiency or deficiency of title in any 
 manors, lands, or hereditaments, which may 
 be had or received by way of exchange, for 
 or in lieu of all or any part of the messuages, 
 lands, tenements, and hereditaments hereby 
 made saleable and exchangeable as aforesaid, 
 or which may be purchased with the money 
 to arise by sale thereof, in case the same 
 shall be sold as aforesaid; nor for the insuf- 
 ficiency or deficiency of any security or se- 
 curities, in or upon which the monies to arise 
 by such sale or sales, or to be received for 
 equality of exchange, or any part thereof, 
 shall or may be placed out or invested as 
 aforesaid ; nor for any misfortune, loss, or da- 
 mage, which may happen in the execution of
 
 188 Lease and Release. 
 
 any of the aforesaid trusts, or in relation 
 thereto, except the same shall happen by or 
 through their own wilful neglects or defaults 
 respectively ; and also that the said several 
 trustees, and each and every of them, their 
 and each and every of their heirs, executors, 
 administrators, and assigns, shall and may, by 
 and out of the monies, which shall come to 
 their respective hands by virtue of these pre- 
 sents, or the trusts aforesaid, * retain to, and 
 reimburse themselves respectively, and also 
 allow to their and his co-trustee and co-trus- 
 tees, all loss, costs, damages, and expenses, 
 which he or they or any of them shall or may 
 respectively suffer, sustain, expend, disburse, 
 be at, or be put unto, or which shall or may 
 be to him, them, or any of them occasioned, 
 for or on account, or by reason or means, of 
 the trusts hereby in them reposed, or the ma- 
 nagement and execution thereof, or otherwise 
 howsoever relating thereto. 
 
 MnufoMhe And tne sa id Adam Ash, for himself, his 
 
 heirs, executors, and administrators, doth 
 hereby covenant, promise, and agree with 
 and to the said Cornelius Crosby and Charles 
 Crompton, their heirs, and assigns, in man- 
 ner following; (that is to say,) That (for and 
 notwithstanding any act, deed, matter, or 
 thing whatsoever, made, done, committed, 
 executed, or suffered by him the said Adam 
 Ash, or any of his ancestors, to the contrary)
 
 Lease and Release. 189 
 
 he the said Adam Ash, now at the time of 
 the sealing and delivery of these presents, is 
 lawfully, rightfully, and absolutely seised of, 
 or otherwise well and sufficiently entitled to 
 the said messuages or tenements, lands and 
 hereditaments hereby granted and released, 
 or expressed, or intended so to be, and of 
 and to every of them, and every part and 
 parcel thereof, with their and every of their 
 rights, members, and appurtenances, for an 
 estate of inheritance in fee-simple; without 
 any manner of condition, trust, power of 
 revocation, or limitation of any new or other 
 use or uses, or other restraint, cause, matter, 
 or thing whatsoever, to alter, change, charge, 
 defeat, revoke, make void, lessen, or deter- 
 mine the same estate : And also, that he the 
 said Adam Ash (for and notwithstanding any 
 such act, matter, or thing as aforesaid) now 
 at the time of the sealing and delivery of 
 these presents, hath in himself good right, 
 full power, and lawful and absolute authority 
 to grant, bargain, sell, release, and assure the 
 messuages, lands, tenements, and heredita- 
 ments hereby granted and released, or ex- 
 pressed, or intended so to be, and every of 
 them, and every part and parcel thereof, with 
 their and every of their rights, members, and 
 appurtenances, unto the said Cornelius Cros- 
 - by and Charles Crompton, their heirs and as- 
 signs, to, for, and upon the uses, trusts, in- 
 tents, and purposes, and in manner and form 
 
 *»
 
 190 Lease and Release. 
 
 aforesaid, according to the true intent and 
 meaning of these presents; And likewise, that 
 the messuages, lands, tenements, and here- 
 ditaments hereby granted and released, or ex- 
 pressed, or intended so to be, and every of 
 them, and every part and parcel thereof, with 
 their and every of their rights, members, and 
 appurtenances, shall and lawfully may from 
 time to time, and at all times hereafter, re- 
 main, continue, and be, to, for, and upon 
 the several uses, trusts, intents, and purposes 
 hereinbefore limited, expressed, and declared 
 of and concerning the same, and shall and 
 may be peaceably and quietly had, held, and 
 enjoyed, and the rents and profits thereof re- 
 ceived and taken accordingly, without the 
 let, suit, trouble, denial, eviction, ejection, 
 disturbance, molestation, hindrance, inter- 
 ruption, claim, or demand whatsoever of, 
 from, or by the said Adam Ash, or his heirs, 
 or any person or persons claiming, or to 
 claim, by, from, through, under, or in trust 
 for him, them, or any of them, or any of his 
 ancestors ; and that free and clear, and freely, 
 clearly, and absolutely acquitted, exonerated, 
 and discharged, or otherwise by him the said 
 Adam Ash, his heirs, executors, or adminis- 
 trators, or some or one of them, well and 
 sufficiently saved, defended, kept harmless 
 and indemnified of, from, and against all 
 former and other gifts, grants, bargains, 
 sales, leases, mortgages, jointures, dowers,
 
 Lease and Release. 191 
 
 right and title of dower, uses, trusts, wills, 
 intails, statutes, recognizances, judgments, 
 extents, executions, rents, arrears of rent, 
 annuities, debts, legacies, sum and sums of 
 money, estates, titles, troubles, charges, and 
 incumbrances whatsoever, made, done, or 
 committed by the said Adam Ash, or any of 
 his ancestors, or any person or persons claim- 
 ing, or to claim, by, from, or under him, or 
 them, or any of them ; And moreover, that 
 he the said Adam Ash, and his heirs, and 
 every other person having, or lawfully or 
 equitably claiming, or who shall or may at 
 any time or times hereafter have, or lawfully 
 or equitably claim any estate, right, title, or 
 interest whatsoever, in, to, or out of the mes- 
 suages, lands, tenements, and hereditaments 
 hereby granted and released or expressed, or 
 intended so to be, or in, to, or out of any of 
 them, or any part or parcel thereof, by, from, 
 under, or in trust for him or them, or any of 
 them, or any of his ancestors, shall and will, 
 from time to time, and at all times hereafter, 
 upon every reasonable request of the said 
 Cornelius Crosby and Charles Crompton, 
 their heirs or assigns, but at the proper costs 
 and charges in the law of the person or per- 
 sons for the time being, beneficially entitled 
 to the premises, make, do, acknowledge, levy, 
 suffer, and execute, or cause and procure to 
 be made, done, acknowledged, levied, suffer- 
 ed, and executed, all such further and other
 
 192 Lease and Release. 
 
 lawful and reasonable acts and things, deeds, 
 devices, conveyances, and assurances in the 
 law, whatsoever, for the further, better, more 
 perfectly and absolutely granting, releasing, 
 and assuring the messuages, lands, tenements, 
 and hereditaments hereby granted and releas- 
 ed, or expressed, or intended so to be, and 
 every of them, and every part and parcel 
 thereof, with their and every of their rights, 
 members, and appurtenances, to, for, and 
 upon the several uses, trusts, intents, and 
 purposes, and under and subject to the several 
 powers, provisoes, declarations, and agree- 
 ments hereinbefore limited, expressed, de- 
 clared, and contained of and concerning the 
 same, or such of them as shall be then sub- 
 sisting, undetermined, or capable of taking 
 effect ; as by them the said Cornelius Crosby 
 and Charles Crompton, their heirs or assigns, 
 or any of them, their or any of their counsel 
 in the law, shall be reasonably devised, or ad- 
 vised, and required ; so that such further as- 
 surance or assurances contain or imply in 
 them, no further or other covenant or war- 
 ranty than against the person or persons who 
 shall be required to make and execute the 
 same, his, her, or their heirs, executors, and 
 administrators' acts and deeds only; and so 
 that the party or parties who shall be requir- 
 ed to make and execute any such further as- 
 surance or assurances, be not compelled nor 
 compellable for the making or doing thereof
 
 Lease and Release. 193 
 
 to go and travel from his, her, or their dwell- 
 ing', or respective dwellings, or usual place 
 or places of abode. In witness, &c. 
 
 The following are Extracts from a Deed pie- 
 pared by the late Mr. Booth, and alluded to 
 in the Opinion stated in Appendix VII. 1st 
 Vol. 
 
 This Indenture, &c. 1172. 
 
 Between the right honourable P. earl of 
 H. and the most honourable Jemima marchio- 
 ness G. his wife, of the first part, the right 
 honourable the lady Annabella G. the eldest 
 daughter of the body of the said J. mar- 
 chioness G. begotten by the said earl of H. 
 of the second part, the right honourable lady 
 M. J. G. the second and youngest daughter 
 of the body of the said J. marchioness G. 
 begotten by the said earl of H. of the third 
 part, J. V. of, &c. of the fourth part, J. E. of 
 &c. of the fifth part, J. J. and D. W. of the 
 sixth part, the right honourable W. E. and 
 E. H. of the seventh part, and the right ho- 
 nourable J. lord B. of the eighth part; the 
 deed recites 
 
 VOL. II. o
 
 194 Lease and Release. 
 
 An Indenture dated the 26th of June 
 1736; whereby the reversion in fee, to take 
 effect after failure of issue male of the duke 
 of K., of and in certain manors, he, in the 
 said counties of were con- 
 
 veyed by H. duke of K., to the use of the said 
 marchioness G. and her assigns for her life ; 
 with remainder to trustees to preserve con- 
 tingent remainders; with remainder to the 
 first and other sons of the said lady G. suc- 
 cessively in tail general; with remainder to 
 her first and other daughters successively in 
 tail general; with divers remainders over. 
 And also recites the articles on the marriage 
 of the said J. marchioness G. only child of 
 J. lord G. and lady A. his wife with the said 
 P. earl of H. dated the 19th May 1740; 
 whereby (amongst other things) the duke of 
 K. covenants that he will, by his will or other- 
 wise, give his personal estate, and the monies 
 to arise by sale of certain real estates, to be 
 laid out in lands to be settled to the use of 
 the said duke for his life, with remainder to 
 trustees to preserve contingent remainders, 
 with remainder to his first and other sons in 
 tail male, with remainder to the said mar- 
 chioness G. for her life, with remainder to 
 trustees to preserve contingent remainders; 
 with remainder to trustees for the term of 
 five hundred years in trust to raise 800/. per 
 annum for the said lord H. for his life and for 
 younger childrens' portions; with like re-
 
 Lease and Release. 195 
 
 mainders over, as in the said indenture of the 
 26th June 1730: it also recites 
 
 The death of the duke of K. on the 22nd 
 day of, &c. without issue male; and 
 
 The will of the said duke of K. whereby 
 lie devises his Herefordshire estates to be sold ; 
 and the money arising by the sale thereof, and 
 the residue of his personal estate, after pay- 
 ment of his debts, &c. to be laid out in the 
 purchase of lands, to be settled to the same 
 uses as are mentioned in the same indenture 
 of the 26th June 1736 : and the deed also 
 recites 
 f 
 
 Several codicils to the said will, and 
 
 An Act of Parliament of the 15 and 16 
 Geo. II. for carrying the said articles into 
 execution ; and also, 
 
 Indentures of lease and release of 11th, 
 and 12th of, &c. whereby several estates in 
 the county of B., purchased with the money 
 arising by sale of the duke's Herefordshire 
 estates, were settled to the uses mentioned in 
 the said duke's will. 
 
 " And whereas there is not any issue male 
 " of the body of the said J. marchioness G., 
 " and therefore they the said P. earl of H. 
 o2
 
 196 
 
 Lease and Release. 
 
 11 J. marchioness G., and the said lady Anna- 
 " bella G., the eldest daughter of the said J. 
 " marchioness G., who has attained her age 
 " of twenty-one years, as hereinbefore is men- 
 " tioned, are desirous of suffering common re- 
 e! coveries, as well of the said several manors, 
 " messuages, lands, and hereditaments, com- 
 '< prised in the said recited indenture of the 
 " 26th of June 17S6, and in the will of the 
 " said D. of K., as of the several heredita- 
 "< ments and premises so purchased with the 
 '• said trust monies as aforesaid, and com- 
 " prised in the said last recited indentures of 
 " lease and release, and of barring the estate 
 " tail so vested in the said lady Annabella G., 
 " and all the remainders over, and therever- 
 " sion and remainder in fee, which was so 
 " limited to the right heirs of the said H. late 
 " D. of K. ; but without prejudicing or dis- 
 "■ turbing any of the precedent uses, estates, 
 " or charges, in and by the said indenture of 
 " the 26th of June 1736, and the said will 
 " and codicils, or the said recited Act of 
 " Parliament, or the said recited indenture of 
 " the 12th day of, &c. now last past, or any 
 " of them, expressly or by reference limited, 
 " created, or declared, prior to, or before, the 
 " said remainder or limitation to the first 
 " daughter of the body of the said J. Mar- 
 " chioness G. by the said earl of H. (party 
 u hereto) begotten, or prior to, or before, the 
 " said remainder or limitation to the said
 
 Lease and Release. 197 
 
 " lady Annabel I a G., and the heirs of her 
 (t body lawfully issuing-, and without pre- 
 judicing, or disturbing, any of the powers 
 " or privileges to the said precedent uses or 
 " estates annexed or belonging; all which pre- 
 " cedent uses, estates, powers, and privileges, 
 " are intended to be corroborated and con- 
 " firmed by the common recoveries so in- 
 T ' tended to be suffered. 
 
 " And whereas it hath been agreed by and 
 " between the said P. earl of H., J. mar- 
 " chioness G., and lady Annabella G. that in 
 " case the said lady A. G. shall happen to 
 *' marry during the joint lives of the said P. 
 " earl of H. party hereto, and J. marchioness 
 " G., and that the said P. earl of H. shall 
 " and do previously to and upon such mar- 
 " riage of the said lady A. G. settle and se- 
 " cure to the good liking of the said lady A. 
 " G., and of such husband as she shall marry, 
 " an annuity or yearly rent-charge of 1500/., 
 " to be paid and payable to the said lady A. 
 " G. and her assigns during the joint natural 
 " lives of the said J. marchioness G. and lady 
 " A. G.,as and for, or towards, a provision for 
 " the immediate support and maintenance of 
 " the said lady A. G., during the lifetime of 
 " the said marchioness G. her mother ; then 
 *' and in such case, and in consideration 
 " thereof, the hereditaments and premises 
 " hereby realeased shall, from and after the 
 o3
 
 198 Lease and Release. 
 
 " decease of the said J. marchioness G., stand 
 " and be charged and chargeable with so 
 " much of the sum of 10,000/. or 20,000/., as 
 " the case shall happen, by the said recited 
 " Act of Parliament charged on, and to be 
 " raised and paid out of, the real estates in 
 " the same Act mentioned, and late of the 
 " said P. earl of H. deceased, for the portion 
 " or portions of the younger child or chil- 
 " dren, of the said P. earl of H. party hereto, 
 " on the body of the said J. marchioness G. 
 " begotten or to be begotten, as he the said 
 " P. earl of H. party hereto^ by any deed or 
 " deeds, writing or writings, with or without 
 " power of revocation, to be by him sealed 
 " and delivered in the presence of, and attest- 
 " ed by, two or more credible witnesses, or by 
 " his last will and testament in writing, or 
 " any codicil or codicils, to be by him signed 
 " in the presence of and attested by three or 
 " more credible witnesses, shall declare, di- 
 " recr, or appoint, as an equivalent or satis- 
 " faction for so much of the said sum of 
 " 10,000/. or 20,000/, (as the case shall hap- 
 " pen), as shall be raised and paid out of 
 " the said real estates late of the said P. earl 
 " of H., deceased, for the portion or portions 
 " of such younger child or children. And it 
 " hath been also further agreed, that the 
 " hereditaments herein by these presents 
 " granted and released shall be charged with 
 " such yearly sum or sums of money, not
 
 Lease and Release, 199 
 
 " exceeding in the whole the sum of 300/. 
 " as hereinafter mentioned. 
 
 " Now this indenture witnesseth, that in 
 " order to bar, dock, and destroy the said es- 
 " tate tail in remainder now vested in the 
 " said lady Annabella G.,and all other estates 
 h tail and remainders subsequent thereto, in 
 " and by the said indenture of the 26th of 
 " June 1736, and the said will and codicils 
 " of the said H. late duke of K., and the said 
 " hereinbefore recited Acts of Parliament,and 
 " the said recited articles of agreement ex- 
 '" ecuted previous to the marriage of the said 
 " earl of H., party hereto, with the said J. 
 " marchioness G. ; and the said indenture of 
 " release of the 12th day of, &c. now last 
 " past, or any of them,or otherwise, expressly, 
 " or by reference, or equitably, limited, cre- 
 " ated, and declared, and all remainders or 
 " reversions thereupon expectant or depend- 
 " ing, of and in the several manors and scites 
 " of manors, &c, hereinafter by these pre- 
 u sents granted, 'bargained, sold, released, 
 " and confirmed, or intended so to be (but 
 " without prejudicing or disturbing the said 
 " uses, estates, and charges, prior or prece- 
 " dent to the said remainder in tail, now vested 
 " in the said lady Annabella G. as aforesaid, 
 " or any of the powers or privileges to the 
 " precedent uses or estates or any of them 
 " annexed or belonging) ; And to the intent 
 o4
 
 200 Lease and Release. 
 
 " that the same manors, &c. with the appur- 
 " tenances (but subject and without prejudice 
 " to the uses, estates, and charges, prior and 
 " precedent to the said remainder in tail, now 
 " vested in the said lady A. G. and the powers 
 " thereto annexed or belonging), may be as- 
 " sured and limited to such uses, upon such 
 " trusts, for such intents and purposes, and 
 " by, with, and under such limitations, 
 " powers, provisoes, and charges as are here- 
 " inafter mentioned and declared of and 
 " concerning the same," and also in con- 
 sideration of 10s., &c. and for divers other 
 good causes and valuable considerations, 
 the said earl of H., party to these presents, 
 J. marchioness G, and lady A. G., hereunto 
 moving ; " They the said P. earl of H. 
 " J. marchioness G., and lady Annabella G. 
 " have, and each of them hath, granted, bar- 
 " gained, sold, aliened, released, and con- 
 " firmed, and by these presents do, and each 
 " of them doth grant, bargain, sell, alien, 
 " release, and confirm unto the said J. N." 
 (in his actual possession, &c.) and to his heirs 
 all, &c. 
 
 To have and to hold the said heredita- 
 ments, and premises, &c. unto and to the use 
 of the said J. N. and his heirs during the 
 joint lives of the said J. marchioness G. and 
 
 J.N.
 
 Lease and Release. 201 
 
 " And it is hereby declared and agreed to 
 " be the true intent and meaning of these pre- 
 " sents, and of all the said parties hereunto, 
 " that the said J. N., and his assigns, shall 
 " stand and be seised of the said several ma- 
 jors and scites of manors, capital and other 
 " messuages, farms, rectories, advowsons, 
 "tythes, lands, tenements, rents, heredita- 
 " ments, and premises hereby released, or 
 11 intended so to be, with their and every of 
 " their rights, members, and appurtenances, 
 " for and during the joint natural lives of the 
 "said J. marchioness G. and J. N. aforesaid, 
 " to and for the end, intent, and purpose that 
 " he the said J. N. by virtue of these presents 
 " may be and become perfect tenant of the 
 "immediate freehold of the said manors, &c. 
 " in order that eight or more good and perfect 
 " common recoveries, one or more for each of 
 " the said counties of B, &c. may be per- 
 " fected, suffered, and executed thereof, in 
 " manner hereinafter mentioned ; for which 
 " purpose it is hereby covenanted, concluded, 
 "declared, and agreed, by and between the 
 " said parties to these presents, that it shall 
 " and may be lawful to and for the said J. E. 
 " at the costs and charges of the said earl of 
 "H., before the end ofT. term next ensuing 
 " the date of these presents, to sue forth out 
 "of his Majesty's High Court of Chancery, 
 " and prosecute against the said J. N.,one or 
 " more writ or writs of entry, sur disseisin
 
 202 JLease and Release. 
 
 " en le post returnable and to be returned 
 "before the justices of His Majesty's Court 
 " of Common Pleas at Westminster, thereby 
 " demanding, by apt and convenient names, 
 "quantities, and qualities of land, number 
 "of messuages, and acres, and other proper 
 " descriptions, the said manors, &c. hereby 
 " granted and released, or intended so to be, 
 41 with their, and every of their, rights, mem- 
 " bers, and appurtenances ; to which said 
 " writ or writs, the said J. N. shall appear 
 " gratis in his proper person, and vouch to 
 " warranty the said lady Annabella G. who 
 "shall appear in her proper person, or by 
 " attorney lawfully authorized in that behalf, 
 " and enter into the said warranty, and she 
 " shall vouch over to warrant the same pre- 
 " mises the common vouchee of the said Court 
 " of Common Pleas, who shall thereupon 
 " appear and imparl, and after imparlance had 
 " shall make default, and depart in contempt 
 " of the said Court; and such further and 
 " other proceedings shall be had on the said 
 " writ or writs, as that eight or more com- 
 " inon recoveries, one or more for each of 
 " the said counties of B. &c. shall be there- 
 " upon had and suffered of the said manors 
 " and premises hereby granted and released, 
 " or intended so to be, with their, and every 
 " of their rights, members, and appur- 
 "tenances, according to the form and effect 
 " of common recoveries for assurance of
 
 Lease and Release. 203 
 
 " lands in such cases had and accustomed; 
 "and it is hereby concluded, declared, and 
 " agreed upon, by and between all and every 
 " the said parties to these presents, that from 
 "and immediately after such time or times, 
 " as the said common recoveries, or any or 
 " them, shall be had, executed, perfected, 
 " and suffered as aforesaid, the said common 
 "recoveries in manner aforesaid, or in any 
 " other manner, or at any other time, or 
 " times, to be had, perfected, executed, and 
 " suffered, of the said manors and heredita- 
 " ments, and each and every of the said 
 " common recoveries, as to the hereditaments 
 " to be comprised therein respectively, and 
 " the full force and execution thereof, and of 
 " these presents, and the grant and release 
 " herein contained, and all and every other 
 " common recovery and recoveries, and other 
 ** assurances in the law whatsoever of the 
 " said manors, &c. hereby granted and re- 
 " leased, or any of them, or any part or parts 
 " thereof, had, suffered, and executed, or to 
 " be had, suffered, and executed, by, or be- 
 tween the said parties hereto, or any of 
 "them, or whereunto they, or any of them, 
 "are, is, or shall be, party or parties, privy 
 " or privies, as to all the said hereditaments 
 "and premises hereinbefore by these presents 
 " granted and released, or intended so to be, 
 "and as to every part and parcel thereof, 
 " with their, and every of their, rights,
 
 204 Lease and Release. 
 
 " members, and appurtenances shall be and 
 " enure, and the recoveror or recoverors in 
 " such common recoveries named or to be 
 " named, and his or their heirs shall stand 
 " and be seised of the said manors, &c. 
 " hereby granted and released, or intended 
 " so to be, with their and every of their 
 "rights, members, and appurtenances: 
 
 " In the first place for corroborating, 
 " strengthening, and confirming, the said 
 " several uses, estates, terms of years, and 
 '* charges, in and by the said hereinbefore 
 " recited indentures, will, codicils, articles 
 " of agreement, and acts of Parliament, or 
 " any of them, expressly or by reference, 
 " limited, created, and declared, precedent 
 " to, or before, the limitation to the first 
 " daughter of the body of the said J. mar- 
 "chioness G. begotten, and the heirs of her 
 " body issuing, or precedent, or prior to, the 
 " said limitation to the said lady Annabella 
 " G. and the heirs of her body lawfully issu 
 " ing, or to be begotten, and for corroborat- 
 "ing, strengthening, and confirming, the 
 " several powers and privileges to the same 
 " precedent uses, estates, terms of years, and 
 " charges, and every, or any of them, be- 
 " longing or annexed : And from and imme- 
 " diately after the determination of the said 
 " several precedent uses, estates, and charges,
 
 Lease and Release. 205 
 
 " and as the same shall severally end and de* 
 " termine, and subject to the said precedent 
 " uses, estates, and charges, and every of 
 " them, and without prejudice to them, or 
 " any of them, to such uses, upon such trusts, 
 V for such intents and purposes, and subject 
 " to such provisoes, charges, conditions, and 
 " agreements, as are hereinafter expressed 
 " and declared of and concerning the same ; 
 " (that is to say,) To the use of such person 
 " and persons, in such order and manner, 
 " and to, for, and upon, such estate and es- 
 " tates, uses, trusts, intents, and purposes, 
 " and with, upon, under, and subject to, 
 " such powers, provisoes, conditions, and re- 
 " strictions, and with such remainders or limi- 
 " tations over, and charged and chargeable 
 i( with such yearly and gross sum and sums 
 " of money, and in such manner, as the said 
 " P. earl of H. party hereto, J. marchioness 
 " G., and lady Annabella G. at any time or 
 " times hereafter, during their joint natural 
 " lives, by any deed or deeds, writing or 
 " writings, with or without power of revoca- 
 " tion, to be by them, and each and every 
 " of them, sealed and delivered in the pre- 
 " sence of, and attested by, two or more 
 " credible witnesses, shall jointly direct, limit, 
 " and appoint : And in default of such joint 
 " direction, limitation, and appointment, and 
 " in the mean time, and until such joint di- 
 " rection, limitation, and appointment shall
 
 206 Lease and Release. 
 
 " be so made and executed, and until the 
 " estate or estates, interest or interests, 
 " charge or charges, thereby to be directed, 
 " limited, and appointed, shall commence 
 " and take effect, and also subject to any 
 " such direction, limitation, or appointment, 
 " as shall be so made, where the same shall 
 " not happen to be a complete and entire ap- 
 " pointment, direction, and limitation, of 
 " and concerning the whole of the said ma- 
 " nors, &c. and of and concerning the whole 
 " estate and interest therein, and as to such 
 " and so many of the said hereditaments and 
 " premises hereinbefore by these presents 
 " granted and released, as shall remain un- 
 " appointed, or concerning which no com- 
 " plete direction, limitation, or appointment, 
 " shall be made, and as and when the uses, 
 " estates, and charges therein, or thereupon, 
 " or in or upon any part or parts thereof, to 
 " be directed, limited, or appointed, shall 
 " end and determine," To the use of the said 
 E. E. and E. L. for 700 years, to commence 
 from the death of the marchioness G., with 
 remainder to lady A. G. for life ; with re- 
 mainder to trustees to preserve, &c; with re- 
 mainder to her first and other sons succes- 
 sively in tail ; with remainder to her first and 
 other daughters successively in tail : with 
 divers remainders over; and the ultimate re- 
 mainder to the right heirs of the said D. of 
 K. deceased.
 
 Lease and Release. 207 
 
 " Provided always and it is hereby agreed 
 " and declared between and by the said par- 
 " ties to these presents, that if the said J. N. 
 " shall not pay to the said P. earl of H. and J. 
 " marchioness G. or the survivor of them, 
 " the sum of £100,000 of lawful money of 
 " Great Britain, on or before the 1st day of 
 " August next ensuing the day of the date of 
 " these presents, then, and in such case, the 
 " said grant, and release, so hereby made, 
 " shall, as to all and every of the said here- 
 " ditaments before by these presents granted 
 " and released, or intended so to be, with 
 " their and everyof their appurtenances, cease, 
 " determine, and be absolutely null and void ; 
 " and it shall be lawful for the said P. earl of 
 " H. and J. marchioness G. in case she shall 
 " survive the said earl of H. to enter on, and 
 " hold and enjoy, all and every the said 
 " premises hereinbefore by these presents 
 " granted and released, with their appurte- 
 " nances, as in their or her former estate, any 
 " thing hereinbefore contained to the con- 
 " trary thereof in any wise notwithstanding 1 *." 
 
 a See Note 1. Div. IV. to page 203. 6. Butl. Co. Litt.
 
 •201) 
 
 PARTITION 
 
 This Indenture, &c. between R. B. of &c. 
 and G. his wife, whose maiden name was G. F. 
 of the first part ; L. L. of &c. widow, whose 
 maiden name was L. F. of the second part; 
 M. F. of &c. of the third part; and J. F. of 
 &c. of the fourth part. 
 
 Whereas by the death of H. F. late of &c. 
 deceased, the late brother of the said G. B., 
 L. L., and M. F., they the said G. B., L. L., 
 and M. F. as his sisters and coheirs, became 
 seised of, or entitled to, the freehold estates 
 in the county of Y. hereinafter mentioned. 
 
 And whereas the said R. B. and G. his 
 wife, L. L., and M. F., being desirous of 
 making a partition of the said estates, 
 to which they are respectively entitled as 
 aforesaid, they did by articles of agreement, 
 bearing date on or about the 25th day of &c. 
 now last past, nominate, authorize, and ap-
 
 Partition. 209 
 
 point J. S. of, &c. and J. B. of, &c. to survey, 
 measure, and value the said estates, and 
 every part thereof, and to set out, divide, and 
 allot the same, in manner hereinafter men- 
 tioned ; and the said R. B. and G. his wife, 
 L. L., and M. F. did by the same articles 
 agree to pay all costs, charges, and expenses, 
 which should be occasioned by, or incurred 
 in, making such partition, and the costs and 
 charges of all deeds, fines, and assurances, 
 which should be requisite, or necessary, for 
 effecting the same partition and the confirma- 
 tion thereof, in equal shares and propor- 
 tions ; 
 
 And whereas in pursuance, and by virtue of 
 such authority as aforesaid, they the said J.S. 
 and J. B., after having attentively reviewed 
 and surveyed the said estates late of the said 
 H. F. deceased, with the appurtenances, and 
 the timber and wood growing thereon re- 
 spectively, and after duly examining and 
 considering the said estates and the condition 
 thereof, and the buildings belonging thereto, 
 and the state of the repairs thereof, and the 
 situation, quantity, nature, quality, and con- 
 dition of the same estates, and the several 
 rent-charges, and outgoings, chargeable upon, 
 and issuing out of, the same, did fairly and 
 impartially make a partition of all the said 
 estates into three equal parts, shares, and al- 
 lotments; and the said J. S. and J. B., have 
 
 VOL. II. p
 
 210 Partition. 
 
 caused a schedule or particular to be made 
 of each part, share, or allotment, containing 
 a description, rental, and valuation, of the 
 lands and hereditaments comprised in such 
 schedule or particular : and which schedules, 
 being marked, 1, 2, and 3, were inclosed in 
 three several cases, or wrappers, made up in 
 the same form, and sealed by the said J. S. 
 and J. B. ; 
 
 And whereas at a meeting between the 
 said R. B. and G. his wife, and L. L., and 
 M. F., held on the 9th day of October in- 
 stant, before the date of these presents, at 
 the dwelling-house of the said R. B., the said 
 three schedules, or particulars, so numbered, 
 inclosed, and sealed as aforesaid, were put 
 into a basket by the said J. S. and J. B., and 
 one of the said schedules was then and there 
 drawn out of the said basket by the said R. B. 
 and G. his wife, as and for their lot or share 
 of and in the said hereditaments, which sche- 
 dule on being opened by the said J. S. and 
 J. B. proved to be No. 1 ; and one other of 
 the said schedules was drawn out of the said 
 basket by the said L. L., as and for her lot 
 or share of and in the said hereditaments, 
 which on being opened, as aforesaid, proved 
 to be No. 3 ; and the remaining schedule was 
 drawn out of the said basket by the said M. F. 
 as and for her lot or share of and in the said
 
 Partition. 211 
 
 hereditaments, and which on being opened, 
 as aforesaid, proved to be No. 2 ; 
 
 And whereas the said R. B. and G. his 
 wife, L. L., and M. F., being severally con- 
 vinced of the impartiality of the said J. S. and 
 J. B. in making the said partition and allot- 
 ment of the said estates in manner aforesaid, 
 and being satisfied with the several lots, or 
 shares, by them respectively drawn at the 
 said meeting, have mutually agreed, and are 
 willing and desirous, to corroborate and con- 
 firm the said allotments and partition in 
 such manner as hereinafter is expressed. 
 
 Now therefore this indenture witnesseth, 
 that in pursuance of the said agreement, and 
 in consideration of the premises, and for cor- 
 roborating and confirming the partition and 
 division so made of the said estates by the 
 said J. S. and J. B. as aforesaid ; and to the 
 end and intent, that the said several lots and 
 shares of and in the same, respectively drawn 
 by the said R. B. and G. his wife, L. L., and 
 M. F., may be held and enjoyed in severalty; 
 and also in consideration of the sum of 10s. 
 to the said R. B. and G. his wife, L. L., and 
 M. F. paid by the said J. F. at or before the 
 sealing and delivery of these presents (the 
 receipt whereof is hereby acknowledged), the 
 said R. B. aiijd G. his wife, L. L., and M. F. 
 have, and every of them hath, granted, bar- 
 p 2
 
 212 Partition. 
 
 gained j sold, aliened, released, and confirmed, 
 and by these presents do, and every of them 
 doth, grant, bargain, sell, alien, release, and 
 confirm unto the said J. F., (in his actual pos- 
 session now being by virtue of a bargain and 
 sale to him thereof made by the said R. B. 
 aud G. his wife, L. L., and M. F. in consi- 
 deration of 5s. by indenture bearing date the 
 day next before the day of the date of these 
 presents for one year, commencing from the 
 day next before the day of the date of the 
 same indenture of bargain and sale, and by 
 force of the statute made for transferring uses 
 into possession), and to his heirs, 
 
 All that capital messuage, or tenement, 
 &c. &c. ; and also all and singular other mes- 
 suages,cottages,lands, tenements, and heredi- 
 taments whatsoever in the parish of 
 in the said county of G. or elsewhere in the 
 kingdom of Great Britain, of or to which the 
 said H. F. was at the time of his decease 
 seised or entitled at law or in equity for any 
 estate of inheritance in possession, reversion, 
 remainder, or expectancy; and all and sin- 
 gular houses, outhouses, &c. &c. ; and the 
 reversion and remainder, reversions and re- 
 mainders, yearly and other rents, issues, and 
 profits of the premises ; and all the estate, 
 right, title, interest, property, claim, and de- 
 mand whatsoever, of them the said R. B. and 
 G. his wife, L. L., and M. F., and every of
 
 Partition. 213 
 
 them, in, to, and out of the same messuages 
 and hereditaments, and every of them; 
 
 To have and to hold the said messuages, 
 lands, and other hereditaments expressed to 
 be hereby granted and released, with the ap- 
 purtenances, unto the said J. F., and his heirs 
 for ever, to the several uses hereinafter limited 
 and expressed concerning the same; (that is 
 to say,) 
 
 As to, for, and concerning all such and so 
 many, and such part and parts of the said mes- 
 suages and other hereditaments expressed to 
 be hereby granted and released, as are com- 
 prised in the schedule hereinbefore mentioned, 
 to be marked No. 1, and to be drawn by, and 
 as for the lot or share of, the said R. B. and 
 G. his wife, a true copy of which schedule 
 No. 1, is hereunto annexed, or hereunder writ- 
 ten, and every part and parcel thereof, with 
 their and every of their rights, members, and 
 appurtenances, to the use of the said R. B., 
 and his assigns, during the term of his natural 
 life ; and from and immediately after his de- 
 cease, to the use of the said G. B., her heirs 
 and assigns for ever ; and to be by him, her, 
 and them held in severalty, in lieu of the un- 
 divided part or share of the said R. B. and 
 G. his wife, in right of the said G., of and in 
 the entirety of the said messuages and other 
 
 p 3
 
 •214 Partition. 
 
 hereditaments hereinbefore expressed to be 
 hereby granted and released ; 
 
 And as, to, for, and concerning all such and 
 so many, and such part and parts of the said 
 messuages and other hereditaments herein- 
 before expressed to be hereby granted and 
 released, as are comprised in the said sche- 
 dule hereinbefore mentioned to be marked 
 No. 3, and to be drawn by the said L. L., 
 and as and for the lot or share of her the said 
 L. L., a true copy of which said schedule 
 No. 3, is also hereunto annexed, or hereunder 
 written, and every part and parcel thereof, 
 with their, and every of their, rights, mem- 
 bers, and appurtenances, to the use of the 
 said L. L., her heirs and assigns for ever, to 
 be by her and them held in severalty, in lieu 
 of the undivided part or share of the said L. L. 
 of and in the entirety of the said messuages 
 and other hereditaments hereinbefore express- 
 ed to be hereby granted and released; 
 
 And as, to, for, and concerning all such 
 and so many, and such part and parts of, the 
 said messuages and other hereditaments here- 
 inbefore expressed to be hereby granted and 
 released as are comprised in the said schedule 
 hereinbefore mentioned to be marked No. 2, 
 and to be drawn by, and as and for the lot 
 or share of, the said M. F., a true copy of 
 which said last mentioned schedule No. 2,
 
 Partition. 215 
 
 is also hereunto annexed, or hereunder writ- 
 ten, and every part and parcel thereof, with 
 their and every of their rights, members, and 
 appurtenances, to the use of the said M. F. 
 her heirs, and assigns for ever, to be by her 
 and them held in severalty, in lieu of her un- 
 divided part or share of and in the entirety o^ 
 the said messuages and other hereditaments 
 hereinbefore expressed to be hereby granted 
 and released. 
 
 And for the better, and more effectually, 
 conveying and assuring of the said messuages 
 and other hereditaments hereinbefore express- 
 ed to be hereby granted and released, and 
 every part thereof, to the uses hereinbefore 
 limited and expressed concerning the same, 
 it is hereby mutually covenanted and agreed 
 by and between the said parties to these pre- 
 sents, and the said R. B. doth hereby for 
 himself, his heirs, executors, and administra- 
 tors, and so far as concerns the acts, deeds? 
 and defaults of himself and the said G. B. his 
 wife; and each of them the said L. L. and 
 M. F.doth hereby for herself, her heirs, execu- 
 tors, and administrators, and so far as con- 
 cerns her own acts, deeds, and defaults, cove- 
 nant, promise, and grant to, and with, the 
 said J. F. his heirs, and cestuisque use ; 
 that they the said R. B. and G. his wife, 
 L. L., and M. F., shall and will, at their own 
 costs and charges, as of Trinity term last 
 p 4
 
 •216 Partition. 
 
 past, or before the end of Michaelmas Term 
 now next ensuing*, acknowledge and levy in 
 due form of law in his Majesty's Court of 
 Common Pleas at Westminster, before his Ma- 
 jesty's justices of the same Court, unto the said 
 J. F. and his heirs, one or more fine or fines 
 sur conuzance de droit come ceo, &c. with 
 proclamation to be thereupon had and made 
 according to the form of the statute in that 
 behalf made and provided, and the usual 
 course of fines with proclamations for assur- 
 ance of lands in such cases used and accus- 
 tomed, of the said messuages and other here- 
 ditaments hereinbefore expressed to be here- 
 by granted and released with their and every 
 of their rights, members, and appurtenances, 
 by such apt and convenient names, quanti- 
 ties, and qualities of land, number of mes- 
 suages and acres and other descriptions, as 
 shall be sufficient to comprise and ascertain 
 the same ; and it is hereby agreed and de- 
 clared between and by the said parties to 
 these presents, that the said fine or fines so as 
 aforesaid or in any other manner or at any 
 other time or times to be acknowledged and 
 levied, and also all other fines, common re- 
 coveries, conveyances, and assurances in the 
 law whatsoever already had, made, done, ac- 
 knowledged, levied, suffered, and executed, of 
 the said messuages and other hereditaments, 
 hereinbefore expressed to be hereby granted 
 and released, or any of them, or any part
 
 Partition. 2 1 7 
 
 thereof, either alone or jointly with any other 
 hereditaments by, or between the said parties 
 to these presents, or any of them, or where- 
 unto they, or any of them, are or is, or 
 shall be parties or privies, or a party or privy, 
 shall be and enure, and shall be adjudged, 
 construed, expounded, deemed, and taken to 
 be and enure, and that the conuzee or conu- 
 zees named, or to be named, in such fine or 
 fines, and his or their heirs, shall stand and 
 be seised of the said messuages and other 
 hereditaments hereinbefore expressed to be 
 hereby granted and released, with the rights, 
 members, and appurtenances thereto respec- 
 tively belonging, to the several uses hereinbe- 
 fore limited and expressed concerning the 
 same. 
 
 And the said R. B. doth hereby for him- 
 self, his heirs, executors, and administrators, 
 and so far only as concerns the acts, deeds, 
 and defaults of himself and the said G.hiswife, 
 and each of them, and the quiet enjoyment 
 and further assurance of one undivided third 
 part of the said messuages and other heredita- 
 ments, and each of them, the said L. L. and 
 M. F. doth hereby for herself, her heirs, exe- 
 cutors, and administrators, and so far only 
 as concerns her own acts, deeds, and defaults, 
 and the quiet enjoyment and farther assur- 
 ance of another undivided third part of the 
 same messuages and other hereditaments, co-
 
 218 Partition. 
 
 venant and agree with the said J. F. his heirs 
 and cestuisque use, and separately with every 
 of such cestuisque use, in manner folio wing ; 
 (that is to say,) that the said messuages and 
 other hereditaments hereinbefore expressed 
 to be hereby granted and released, with the 
 appurtenances, shall from time to time, and 
 at all times hereafter, remain, continue, and be 
 to the uses hereinbefore limited and expressed, 
 concerning the same, and shall and may be 
 peaceably and quietly had, held, and enjoyed, 
 and the rents and profits thereof received and 
 taken accordingly,without the lawful let, suit, 
 trouble, denial, eviction, or interruption, of, 
 from, or by the said R. B. and G. his wife, 
 L. L., and M. F., or any of them, or from, 
 or by any person or persons claiming or to 
 claim, by 9 from, through, or under them, 
 or any of them ; and that free and clear, and 
 freely and clearly acquitted, exonerated, and 
 discharged, or otherwise by the said R. B. 
 and G. his wife, L. L., and M. F., or some of 
 them, their, or some of their, heirs, execu- 
 tors, or administrators, well and sufficiently 
 saved, defended, kept harmless, and indem- 
 nified, of, from, ami against all and singular 
 former and other gifts, grants, bargains, 
 sales, leases, mortgages, estates, titles, 
 troubles, charges, and incumbrances whatso- 
 ever had, made, done, committed, or suffered, 
 or to be had, made, done, committed, or suf- 
 fered by the said R. B. and G. his wife, L. L.,
 
 Partition. 219 
 
 and M. F., or any of them ; and moreover 
 that the said R. B. and G. his wife, L. L., 
 and M. F. respectively, and their respective 
 heirs, and every other person having, or law- 
 fully, or equitably claiming, or who shall or 
 may have, or lawfully, or equitably claim, any 
 estate, right, title, or interest in, to, or out of, 
 the said messuages and other hereditaments 
 hereinbefore expressed to be hereby granted 
 and released, or any of them, or any part 
 thereof, by, from, through, or under them, or 
 any of them, shall and will from time to time, 
 and at all times hereafter, upon every rea- 
 sonable request, and at the proper costs and 
 charges of the said J.F.his heirs,or cestuisque 
 use, or any of them, make, do, and execute, or 
 case or procure to be made, done, and exe- 
 cuted, all such further and other lawful and 
 reasonable acts, deeds, devices, conveyances, 
 and assurances in the law whatsoever, for the 
 further, better, and more perfectly and ab- 
 solutely granting, conveying, and assuring the 
 same messuages and other hereditaments, with 
 the appurtenances, to the uses hereinbefore li- 
 mited concerning the same ; as by the said 
 J. F. his heirs or cestuisque use, or any of 
 them, or their, or any of their, counsel in 
 the law shall be reasonably advised, or de- 
 vised, and required ; so that the person or 
 persons, who shall be required to make and 
 execute such further assurance or assurances 
 be not compelled nor compellable, for the 
 making or doing thereof, to go or travel from
 
 220 Partition. 
 
 his, her, or their dwelling or respective 
 dwellings, or place or respective places of 
 residence or abode. 
 
 And whereas upon the treaty for the 
 aforesaid partition it was agreed, that the 
 several title deeds, evidences, and writings 
 relating to the said messuages and other 
 hereditaments hereinbefore expressed to be 
 hereby granted and released should be de- 
 posited with the said L. L., upon the said 
 L. L. entering into a covenant to produce 
 the same, and permit copies to be made 
 thereof, when thereunto required, in manner 
 hereinafter mentioned ; and in pursuance of 
 such agreement, the title deeds, evidences, 
 and writings, mentioned in the schedule 
 hereunder written, have been delivered to 
 the said L. L., which she doth hereby ac- 
 knowledge. 
 
 Now this Indenture further witnesseth, 
 that in pursuance of the said last mentioned 
 agreement, and in consideration of the pre- 
 mises, the said L. L. for herself, her heirs, exe- 
 cutors, administrators, and assigns, doth here- 
 by covenant, promise, and agree to and with 
 the said J. F. his heirs, and cestuisque use, 
 and, as a separate covenant, to and with each 
 of them the said R. B. and G. his wife, and 
 F.M. his and her heirs and assigns, that she the 
 said L. L. her heirs, executors, administra-
 
 Partition. 221 
 
 tors, or assigns, shall and will from time to 
 time, and at all or any time or times here- 
 after (unless prevented by fire or other inevi- 
 table accident), upon everyreasonable request, 
 and at the proper costs and charges, of the said 
 J. F. his heirs, or cestuisque use, or of any of 
 such cestuisque use, produce and show forth, 
 or cause or procure to be produced and 
 shown forth, to him, her, or them, or any 
 of them, or to such person or persons as he, 
 she, or they, or any of them, shall direct, 
 desire, or require, or at any trial, hearing, 
 or examination, in any court of law or 
 equity, or other judicature, or upon the exe- 
 cution of any commission in England, as 
 occasion shall be or require, the several deeds, 
 evidences, and writings mentioned in the 
 schedule thereof hereunder written, and 
 every or any of them ; and make and deliver 
 copies of, or extracts from, all, or any of, 
 the same deeds, evidences, or writings, for 
 the manifestation, defence, and support of 
 the estate, right, title, interest, property, or 
 possession of the said J. F. his heirs and 
 cestuisque use, or any of them, of, in, or to 
 all or any of the said messuages, and other 
 hereditaments hereinbefore expressed to be 
 hereby granted and released, with the appur- 
 tenances. In witness, &c. 
 
 [The Schedule to which the above written 
 Indenture refers.']
 
 222 
 
 APPOINTMENT 
 
 TO A PURCHASER IN FEE. 
 
 Parties. 
 
 Recital of a 
 lease and re- 
 lease. 
 
 This Indenture of three parts, made the 
 day of in the year 
 
 of the reign of our sovereign Lord George 
 the Third, by the grace of God, of Great 
 Britain, France, and Ireland, king, defender 
 of the faith, and in the year of our Lord 
 Christ one thousand seven hundred and nine- 
 ty-six : Between Michael Munn of 
 of the first part, Nathan Nore of 
 of the second part, and Peter Penny of 
 
 of the third part : HMli)evea$ by inden- 
 tures of lease and release, bearing date respec- 
 tively on or about the and 
 days of January now last past, the release 
 being made, or expressed to be made, between 
 Charles Church of of the first part, 
 the said Michael Munn of the second part, and 
 the said Nathan Nore of the third part ; the 
 messuages or tenements, piece or parcel of 
 ground, the hereditaments hereinafter de-
 
 Appointment. 223 
 
 scribed, and granted and released, or intended 
 so to be, were conveyed and assured, and now 
 stand limited, To the use of such person or To such uses as 
 
 the vendor shall 
 
 persons, for such estate or estates, interest appoint. 
 or interests, and to and for such intents and 
 purposes, and in such manner and form, as he 
 the said Michael Munn by any deed or deeds, 
 instrument or instruments in writing, to be 
 sealed and delivered by him in the presence 
 of, and attested by, two or more credible 
 witnesses, or by his last will and testament 
 in writing, or any codicil thereto, to be sign- 
 ed and published by him in the presence 
 of, and attested by, three or more credible 
 witnesses, shall direct, limit, or appoint ; and 
 in default of, and until such direction, li- 
 mitation, or appointment, To the use of the 
 said Michael Munn and Nathan Nore, and 
 the heir and assigns of the said Nathan Nore 
 for ever; In Trust, nevertheless, as to the 
 estate and interest thereby limited in use to 
 the said Nathan Nore, his heirs and assigns, 
 for, and for the only benefit of, the said Mi- 
 chael Munn, his heirs and assigns for ever ; 
 and to be conveyed and disposed of from 
 time to time, as he the said Michael Munn, 
 his heirs or assigns, should direct or appoint. 
 ^Cttti Uifjcrr 40 the said Peter Penny hath con- 
 tracted and agreed with the said Michael The contract. 
 Munn for the absolute purchase of the mes- 
 suages or tenements, piece orparcel of ground 
 and hereditaments hereinafter described, and
 
 224 Appointment. 
 
 intended to be hereby appointed and released, 
 and the inheritance thereof in fee-simple, 
 free from all incumbrances, at or for the price 
 or sum of three hundred pounds : IKTotaJ tt)t0 
 lilttrimture QMiUuwtt), that in pursuance 
 of the said recited contract, and in considera- 
 tion of the sum of three hundred pounds of 
 lawful money of Great Britain to the said 
 Michael Munn in hand paid by the said Peter 
 Penny, at or before the sealing and delivery 
 of these presents, the receipt whereof he the 
 said Michael Munn doth hereby acknow- 
 ledge, and of and from the same and every 
 part thereof doth acquit, release, and dis- 
 charge the said Peter Penny, his heirs, execu- 
 tors, administrators, and assigns, and every 
 of them, for ever by these presents ; he the 
 said Michael Munn, in pursuance of thepower 
 or authority given or reserved to him in and 
 by the said recited indenture of release, and 
 by force and virtue thereof, and of every other 
 power and authority to him given or re- 
 served, in him vested, or in any wise enabling 
 The Appoint- him in this behalf, Hath directed, limited and 
 appointed, and by this deed or instrument in 
 writing, sealed and delivered by him in the 
 presence of, and attested by, two credible 
 witnesses, Doth direct, limit, and appoint, that 
 the messuages or tenements, piece or parcel 
 of ground and hereditaments, hereinafter de- 
 scribed, and intended to be hereby granted 
 and released, with the appurtenances, shall 
 
 ment
 
 Appointment, 225 
 
 henceforth remain, continue, and be, to the 
 use of the said Peter Penny, his heirs and 
 
 assigns for ever, glntr tl)te Sntrenture 
 
 further ZWLitnttiMf), that in further pur- 
 suance of the said recited contract, and for 
 the consideration aforesaid; and also in con- 
 sideration of the sum of five shillings of law- 
 ful money of Great Britain, to the said Mi- 
 chael Munn and Nathaniel Nore in hand paid 
 by the said Peter Penny, at or before the seal- 
 ing and delivery of these presents, the receipt 
 whereof is hereby acknowledged, He the said 
 Nathan Nore, at the request, and by the di- 
 rection of the said Michael Munn (testified 
 by his being a party to, and sealing and deli- 
 vering these presents), Hath bargained, sold, 
 aliened, and released, and by these presents 
 Doth bargain, sell, alien, and release, and the 
 said Peter Penny Hath granted, bargained, 
 sold, aliened, released, and confirmed, and by 
 these presents Doth grant, bargain, sell, alien, 
 release,and confirm unto the said Peter Penny 
 (in his actual possession now being by virtue 
 of a bargain and sale to him thereof made by 
 the said Michael Munn and Nathan Nore, in 
 consideration of five shillings, by indenture 
 bearing date the day next before the day of 
 the date of these presents, for the term of 
 one whole year, commencing from the day 
 next before the day of the date of the same 
 indenture of bargain and sale, and by force 
 of the statute made for transferring uses into 
 
 VOL. II. Q
 
 22(> Appointment. 
 
 possession), and to his heirs and assigns, all 
 those messuages, &c. ; all that piece or parcel 
 of ground, &c. ; together with all houses, 
 outhouses, buildings, barns, stables, yards, 
 gardens, orchards, trees, woods, underwoods, 
 hedges, ditches, mounds, fences,ways, waters, 
 watercourses, lights, easements, privileges, 
 commodities, advantages, emoluments, here- 
 ditaments,rights,members,and appurtenances 
 whatsoever, to the said messuages or tene- 
 ments, piece or parcel of ground, and heredi- 
 taments belonging, or in any wise appertain- 
 ing, or at any time heretofore used or enjoyed 
 therewith, or accepted, reputed, deemed, 
 taken, or known as part, parcel, or member 
 thereof, or of any part thereof; and the re- 
 version and reversions, remainder and re- 
 mainders, yearly and other rents, issues, and 
 profits of all and singular the premises ; and 
 also all the estate, right, title, interest, use, 
 trust,property, possession, claim, and demand 
 whatsoever, both at law and in equity, of 
 them the said Michael Munn and Nathan 
 Nore, and of each of them, in, to, and out of 
 the said messuages or tenements, piece or 
 parcel of ground, and hereditaments, hereby 
 granted and released, or intended so to be, 
 Title-deeds, and every or any part thereof; together with 
 all deeds, evidences, and writings relating to, 
 or concerning the premises hereby granted 
 and released, or intended so to be, or any of 
 them, or any part thereof, now in the cus-
 
 Appointment. 227 
 
 tody or power of them the said Michael Munn 
 and Nathan Nore, or of either of them, or 
 which they or either of them can obtain or 
 procure without suit at law or in equity : To Habendum. 
 Have and To Hold the said messuages or te- 
 nements, piece or parcel of ground, and he- 
 reditaments hereby granted and released, or 
 expressed or intended so to be, and every 
 part thereof, with the appurtenances, unto 
 the said Peter Penny, his heirs and assigns 
 for ever, to the only proper use and behoof of 
 the said Peter Penny, his heirs and assigns 
 for ever; And the said Nathan Nore, for The trustee co - 
 
 . . venants against 
 
 himself, his heirs, executors, and administra- his own acts. 
 tors, doth hereby covenant and declare with 
 and to the said Peter Penny, his heirs and 
 assigns, that he the said Nathan Nore hath 
 not at any time heretofore made, done, exe- 
 cuted, committed, or knowingly suffered, or 
 been privy to any act, deed, matter, or thing 
 whatsoever, whereby, or by reason or means 
 whereof, the messuages or tenements, piece or 
 parcel of ground,and hereditaments herebyap- 
 pointed and released, or expressed or intended 
 so to be, or any part thereof, are, is, can, shall, 
 or may be conveyed, assured, impeached, 
 charged, or in any wise incumbered : And the covenants fur 
 
 & . the title. 
 
 said Michael Munn, for himself, his heirs, exe- 
 cutors, and administrators, doth hereby cove- 
 nant, promise, and agree to and with the said 
 Peter Penny, his heirs and assigns, in manner 
 following ; (that is to say,) That (for and not- 
 q2
 
 228 Appointment. 
 
 withstanding any act, deed, matter, or thing 
 whatsoever made, done, executed, committed, 
 occasioned,. or suffered by him the said Mi- 
 chael Munn, or the said Nathan Nore, to the 
 contrary) they the said Michael Munn and 
 Nathan Nore are, or one of them is, at the 
 time of the sealing and delivery of these pre- 
 sents, lawfully, rightfully, and absolutely 
 seised of, or well and sufficiently entitled to 
 the messuages or tenements, piece or parcel 
 of ground, and hereditaments hereby appoint- 
 ed and released, or expressed or intended so 
 to be, with the appurtenances, for an estate of 
 inheritance in fee-simple ; without any man- 
 ner of condition, contingent proviso, power 
 of revocation, or limitation of any new, or 
 other use or uses, or any other matter, re- 
 straint, cause, or thing whatsoever to alter, 
 change, charge, revoke, make void, lessen, or 
 determine the same estate; and that (for and 
 notwithstanding any such act, deed, matter, 
 or thing as aforesaid) they the said Michael 
 Munn and Nathan Nore, or one of them, 
 now, at the time of the sealing and delivery 
 of these presents, have or hath, in themselves 
 or himself, good right, full power, and lawful 
 and absolute authority, to appoint and release 
 the messuages or tenements, piece or parcel 
 of ground, and hereditaments hereby appoint- 
 ed and released, or expressed or intended so 
 to be, and every part thereof, with the appur- 
 tenances, unto, and to the use of, the said
 
 Appointment. 229 
 
 Peter Penny, his heirs and assigns, in man- 
 ner aforesaid, and according to the true in- 
 tent and meaning of these presents ; and 
 also, that it shall and may be lawful for the 
 said Peter Penny, his heirs and assigns, from 
 time to time, and at all times hereafter, 
 peaceably and quietly to enter into and upon, 
 and to have, hold, use, occupy, possess, and 
 enjoy the said messuages or tenements, piece 
 or parcel of ground, and hereditaments here- 
 by appointed and released, or expressed or 
 intended so to be, and to receive and take the 
 rents, issues, and profits thereof, and of every 
 part thereof, to and for his and their own use 
 and benefit, without any let, suit, trouble, 
 denial, eviction, ejection, interruption, or dis- 
 turbance of, from, or by the said Michael 
 Munn, or his heirs, or any other person or 
 persons lawfully or equitably claiming, or to 
 claim, by, from, through, under, or in trust 
 for him, them, or any of them; and that free 
 and clear, and freely and clearly acquitted, 
 exonerated, and discharged, or otherwise by 
 the said Michael Munn, his heirs, executors, 
 and ad ministrators,welland sufficiently saved, 
 defended, kept harmless, and indemnified, of, 
 from, and against all and all manner of 
 former and other gifts, grants, bargains, sales, 
 leases, mortgages, jointures, dowers, and all 
 right and title of dower, uses, trusts, wills, 
 intails, statutes, recognizances, judgments, 
 extents,executions, debts, annuities, legacies, 
 Q 3
 
 '230 Appointment. 
 
 sum and sums of money, rent, and arrears of 
 rent, and of, from, and against all and sin- 
 gular other estates, titles, troubles, charges, 
 and incumbrances whatsoever had, made, 
 done, executed, committed, occasioned, or 
 suffered by the said Michael JVIunn, or by any 
 other person or persons lawfully or equitably 
 claiming or to claim, by, from, through, 
 under, or in trust for him : And moreover, 
 thathe the said Michael Munn, and his heirs, 
 and every other person having, or lawfully 
 or equitably claiming, or who shall or may 
 have, or lawfully or equitably claim, any 
 estate, right, title, or interest, in, to, or out of 
 the said messuages or tenements, piece or 
 parcel of ground, and hereditaments, hereby 
 appointed and released, or expressed or in- 
 tended so to be, or any part thereof, by, 
 from, through, under, or in trust for him or 
 them, shall and will from time to time, and 
 at all or any time or times hereafter, upon 
 every reasonable request, and at the proper 
 costs and charges in the law of the said Peter 
 Penny, his heirs or assigns, make, do, ac- 
 knowledge, levy, suffer, and execute, or 
 cause and procure to be made, done, acknow- 
 ledged, levied, suffered, and executed, all 
 such further and other lawful and reasonable 
 acts, deeds, and things, devices, conveyances^ 
 and assurances in the law whatsoever, for the 
 further, better, more perfectly and absolutely 
 granting, releasing, conveying, and assuring
 
 Appointment. 231 
 
 the said messuages or tenements, piece or 
 parcel of ground, and hereditaments hereby 
 appointed and released, or expressed or in- 
 tended so to be, and every part thereof, with 
 the appurtenances, unto and to the use of 
 the said Peter Penny, his heirs and assigns 
 for ever; or otherwise as he or they shall di- 
 rect or appoint ; as by the said Peter Penny, 
 his heirs or assigns, or any of them, or his or 
 their or any of their counsel in the law, shall 
 be reasonablydevised or advised, and required; 
 so that such further assurance or assurances 
 contain or imply no further or other warranty 
 or covenant than against the person or per- 
 sons, who shall be required to make and ex- 
 ecute the same, and his, her, or their respec- 
 tive heirs, executors, and administrators' acts 
 and deeds only; and so that the person or 
 persons, who shall be required to make and 
 execute any such further assurance or assur- 
 ances, be not compelled, nor compellable, for 
 the making or doing thereof, to go or travel 
 from his, her, or their dwelling or respective 
 dwellings, or usual place or places of resi- 
 dence or abode. In witness, &c. 
 
 q 4
 
 282 
 
 APPOINTMENT. 
 
 Settlement before Marriage under a Power of 
 Appointment. 
 
 Parties This Indenture, &c. between Francis Frede- 
 rick of, &c. of the first part, William Frede- 
 rick of, &c. (the eldest son of the said Francis 
 Frederick), of the second part, Grace Griffith 
 of, &c. spinster, of the third part, Henry 
 Howard of, &c, and Henry Hunt of, &c. of 
 the fourth part, John Jones of, &c. and James 
 Impey of, &c. of the fifth part, and Launce- 
 lot Lyon of, &c. and Luke Lucas of, &c. of 
 the sixth part. 
 
 indentures of 212Hf)erea0, by indentures of lease and re- 
 
 lease and re- , . 
 
 lease recited, lease, bearing date respectively the 
 
 days of the release being of 
 
 four parts, and made or expressed to be 
 made between the said Francis Frederick of 
 the first part, the said William Frederick of 
 the second paat, James Allen of, &c. of the 
 third part, and William Andrews of, &c. of
 
 Appointment. 233 
 
 the fourth part, and by virtue of a common 
 recovery, duly suffered in term in the 
 
 year of the reign of his present Majesty, in 
 pursuance of an agreement in the said inden- 
 ture of release contained ; all that the manor 
 of in the county of 
 
 with the rights, members, and appurtenances, 
 and all that capital messuage, or mansion- 
 house, &c. &c, were, and now stand, settled, 
 limited, and assured, To the use of such per- 
 son or persons, for such estate or estates, in- 
 terests, ends, intents, and purposes, and with, 
 under, and subject to such powers, provisoes, 
 limitations, declarations, and agreements, and 
 in such sort, manner, and form, as the said 
 Francis Frederick and William Frederick 
 from time to time, or at any time or times, 
 by any deed or deeds, instrument or instru- 
 ments in writing, with or without power or 
 revocation and new appointment, to be by 
 them sealed and delivered in the presence of, 
 and attested by, two or more credible wit- 
 nesses, shall jointly direct, limit, or appoint; 
 and in default of such joint direction, limita- 
 tion, or appointment, to such uses as in the 
 same indenture of release are mentioned of 
 and concerning the same premises. 
 
 And whereas a marriage hath been agreed The intended 
 
 marriage; 
 
 upon, and is intended to be shortly had and 
 solemnized between the said William Frede- 
 rick and Grace Griffith ; and upon the treaty
 
 234 Appointment. 
 
 and the agree- for, and in consideration of, the said intended 
 
 meut for a set- . " . 
 
 tiemeEt. marriage, the said Francis Frederick and 
 
 William Frederick did propose and agree, 
 that the said manor, messuages, lands, ad- 
 vowson, tenements, and hereditaments here- 
 inbefore mentioned, with the appurtenances, 
 should be conveyed, limited, and assured to, 
 for, and upon the uses, trusts, intents, and 
 purposes, and under and subject to the 
 powers, provisoes, declarations, and agree- 
 ments hereinafter limited, declared, and con- 
 tained of and concerning the same. 
 
 The appoint- i^ato t&i* Sttirenturs SHttmagetf), That 
 in pursuance of the said recited proposal and 
 agreement, and in consideration of the said 
 intended marriage, they the said Francis 
 Frederick and William Frederick, in pursu- 
 ance of the power or authority to them given, 
 limited, or reserved in and by the said inden- 
 ture of release as aforesaid, and by force and 
 virtue thereof, and of every other power and 
 authority to them given or reserved, in them 
 vested, or them in any wise enabling in this 
 behalf, Do by this deed or instrument in 
 writing, by them sealed and delivered in the 
 presence of, and attested by, two credible 
 witnesses, direct, limit, and appoint, that the 
 said manor, messuages, lands, tenements, ad- 
 vowson, hereditaments, and premises com- 
 prised in the said indentures of lease and re- 
 lease, and hereinbefore described, with their,
 
 Appointment. 235 
 
 and every of their rights, members, and ap- 
 purtenances, shall henceforth remain, con- 
 tinue, and be, and that the said indenture of 
 release of the day of and 
 
 the said common recovery thereupon suffered, 
 and the full force and effect of the same, and 
 every of them, shall operate, be, and enure, 
 and that the said William Andrews (the de- 
 mandant in the said recovery named), and 
 his heirs, shall stand and be seised of the said 
 manor, messuages, lands, tenements, advow- 
 son, hereditaments, and premises, and every 
 of them, and every part and parcel thereof, 
 To, for, and upon the uses, trusts, intents, 
 and purposes, and under and subject to the 
 powers, provisoes, declarations, and agree- 
 ments hereinafter expressed, declared, and 
 contained of and concerning the same. 
 
 And this indenture further witnesseth, Th e grant and 
 
 m • • release. 
 
 That in further pursuance of the said recited 
 agreement, and in consideration of the said 
 intended marriage, and of the sum of five 
 shillings of lawful money of Great Britain 
 by the said Henry Howard and Henry Hunt 
 in hand paid to the said Francis Frederick 
 and William Frederick, at or before the seal- 
 ing and delivery of these presents (the receipt 
 whereof is hereby acknowledged) ; They the 
 said Francis Frederick and William Frede- 
 rick have, and each of them hath granted, 
 bargained, sold, released, and confirmed, and
 
 236 Appointment. 
 
 by these presents do, and each of them doth 
 grant, bargain, sell, release, and confirm unto 
 the said Henry Howard and Henry Hunt (in 
 their actual possession now being by virtue of 
 a bargain and sale to them thereof made by 
 the said Francis Frederick and William Fre- 
 derick, in consideration of five shillings, by 
 indenture bearing date the day next before 
 the day of the date of these presents, for the 
 term of one whole year, commencing from 
 the day next before the day of the date of 
 the same indenture of bargain and sale, and 
 by force of the statute made for transferring 
 uses into possession), and to their heirs, all 
 and every the said manor, messuages, lands, 
 tenements, advowson, hereditaments, and 
 premises comprised in the same indentures of 
 lease and release, and hereinbefore described; 
 with their and every of their rights, members, 
 and appurtenances; and the reversion and re- 
 versions, remainder and remainders, yearly 
 and other rents, issues, and profits thereof, 
 and of every part and parcel thereof; and all 
 the estate, right, title, interest, trust, pro- 
 perty, claim, and demand whatsoever of them 
 the said Francis Frederick and William Fre- 
 derick, and of each of them, in, to, and out 
 of the same premises, and every of them, and 
 every or any part or parcel thereof. 
 
 Habendum. To Have and To Hold the said manor and 
 
 other hereditaments hereby granted and re-
 
 Appointment. 237 
 
 leased, or expressed or intended so to be 
 with their and every of their rights, members, 
 and appurtenances, unto the said Henry 
 Howard and Henry Hunt and their heirs for 
 ever; nevertheless, to, for, and upon the uses, 
 trusts, intents, and purposes, and under and 
 subject to the powers, provisoes, declarations, 
 and agreements hereinafter limited, expressed, 
 declared, and contained of and concerning 
 the same ; (that is to say,) 
 
 Until the said intended marriage shall Until marriage, 
 
 . to the uses pre- 
 
 take effect and be solemnized, To such and viousiy existing. 
 the same uses, upon and for such and the 
 same trusts, intents, and purposes, and under 
 and subject to such and the same powers, 
 provisoes, declarations, and limitations, as 
 the said manor, and other hereditaments, at 
 the time of, or immediately before the exe- 
 cution of these presents, were or stood 
 limited, settled, and assured; and from and 
 after the solemnization of the said intended 4 fterthenjar ' 
 
 nage, to the 
 
 marriage, uses following. 
 
 To the use, intent, and purpose, that the To the intent , 
 
 ' . that the intend- 
 
 said William Frederick and his assigns shall ed husband 
 
 may receive a 
 
 and may, during the joint lives of himself rent-charge du- 
 
 .. ring the joint 
 
 and the said Francis Frederick, by and out of lives of himself 
 
 , . . i i i t i aQ d Ills father. 
 
 the said manor and other hereditaments, have, 
 receive, and take the yearly rent or annual 
 sum of £ of lawful money of Great Bri-
 
 238 Appointment. 
 
 tain, free from taxes, and without any other 
 deduction whatsoever, the said yearly rent or 
 annual sum of ^£ to be paid and payable 
 to him the said William Frederick and his as- 
 signs, during the joint lives of himself and 
 the said Francis Frederick, at or in the com- 
 mon dining-hall of Lincoln's Inn, in the said 
 county of Middlesex, by quarterly payments, 
 on the days hereafter mentioned ; (that is to 
 say,) the twenty-fifth day of December, the 
 twenty-fifth day of March, the twenty-fourth 
 day of June, and the twenty-ninth day of 
 September, in every year, by even and equal 
 portions ; the first payment thereof to begin 
 and be made on such of the same days of 
 payment as shall first happen after the so- 
 lemnization of the said intended marriage : 
 
 And to the in- And to this further use, intent, and pur- 
 tent, that the # . 
 
 wife may re- pose, that the said Grace Griffith (in case she 
 
 ceive a rent- 
 charge for her shall survive the said William Frederick her 
 
 life, in bar of . 
 
 dower, in case intended husband), and her assigns, shall and 
 
 she shall sur- 
 
 viveherhus- may, from and after the decease of the said 
 William Frederick, yearly and every year, 
 during the then remainder of her natural life, 
 have, receive, and take, by and out of the said 
 manor and other hereditaments, the yearly 
 rent, or annual sum of ^Q of lawful money 
 of Great Britain, free from taxes, without any 
 other deduction whatsoever, and such yearly 
 rent, or annual sum of ^£ to be in full for
 
 Appointment. 239 
 
 the jointure of the said Grace Griffith, and in 
 lieu, bar, and satisfaction of and for her whole 
 dower or thirds, at common law, or by or on 
 account of custom or free bench, which she 
 can or may, or otherwise might or could have 
 or claim in or out of all and every, or any of 
 the freehold, copyhold, or customary manors, 
 messuages, lands, tenements, and heredita- 
 ments, whereof or whereunto the said Wil- 
 liam Frederick now is, or at any time or 
 times during the said intended coverture shall 
 be seised or entitled, for any estate of free- 
 hold, or copyhold of inheritance, or to which 
 dower or free bench is incident; and to be 
 paid to the said Grace Griffith, or her assigns, 
 at or in the common dining-hall of Lincoln's 
 Inn, in the county of Middlesex, by quarterly 
 payments, on the days hereinbefore mention- 
 ed ; the first quarterly payment thereof to be- 
 gin and be made on such of the said days as 
 shall first happen after the decease of the said 
 William Frederick. 
 
 And to and for this further use, intent, Power of dis " 
 
 training. 
 
 and purpose, that m case any quarterly pay- 
 ment or payments of either of the said year- 
 ly rents, or annual sums of ^B and gg so 
 payable for the time being as aforesaid, or any 
 part thereof, shall at any time or times be in 
 arrear or unpaid by the space of fourteen days 
 next over or after any of the said days where-
 
 240 Appointment, 
 
 on the same ought to be paid as aforesaid; 
 then, and so often as the same shall happen, it 
 shall and may be lawful for the person or per- 
 sons for the time being entitled to the yearly 
 rent or annual sum, the quarterly payment 
 whereof shall be so in arrear as aforesaid, 
 into and upon the said manor and other here- 
 ditaments, and into and upon every, or any 
 part or parcel thereof, to enter, and distrain 
 for the same yearly rent or annual sum ; and 
 the distress and distresses, then and there 
 found, to take, lead, drive, carry away, and 
 impound, and in pound to detain and keep 
 until the yearly rent or annual sum so behind 
 and unpaid, and all arrears thereof, together 
 with all costs, charges, and expenses occa- 
 sioned and incurred by taking and keeping 
 such distress or distresses, shall be fully paid 
 and satisfied ; and in default of payment there- 
 of, or of any part thereof, in due time after such 
 distress or distresses shall be taken, to ap- 
 praise, sell, and dispose of, or cause to be ap- 
 praised, sold, and disposed of, such distress or 
 distresses, or otherwise to act therein accord- 
 ing to the due course of law, in like manner 
 as in cases of distress taken for non-payment 
 of rent reserved upon common leases; to the 
 intent, that thereby and therewith, or other- 
 wise, the yearly rent or annual sum so behind 
 and unpaid as aforesaid, and all arrears there- 
 of, and all costs, charges, and expenses attend-
 
 Appointment. 2 J 
 
 ing the non-payment and recovery of the same, 
 shall and may be fully paid and satisfied. 
 
 And to and for this further use, intent, and Power of entry. 
 purpose, that in case any quarterly payment 
 or payments of the said yearly rents, or an- 
 nual sums of gg and ^£ or either of 
 them, or any part thereof, shall at any time 
 or times be in arrear or unpaid, by the space 
 of twenty-eight days next over or after any 
 of the said days hereinbefore mentioned and 
 appointed for payment thereof; then, and so 
 often as the same shall happen (although 
 no formal or legal demand thereof shall be 
 made), it shall and may be lawful for the 
 person or persons for the time being entitled 
 to the yearly rent or annual sum, the quarterly 
 payment whereof shall be so in arrear, into 
 and upon all and singular the said manor and 
 other hereditaments, or into and upon any 
 part thereof, in the name of the whole, to en- 
 ter, and the same to have, hold, occupy, pos- 
 sess, and enjoy, and the rents, issues, and pro- 
 fits thereof, and of every part thereof, to have, 
 receive, and take to and for his, her, or their 
 own use and benefit, until he, she, or they 
 shall thereby and therewith, or by any other 
 means, be fully paid and satisfied the yearly 
 rent or annual sum so behind and unpaid, and 
 all arrears thereof, and all such arrears of the 
 same as shall grow due or incur during the 
 time that he, she, or they shall by virtue of 
 
 VOL. II. K
 
 242 Appointment . 
 
 such entry or entries, be in possession of the 
 premises, or any part thereof; together with 
 all costs, charges, and expenses whatsoever 
 attending, or occasioned by, the non-payment 
 or recovery of the same, or any part thereof, 
 or in relation thereto ; such possession, when 
 taken, to be without impeachment of waste. 
 
 Ami subject to And as for and concerning the said manor, 
 
 the aforesaid 1 i ^ 1 1 t, 
 
 rents-charge messuages, lands, tenements, and heredita- 
 
 and powers, to xii aJII i 
 
 the use of tms- ments hereby appointed and released, or ex- 
 Sdredyears. pressed or intended so to be, from and imme- 
 diately after the solemnization of the said in- 
 tended marriage (subject to, and charged and 
 chargeable with, the said yearly rents or an- 
 nual sums of ^£ and ^ or such of 
 them as, according to events, shall be payable 
 for the time being as aforesaid, and to the re- 
 medies and powers hereinbefore given and 
 provided for securing the same respectively), 
 
 To the use of the said John Jones and 
 James Impey, their executors, administrators, 
 and assigns, for and during, and unto the 
 full end and term of two hundred yearg 
 thence next ensuing, and fully to be com- 
 plete and ended, without impeachment of 
 waste; upon and for the trusts, intents, and 
 purposes, and under and subject to the 
 powers, provisoes, declarations, and agree- 
 ments hereinafter expressed, declared, and 
 contained of and concerning the same term ;
 
 Appointment. 243 
 
 and from and immediately after the end, ex- 
 piration, or sooner determination of the said 
 term of two hundred years, and in the mean 
 time subject thereto, and to the trusts there- 
 of, 
 
 To the use of the said Francis Frederick Remainder to 
 
 the use of the 
 father for life ; 
 
 and his assigns, for and during the term of ,hl 
 
 his natural life, without impeachment of or 
 for any manner of waste ; and from and im- 
 mediately after the determination of that es- 
 tate by forfeiture, or otherwise, in his life- 
 time, 
 
 To the use of the said Henry Howard and Remainder to 
 Henry Hunt and their heirs, during the life teeMo preserve 
 of the said Francis Frederick, in trust to sup- mrinE; w 
 port and preserve the contingent uses and es- 
 tates hereinafter limited from being defeated 
 or destroyed : and for that purpose to make 
 entries and bring actions, as occasion may re- 
 quire ; but nevertheless to permit and suffer 
 the said Francis Frederick and his assigns, 
 during his life, to receive and take the rents, 
 issues, and profits of the premises, to and for 
 his and their own use and benefit; and from 
 and immediately after his decease. 
 
 To the use of the said William Frederick Remainder to 
 
 . r . i . i n the use of the 
 
 and his assigns, for and during the term ot intended hus- 
 his natural life, without impeachment of or 
 for any manner of waste ; and from and im- 
 r 2
 
 244 Appointment. 
 
 mediately after the determination of that es- 
 tate by for feiture, or otherwise, in his lifetime, 
 
 Remainder to To the use of the said Henry Howard and 
 
 the use of trus- 
 tees, to preserve Henry Hunt and their heirs, during the life of 
 
 contingent re- . 
 
 mftinders; the said William Frederick, in trust to pre- 
 serve and support the contingent uses and 
 estates hereinafter limited from being; de- 
 feated or destroyed ; and for that purpose to 
 make entries and bring actions, as occasion 
 may require: but nevertheless to permit and 
 suffer the said William Frederick and his as- 
 signs, during his life, to receive and take the 
 rents, issues, and profits of the premises to 
 and for his and their own use and benefit; 
 and from and immediately after the decease 
 of the survivor of them the said Francis Fre- 
 derick and William Frederick, 
 
 Remainder to 
 the use of trus- 
 tees for five 
 hundred years 
 
 To the use of the said Launcelot Lyon and 
 Luke Lucas, their executors, administrators, 
 and assigns, for and during, and unto the full 
 end and term of five hundred years thence 
 next ensuing, and fully to be complete and 
 ended, without impeachment of or for any 
 manner of waste ; nevertheless upon and for 
 the several trusts, intents, and purposes, and r 
 under and subject to the several powers, pro- 
 visoes, declarations, and agreements herein- 
 after expressed, declared, and contained of 
 and concerning the same term; and from and 
 after the end, expiration, or sooner deter min-
 
 Appointment. 245 
 
 ation of the said term of five hundred years, 
 and in the mean time subject thereto, and to 
 the trust thereof, 
 
 To the USe Of the first SOn (>f the bodv Of Remainder to 
 ... the use of the 
 
 the said William Frederick on the body of "^t son of the 
 
 • i r~\ 4~* • n* \ i • ■ 1 i • r> " lte,, ded inar - 
 
 the said Grace Griffith, his intended wife, riage in tail 
 lawfully to be begotten, and the heirs male 
 of the body of such first son lawfully issuing; 
 and for default of such issue, 
 
 To the use of the second, third, fourth, Remainder to 
 
 C k 1_ • . i in i i the use of the 
 
 nttn, sixth, and all and every other the son second and 
 
 1 i* i i i /• i -i ttt'ii- other sons of 
 
 and sons ot the body of the said Wil bam the marriage in 
 Frederick on the body of the said Grace 
 Griffith, his intended wife, lawfully to be be- 
 gotten, severally, successively, and in remain- 
 der, one after another, as they and every of 
 them, shall be in seniority of age and priority 
 of birth, and of the several and respective 
 heirs male of the body and bodies of all and 
 every such son and sons lawfully issuing ; the 
 elder of such sons, and the heirs male of his 
 body issuing, being always to be preferred, 
 and to take before, the younger of such sons, 
 and the heirs male of his and their body and 
 respective bodies issuing; and for default of 
 such issue, 
 
 I 
 
 To the use of the first son of the body of t ^ n ™ n J r ti ;° 
 the said William Frederick on the body of **■«»■' by any 
 
 " other wife, in 
 
 any other wife lawfully to be begotten, and ta!1 "«ie -, 
 
 r 3
 
 24G Appoint m v)tL 
 
 the heirs male of the body of such first son 
 lawfully issuing ; and for default of such 
 issue, 
 
 Remainder to To the use of the second, third, fourth, 
 
 lecondand 16 fifth, sixth, and all and every other the son 
 wyother'wffe and sons of thesaid William Frederick on the 
 in taiimaie; DO dy f any such other wife or wives lawfully 
 to be begotten, severally, successively, and in 
 remainder, one after another, as they, and 
 every of them, shall be in seniority of age 
 and priority of birth, and of the several and 
 respective heirs male of the body and bodies 
 of all and every such son and sons lawfully 
 issuing; the elder of such sons, and the heirs 
 male of his body issuing, being always to be 
 preferred, and to take before, the younger of 
 such sons, and the heirs male of his and their 
 body and respective bodies issuing ; and for 
 default of such issue, 
 
 Remainder to To the use of all and every the daughter 
 
 and daughters of the said William Frederick 
 
 the use of the 
 daughters of the 
 
 '^ft?™'OXi the body of the said Grace Griffith, his 
 
 nage, as tenants •> ' 
 
 tail™' T°aV" ^tended wife, lawfully to be begotten, equally 
 to be divided between or amongst them, 
 share and share alike, as tenants in common, 
 arnd not as joint tenants, and of the several 
 a»d respective heirs of the body and bodies 
 of all and every such daughter and daugh- 
 
 Cross remain- ters lawfully issuing; and in case there shall 
 
 ders hetween 1 /» *i /• • c c 
 
 them. bo a iailure or issue of any one or more 01
 
 Appointment. 247 
 
 such daughters, then as well as to the ori- 
 ginal share or shares of, as the share or shares 
 surviving or accuring to, such last-mentioned 
 daughter or daughters, or her or their issue, 
 to the use of all and every other the daughter 
 and daughters of the said William Frederick 
 on the body of the said Grace Griffith law- 
 fully to be begotten, to be divided between or 
 among them, if more than one, share and 
 share alike, as tenants in common, and not as 
 joint tenants, and of the several and respec- 
 tive heirs of their bodies issuing; and in case 
 all such daughters, but one, shall happen to 
 die without issue, or if there shall be but one 
 such daughter, then to the use of such sur- 
 viving or only daughter, and the heirs of her 
 body lawfully issuing; and for default of 
 such issue, 
 
 To the use of all and every the daughter (Remainder to 
 and daughters of the said William Frederick daughters b y e 
 on the body of any other wife or wives law- dagelnlike" 
 fully to be begotten, equally to be divided manner * 
 between or amongst them, share and share 
 alike, as tenants in common, and not as joint 
 tenants, and of the several and respective 
 heirs of the body and bodies of all and every 
 such daughter and daughters lawfully issu- 
 ing ; and in case there shall be a failure of 
 issue of any one or more of such daughters, 
 then as well as to the original share or shares 
 of, as to the share or shares surviving orac- 
 
 r4
 
 248 Appointment. 
 
 cruing to, such last-mentioned daughter or 
 daughters, or her or their issue, to the use of 
 all and every other the daughter and daugh- 
 ters of the said William Frederick, on the 
 body of any such other wife or wives lawfully 
 to be begotten, to be divided between or 
 among them, if more than one, share and share 
 alike, as tenants in common, and not as joint 
 tenants, and of the several and respective heirs 
 of their bodies issuing; and in case all such 
 daughters, but one, shall happen to die with- 
 out issue, or if there shall be but one such 
 daughter, then to the use of such surviving or 
 only daughter, and of the heirs of her body 
 lawfully issuing ; and for default of such 
 issue, 
 
 To the use of the said Francis Frederick, 
 his heirs and assigns for ever. 
 
 Trusts declared And as to, for, and concerning the said 
 
 of the term of „, . • , . i • 1 r 1* 
 
 200 years; term of two hundred years hereinbefore li- 
 mited in use to the said John Jones and 
 James Impey, their executors, administra- 
 tors, and assigns as aforesaid, it is hereby 
 agreed and declared between and by the said 
 pa.ities hereto, that the same is so limited to 
 them upon and for the trusts, intents, and 
 purposes, and under and subject to the 
 powers, provisoes, declarations, and agree- 
 ments hereinafter expressed, declared, and
 
 Appointment. '249 
 
 contained of and concerning the same ; (that 
 is to say,) 
 
 Upon trust, in case, and so often as, any in trust in the 
 
 r ' ' . first P lace for 
 
 quarterly payment or payments of the said further secur - 
 
 1 " * " * ingthetwo 
 
 yearly rents or annual sums of £ and rents-charge. 
 
 £ so payable respectively for the time 
 
 being as aforesaid, or either of them, or any 
 part thereof respectively, shall be behind and 
 unpaid by the space of forty days next over, 
 or after, any of the said days hereinbefore 
 appointed for payment of the same respec- 
 tively (although no formal or legal demand 
 thereof shall be made); then, and so often as 
 the same shall happen, that they the said 
 John Jones and James Impey,or the survivor 
 of them, or the executors, administrators, or 
 assigns of such survivor, shall and do from 
 time to time, by and out of the rents, issues, 
 and profits of the said manor and other here- 
 ditaments comprised in the said term of two 
 hundred years, or by demising, leasing, sell- 
 ing, or mortgaging the same premises, or any 
 of them, or any part thereof, for all, or any 
 part of, the same term, or by bringing actions 
 against the tenants or occupiers of the same 
 premises, or any of them, for the rents then 
 in arrear, or by such other ways or means as 
 to them or him shall seem meet, raise and 
 levy such sum and sums of money as shall 
 be sufficient from time to time to pay and sa- 
 tisfy such arrears of the said yearly rents or
 
 250 Appointment . 
 
 annual sums of £ and £ 
 
 or either of them, or so much thereof as shall 
 from time to time happen to be in arrear and 
 unpaid; together with all loss, costs, charges, 
 damages, and expenses, which the said John 
 Jones and James Impey, or the survivor of 
 them, or the executors, administrators, or as- 
 signs of such survivor, and the person or per- 
 sons for the time being respectively entitled 
 to such arrears as aforesaid, shall sustain, ex- 
 pend, or be put unto, for or by reason of the 
 non-payment of the same yearly rents or an- 
 nual sums of £ and £ or 
 either of them, or any part thereof, at the 
 days and times, and in manner before ap- 
 pointed for the payment thereof respectively; 
 and shall and do pay, apply, and dispose of 
 the same monies accordingly. 
 
 Andin trust, And upon further trust, in case the said 
 
 ienSimJband William Frederick shall die in the lifetime of 
 fattef's'iiL 1118 the said Francis Frederick, and there shall be 
 IZ'eXfZ one or more child or children of the said Wil- 
 STSStarf liam Frederick, on the body of the said 
 the carriage. Q race Griffith to be begotten, born in his 
 lifetime, or in due time after his decease, then, 
 and in such case, that the said John Jones 
 and James Impey, or the survivor of them, 
 or the executors, administrators, or assigns of 
 such survivor, shall and do, during the then 
 remainder of the life of the said Francis Fre- 
 derick (subject and without prejudice to the
 
 Appointment . 25 1 
 
 raising and paying the said yearly rent or an- 
 nual sum of £ and to the remedies 
 and powers for recovering the same as afore- 
 said), by and out of the annual rents and pro- 
 fits of the said manor and other heredita- 
 ments, comprised in the said term of two 
 hundred years, levy and raise for the mainte- 
 nance, support, and education of such child 
 or children, the yearly sum or sums of money 
 hereinafter mentioned ; (that is to say,) in 
 case there shall be but one such child, then 
 the yearly sum of one hundred pounds; and 
 in case there shall be two such children, and 
 no more, then the yearly sum of one hundred 
 and fifty pounds, to be equally divided be- 
 tween them, share and share alike ; and in 
 case there shall be three or more such chil- 
 dren, then the yearly sum of two hundred 
 pounds, to be equally divided among them, 
 share and share alike; and shall and do, at 
 their or his discretion, either themselves pay 
 and apply such sum or sums for the mainte- 
 nance, support, and education of such child 
 or children accordingly, or shall and do (if 
 they the said trustees or trustee for the time 
 being shall think proper) pay such sum or 
 sums of money to the guardian or guardians 
 for the time being of such child or children, 
 to be by such guardian or guardians applied 
 for or towards the maintenance, support, and 
 education of such child or children respec- 
 tively ; and it is hereby agreed and declared,
 
 252 Appointment. 
 
 that such respective sums for maintenance as 
 aforesaid shall be paidbyquarterly payments 
 on the days of payment hereinbefore men- 
 tioned, in every year, by equal portions; the 
 first payment thereof to begin and be made 
 on such of the said days, as shall first happen 
 after the decease of the said William Frede- 
 rick, dying: in the lifetime of the said Francis 
 Frederick as aforesaid. 
 
 Survivorship. Provided always, that in case any of the 
 
 said children, who shall become entitled to 
 the provision for maintenance as last herein- 
 before mentioned, shall afterwards die in the 
 lifetime of the said Francis Frederic, then 
 the share of each such child so dying of and 
 in such provision of maintenance as afore- 
 said, shall devolve upon, and vest in the sur- 
 vivors or survivor of them, in augmentation 
 of, and in addition to, his, her, or their ori- 
 ginal share or shares thereof as aforesaid ; but 
 so that the provision of maintenance for no 
 one such child shall exceed the yearly sum of 
 one hundred pounds, nor for two such chil- 
 dren the yearly sum of one hundred and fifty 
 pounds between them. 
 
 in trust to per- And upon further trust, that they the said 
 
 mit the persons T , , , ¥ T i>i 
 
 next in remain- John Jones and James lmpey, and the sur- 
 the oVe^pTuTof vivor of them, and the executors, adminis- 
 trators, and assigns of such survivor, shall 
 and do permit and suffer the person or per-
 
 Appointment. 253 
 
 sons, to whom the next or immediate rever- 
 sion or remainder expectant upon the deter- 
 mination of the said term of two hundred 
 years, of and in the premises therein compris- 
 ed, shall, for the time being, belong, to re- 
 ceive and take the rents and profits, or the 
 surplus of the rents and profits, which shall 
 remain after, and not be applied in or towards 
 the execution and performance of the trusts 
 hereby declared of the same term of two 
 hundred years. 
 
 Provided also, and it is hereby agreed and cesser of this 
 declared between and by the said parties here- 
 to, that when the trusts hereinbefore declared 
 of and concerning the said term of two hun- 
 dred years shall have been executed and per- 
 formed, or satisfied, or shall have become un- 
 necessary, or incapable of taking effect, and 
 the costs and charges (if any) of the trustees of 
 the same term, their executors, administrators> 
 and assigns, in and about the execution and 
 performance of the same trusts, shall have 
 been fully paid and satisfied (and which they 
 are hereby respectively authorized and em- 
 powered to levy and raise by all or any of 
 the ways and means aforesaid, and to retain 
 accordingly); then, and immediately thence- 
 forth, the said term of two hundred years of 
 and in the premises therein comprised, or so 
 much thereof as shall remain unsold and un-
 
 254 Appointment. 
 
 disposed of for the purposes aforesaid shall 
 cease, determine, and be absolutely void. 
 
 Trust declared And as, to, for, and concerning the said 
 fiv^bundrecf term of five hundred years hereinbefore li- 
 years. mited in use to the said Launcelot Lyon and 
 
 Luke Lucas, their executors, administrators, 
 and assigns as aforesaid, it is hereby agreed 
 and declared between and by the said parties 
 hereto, that the same is so limited to them 
 upon and for the trusts, intents, and purposes, 
 and under and subject to the powers, provi- 
 soes, declarations, and agreements hereinafter 
 expressed, declared, and contained of and 
 concerning the same term ; (that is to say,) 
 
 intrust for Upon trust, in case there shall be any 
 
 for Si y n oun°er 0ns child or children of the said William Frede- 
 chiidren. ^ck on the body of the said Grace Griffith, 
 his intended wife, to be begotten, other than, 
 or not being an eldest or only son for the 
 time being entitled, under the limitations 
 hereinbefore contained, to the said manor and 
 other hereditaments, for an estate tail in pos- 
 session, or in remainder immediately expect- 
 ant upon the decease of the survivor of the 
 saidWilliam Frederick andFrancisFrederick; 
 then that they the said Launcelot Lyon and 
 Luke Lucas, or the survivor of them, or the 
 executors, administrators, or assigns of such 
 survivor, shall and do either in the lifetime 
 of the said Wiliam Frederick with his con-
 
 Appointment. 255 
 
 sent in writing, or else not till after his de- 
 cease (but subject and without prejudice to 
 the life estate of the said Francis Frederick, 
 and to the raising and paying the said yearly 
 rent-charge or sum of £ hereinbe- 
 
 fore limited in use to the said Grace Griffith 
 for her life, and to such remedies for reco- 
 vering the same as aforesaid), by demise, sale, 
 or mortgage of the said manor and other he- 
 reditaments comprised in the same term of 
 five hundred years, or of a competent part 
 thereof for all or any part of the same term, 
 or by and out of the annual rents, issues, and 
 profits thereof, or by bringing actions against 
 the tenants or occupiers of the same premises, 
 or any of them, for the rents then in arrear, 
 or by all or any of the said ways or means, or 
 by such other ways or means, as they the said 
 Launcelot Lyon and Luke Lucas, or the sur- 
 vivor of them, or the executors, administra- 
 tors, or assigns of such survivor, shall think 
 fit, raise and levy, or borrow and take up at 
 interest, for the portion or portions of such 
 child or children, other than, or not being 
 any of them an eldest or only son for the time 
 being entitled as aforesaid, the sum or sums 
 of money hereinafter mentioned ; (that is to 
 say,) if there shall be but one such child, if but one 
 not being an eldest or only son entitled as « daughter, ' 
 aforesaid, the sum of three thousand pounds pfXrordtog 
 of lawful money of Great Britain, as and for tStSnt*' 
 the portion of such one child and to be paid husbn " '
 
 25(j Appointment. 
 
 and payable to, and to become vested in, 
 such one child, at or upon such age, day, or 
 time as the said William Frederick, by any 
 deed or writing, with or without power of 
 revocation and new appointment, to be sealed 
 and delivered by him in the presence of, and 
 attested by, two or more credible witnesses, 
 or by his last will and testament in writing, 
 or any codicil or codicils thereto, to be by 
 him signed and published in the presence of, 
 and attested by, three or more credible wit- 
 nesses, shall direct or appoint; and in default 
 of such direction or appointment, to be an 
 interest vested in such child, being a younger 
 son, at his age of twenty-one years, or being 
 a daughter, at her age of twenty-one years, 
 or day of marriage (which shall first happen); 
 and to be paid to him or her at or upon such 
 age or time accordingly, if the same shall 
 happen after the decease of the said William 
 Frederick ; but if the same shall happen in 
 his lifetime, then the same shall be paid im- 
 mediately after his decease, unless he shall 
 signify his consent in writing, under his hand 
 and seal, that the same shall be raised and paid 
 if two or more, m his lifetime; and if there shall be two or 
 
 £5000. ' 
 
 more such children, other than, or not being 
 any of them an eldest or only son entitled as 
 aforesaid, then the sum of five thousand 
 pounds of lawful money of Great Britain, for 
 the portions of such two or more children ; 
 the said sum of five thousand pounds to be
 
 Appoint moil. 257 
 
 shared and divided between or among such 
 children not being an eldest or only son, en 
 titled as aforesaid, in such parts or propor- 
 tions, and to vest in, and be paid to, such 
 children respectively, at or upon such ages, 
 days, or times, and to be subject to such 
 charges, provisoes, and limitations for the 
 benefit of some or one of the said children, 
 and in such manner, as the said William Fre- 
 derick, by any deed or deeds, instrument or in- 
 struments, in writing, with or without power 
 of revocation and new appointment, to be by 
 him sealed and delivered in the presence of, 
 and attested by, two or more credible wit- 
 nesses, or by his last will and testament in 
 writing, or any codicil or codicils thereto, to 
 be signed and published by him in the pre- 
 sence of, and attested by, three or more cre- 
 dible witnesses, shall director appoint; and 
 in default of such direction or appointment, 
 to be equally divided between or among such 
 children, other than, or not being any of 
 them an eldest or only son entitled as afore- 
 said, share and share alike ; the share or re- 
 spective shares of such of the said children 
 as shall be a younger son or sons, to become 
 a vested interest or vested interests in him or 
 them respectively, at his or their age or re- 
 spective ages of twenty-one years ; and the 
 share or shares of such of them as shall be a 
 daughter or daughters, to become a vested 
 interest or vested interests in her or them re- 
 
 VOL. II. s
 
 258 Appointment. 
 
 spectively, at her or their age or respective 
 ages of twenty-one years, or day or respec- 
 tive days of her or their marriages or respec- 
 tive marriages (which shall first happen), 
 and to be paid and payable at or upon the 
 same ages, days, or times accordingly, in 
 case the same shall happen after the decease 
 of the said William Frederick ; but in case the 
 same shall respectively happen in the life- 
 time of the said William Frederick, then 
 the same shall be paid immediately after his 
 decease, unless he shall signify such consent 
 as aforesaid, that the same, or any of them, 
 shall be raised and paid in his lifetime. 
 
 No mortgage or 
 sale to be made 
 in the lifetime 
 of the father. 
 
 Provided always, that no sale or mort- 
 gage, for raising such portion or portions, as 
 hereinbefore mentioned, of the said manor 
 and other hereditaments, or any of them, or 
 any part thereof, shall be made in the lifetime 
 of the said Francis Frederick, unless with his 
 consent and approbation, testified in writing 
 under his hand and seal. 
 
 Provision in 
 case of a par- 
 tial appoint- 
 ment. 
 
 Provided always, and it is hereby agreed 
 and declared between and by the said parties 
 hereto, that in case any appointment shall be 
 made in pursuance of the powers aforesaid, 
 or either of them, which shall only extend to 
 a part or parts of the sum or sums of money 
 hereby intended for the portion or portions of 
 such child or children, other than or not being
 
 Appointment. 259 
 
 an eldest or only son, entitled as aforesaid, 
 such appointment shall be valid and effectual, 
 notwithstanding the non-appointment of the 
 remaining part or parts of such portion or 
 portions; bnt in that case, any child entitled 
 to a portion or share under such appointment, 
 shall be entitled to no further share of and in 
 the remaining or unappointed part or parts of 
 the monies hereby intended for portions as 
 aforesaid, until he or she shall have brought 
 his or her appointed share into hotchpot, and 
 shall have accounted for the same accord- 
 ingly; unless the said William Frederick shall 
 declare a contrary intention in writing. 
 
 And upon further trust, that they the said Provision for 
 Launcelot Lyon and Luke Lucas, and the 
 survivor of them, and the executors, admi- 
 nistrators, and assigns of such survivor, shall 
 and do in the mean time from and after the 
 decease of the said William Frederick, and 
 until the portion or portions hereby intended 
 for daughters and younger sons, as aforesaid, 
 shall respectively become payable as aforesaid 
 (but subject and without prejudice as afore- 
 said), by and out of the annual rents and 
 profits of the said manor and other heredi- 
 taments comprised in the said term of five 
 hundred years, levy and raise, for the main- 
 tenance and education of such child or chil- 
 dren, not being any of them an eldest or only 
 son, such yearly sum and sums of money as 
 s2
 
 260 Appointment. 
 
 hereinafter mentioned ; (that is to say,) until 
 such child or children shall respectively at- 
 tain the age of twelve years, such yearly sum 
 for each of them as will be equivalent to the 
 interest of the portion hereby intended for 
 him or her as aforesaid, after the rate of two 
 pound* for every one hundred pounds by the 
 year ; and from and after the age of twelve 
 years, and until such portion or respective 
 portions shall become payable, such yearly 
 sum for each such child as will be equivalent 
 to the interest of the portion hereby intended 
 for him or her as aforesaid, after the rate of 
 four pounds for every one hundred pounds 
 by the year; and also shall and do, at their 
 or his discretion, either themselves pay and 
 apply such sums for the maintenance and 
 education of such child or children accord- 
 ingly, or shall and do (if they the said trus- 
 tees or trustee for the time being shall think 
 proper) pay the said several sums of money 
 to the guardian or guardians for the time 
 being of such child or children, to be by 
 such guardian or guardians applied for or to- 
 wards the maintenance and education of such 
 
 • 
 
 child or children respectively ; and it is here- 
 by agreed and declared, that such respective 
 sums for maintenance as aforesaid, shall be 
 paid by quarterly payments on the days of 
 payment hereinbefore mentioned, in every 
 year, by equal portions ; the first payment 
 thereof to begin and be made on such of the
 
 Appointment. 261 
 
 said days, as shall first happen after the de- 
 cease of the said William Frederick. 
 
 Provided always, and it is hereby agreed survivorship. 
 and declared between and by the said parties 
 hereto, that if there shall be more than one 
 such child, for whom portions are hereby 
 provided as aforesaid, and any of them being 
 a younger son or sons, shall depart this life, or 
 become an eldest or only son, under the age 
 of twenty-one years, or, being a daughter or 
 daughters, shall depart this life, under that 
 age, without being or having been married ; 
 then, and in such case, and in default of, and 
 subject to any such appointment as aforesaid, 
 the portion hereby intended to be provided for 
 each such daughter, and for each such son so 
 dying, or becoming au eldest or only son, or 
 so much, and such part thereof, as shall not 
 be sooner advanced for any younger son or 
 sons as hereinafter mentioned, shall accrue 
 and belong to the survivor or survivors, and 
 other or others of such children (not being 
 an eldest or only son, entitled as aforesaid), 
 and shall vest in and be paid to him, her, 
 or them (if more than one), in equal parts 
 and shares, at or upon such and the same 
 ages, days, and times respectively, and in 
 such and the same manner, as is hereinbefore 
 declared, touching or concerning his, her, or 
 their original portion or portions, or as near 
 thereto as circumstances will permit ; and 
 s 3
 
 26'2 Appointment. 
 
 such benefit of survivorship and accruer shall 
 extend as well to the surviving or accruing, 
 as to the original portion or portions ; but so 
 nevertheless, that no one child shall by sur- 
 vivorship, or otherwise have or be entitled to 
 more than the sum of £ for his or her 
 
 portion. 
 
 Power to raise Provided always, and it is hereby agreed 
 aXaYcemVnfof and declared between and by the said parties 
 
 younger sons. hereto? ^ ft ^fl an( ] may be lawfu | for 
 
 the said Launcelot Lyon and Luke Lucas, or 
 the survivor of them, or the executors, admi- 
 nistrators, or assigns of such survivor, at 
 any time or times during the life of the said 
 William Frederick, with his consent and ap- 
 probation signified by some deed or deeds, 
 writing or writings, to be sealed and deli- 
 vered by him in the presence of, and to be 
 attested by, two or more credible witnesses, 
 and at any time or times after his decease, at 
 the discretion and of the proper authority of 
 the said Launcelot Lyon and Luke Lucas, or 
 the survivor of them, or the executors, admi- 
 nistrators, or assigns of such survivor, to 
 raise and levy, by all or any of the aforesaid 
 ways or means (but subject nevertheless, and 
 without prejudice as aforesaid), any sum or 
 sums of money, in part of the portion or por- 
 tions hereby intended for such of the said 
 children as shall be a younger son or sons, 
 and shall and do, with the consent iu writing
 
 Appointment. 203 
 
 of the said William Frederick during his life, 
 and after his decease at their or his discretion, 
 pay and apply the monies so to be raised for 
 thepurpose of placingor putting such younger 
 son or sons, for whom, or in part of whose 
 then presumptive portion or portions such 
 sum or sums of money shall be raised, in or 
 to any business, profession, or employment, 
 or otherwise for his or their benefit or ad- 
 vancement in the world, notwithstanding his 
 or their portion or portions shall not then 
 have become payable as aforesaid ; so never- 
 theless, that such sum or sums of money, so 
 to be raised as last mentioned, shall not ex- 
 ceed one half part of the presumptive portion 
 or portions of such son or sons respectively ; 
 and so nevertheless, that such sum or sums 
 shall be considered and taken as a part of the 
 portion or portions hereby provided for such 
 son or sons, for whose benefit such sum or 
 sums shall be raised as aforesaid. 
 
 And upon this further trust, that they the The persons 
 
 next in remain- 
 
 said Launcelot Lyon and Luke Lucas, and der to receive 
 
 . ■, , , the surplus of 
 
 the survivor of them, and the executors, ad- the rents. 
 ministrators, and assigns of such survivor, 
 shall and do permit and suffer the person or 
 persons, to whom the next or immediate re- 
 version or remainder expectant upon the de- 
 termination of the said term of five hundred 
 years of and in the premises therein com- 
 prised, shall for the time belong, to receive 
 
 s4
 
 264 Appointment. 
 
 the rents and profits, or the surplus of the 
 rents and profits, which shall remain after, 
 and not be applied in, or towards, the execu- 
 tion and performance of the trusts hereby 
 declared of the said term of five hundred 
 years. 
 
 Money advan- Provided always, and it is hereby further 
 
 ced by the tins- " 
 
 band in his life- agreed and declared between and by the said 
 
 time, to be . . , 
 
 considered as parties hereto, that in case the said William 
 
 part of the por- . . „ ". J . . , . 
 
 tions. Jbredenck snail in his lifetime give or ad- 
 
 vance any sum or sums of money for or to- 
 wards the preferment or advancement of any 
 of the said children, being a younger son or 
 sons, in the way of, or for the placing him or 
 them in, any profession, business, or employ- 
 ment, or, being a daughter or daughters, in 
 marriage; then, and in such case, if any such 
 sum or sums of money so to be advanced 
 shall be equal to, or exceed, the portion or 
 portions hereinbefore intended to be provided 
 for such child or children respectively, such 
 advanced sum or sums shall be accounted in 
 full for the portion or portions so as aforesaid 
 intended to be provided for such child or 
 children respectively ; but if such advanced 
 sum or sums shall be less than the portion or 
 portions hereinbefore intended to be provided 
 for such child or children respectively, then 
 such advanced sum or sums shall be ac- 
 counted as part of the portion or portions so 
 as aforesaid provided or intended for such
 
 Appointment. 265 
 
 child or children respectively; unless he the 
 said William Frederick shall declare the con- 
 trary thereof respectively by any writing 
 under his hand a . 
 
 Provided also, and it is hereby further Cesser of the 
 agreed and declared between and by the said 
 parties hereto, that when the trusts hereinbe- 
 fore declared of and concerning the said term 
 of five hundred years, shall have been exe- 
 cuted and performed, or satisfied, or shall have 
 become unnecessary, or incapable of taking 
 effect, and the costs and charges (if any) of the 
 trustees of the same term, their executors, ad- 
 ministrators, and assigns, in and about the 
 execution and performance of the same trusts, 
 shall have been fully paid and satisfied (and 
 
 a If a father advances a to add the following clause: 
 child under this clause, the " and in case any child or 
 effect of such advancement "children shall he so ad- 
 is not clear; whether the " vanced, as aforesaid, by 
 sum advanced is to be kept " the said 
 on foot as part of the per- " he the said 
 sonal estate of the father; " shall (unless he shall de- 
 whether the other children " clare a contrary intention 
 are to be entitled to the " in writing) stand in the 
 whole sum directed to be " place of the child, or chil- 
 raised in exclusion of the " dren,soadvancedasafore- 
 child advanced (Folkes " said, in respect of the sum 
 v. Western, 9 Ves. 456) ; " or sums of money, so by 
 or whether so much of the " him given by way of ad- 
 original sum directed to be " vancement as aforesaid, 
 raised as will be equal to " and, to the extent of such 
 the sum advanced, will be " advancement, shall be con- 
 extinguished for the benefit " sidered as a purchaser of 
 of the persons in remainder " the share or shares of 
 (Pitfleld's case, 2 P. W. " such child or children." 
 513.)? It is, therefore, proper
 
 266 Appointment. 
 
 which they are hereby respectively authorized 
 and empowered to levy and raise by all or any 
 of the ways and means aforesaid, and to re- 
 tain accordingly); then, and immediately 
 thenceforth, the said term of five hundred 
 years of and in the premises therein com- 
 prised, or so much thereof as shall remain un- 
 sold and undisposed of for the purposes afore- 
 said, shall cease, determine, and be absolutely 
 void. 
 
 Power enabling Provided also, and it is hereby further 
 imsbandto agreed and declared between and by the said 
 tareonany'rf- parties hereto, that if the said Grace Griffith 
 
 ter-taken wife, ^j, ^ in ^ |j fet j me Q f the gaid William 
 
 Frederick, then, and in such case, it shall 
 and may be lawful for the said William 
 Frederick, either before or after his marriage 
 with any woman or women, whom he shall 
 thereafter marry, by any deed or deeds, instru- 
 ment or instruments, in writing, with or with- 
 out power of revocation and new appointment, 
 to be by him sealed and delivered in the pre- 
 sence of, and attested by, two or more cre- 
 dible witnesses, or by his last will and testa- 
 ment in writing, or any codicil or codicils 
 thereto be by him signed and published in 
 the presence of, and attested by, three or more 
 credible witnesses (but subject nevertheless, 
 and without prejudice to the said term of two 
 hundred years, and the trusts thereof, and to 
 the estate hereby limited to the said Francis
 
 Appointment. 267 
 
 Frederick for his life of and in the aforesaid 
 manor and other hereditaments), to limit and 
 appoint unto, or to the use of, or in trust for, 
 any woman or women, whom the said William 
 Frederick shall after the decease of the said 
 Grace Griffith happen to marry, for her or 
 their life or respective lives, and for her or 
 their jointure or respective jointures, and in 
 bar, or without being in bar, of her or their 
 dower, any annual sum, or yearly rent-charge, 
 or annual sums, or yearly rents-charge, not 
 exceeding for any such woman the sum of 
 gg of lawful money of Great Britain, 
 
 free from taxes, and without any other de- 
 duction whatsoever, to be issuing out of, 
 and charged and chargeable upon, all or 
 any part or parts of the said manor and other 
 hereditaments expressed to be hereby ap- 
 pointed and released, and to limit and ap- 
 point to the woman or women respectively to 
 or for the benefit of whom such annual sum 
 or yearly rent-charge, or annual sums or 
 yearly rents-charge, shall be appointed as 
 aforesaid, usual powers aud remedies for re- 
 covering and enforcing payment thereof when 
 in arrear, by distress and entry upon, and 
 perception of the rents and profits of the 
 hereditaments which shall be so charged with 
 the said aunual sum or yearly rent-charge, 
 or annual sums or yearly rents-charge, and 
 also to limit and appoint the hereditaments
 
 2t)8 Appointment. 
 
 which shall be so charged as aforesaid (sub 
 ject and without prejudice as aforesaid), to 
 any person or persons, his or their executors, 
 administrators, and assigns, for any term or 
 terms of years, with or without impeachment 
 of waste, upon such trusts, for better securing 
 the payment of such yearly rent-charge, as to 
 the said William Frederick shall seem meet; 
 but so that upon the death of the woman, for 
 the benefit of whom any such term shall be so 
 limited, and the payment of the arrears of her 
 rent-charge, and the expenses (if any) incurred 
 by the non-payment thereof, the term to be 
 limited for securing the said yearly rent- 
 charge, or so much of the same term as shall 
 not be disposed of under the trusts to be de- 
 clared for securing the same yearly rent- 
 charge, shall be made to cease and deter- 
 mine. 
 
 Power of Provided always, and it is hereby further 
 
 leasing. 
 
 agreed and declared, that it shall and may be 
 lawful to and for the said Francis Frederick 
 and William Frederick from time to time, 
 during their joint lives, and after the decease 
 of either of them, then to and for the survi- 
 vor of them, from time to time during his life, 
 and after the decease of such survivor, then 
 to and for the guardian or guardians for the 
 time being of any child or children of the 
 said William Frederick, who, by virtue of, or 
 under the limitations hereinbefore contained;
 
 Appointment. 269 
 
 shall be entitled to the actual freehold or in- 
 heritance of the said hereditaments and pre- 
 mises, from time to time, during the minority 
 of such child or children respectively, to de- 
 mise or lease all or any part or parts of the 
 said hereditaments and premises, with the ap- 
 purtenances, to any person or persons for any 
 term or number of years, not exceeding 
 twenty-one years in possession, and not in re- 
 version, or by way of future interest ; so 
 that there be reserved and made payable on 
 every such lease, during the continuance 
 thereof, the best and most improved yearly 
 rent or rents, to go along with, and be inci- 
 dent to, the immediate reversion of the pre- 
 mises so to be leased, that can or may be rea- 
 sonably had or gotten for the same, without 
 taking any fine, premium, or foregift for the 
 making thereof; and so that in every such 
 lease there be contained a condition of re- 
 entry on the non-payment of the rent or rents 
 to be thereon, or thereby, respectively reserv- 
 ed by the space of twenty-one days next after 
 the same shall become due and payable; and 
 so that the lessee or the respective lessees, 
 to whom such lease or leases shall be made, 
 seal and deliver a counterpart or counterparts 
 of such lease or leases ; and so that none 
 of the lessees, to whom any such lease or 
 leases shall be made, be, by any clause or 
 words therein contained, authorized to com- 
 mit waste, or exempted from punishment for
 
 270 Appointment. 
 
 committing waste ; any thing herein con- 
 tained to the contrary thereof notwithstand- 
 ing. 
 
 ciausesof.n- Provided also, and it is hereby further 
 
 agreed and declared between and by the said 
 parties hereto, that the said several trustees, 
 and each and every of them, their and each 
 and every of their heirs, executors, adminis- 
 trators and assigns, shall be charged and 
 chargeable only for so much money, as they 
 and every of them shall respectively actually 
 receive by virtue of, or under, the trusts 
 aforesaid ; and that any one or more of them 
 shall not be answerable for the other or others 
 of them, nor for the acts, receipts, reglects, 
 or defaults of the other or others of them ; 
 but each of them for his own acts, receipts, 
 neglects, and defaults only ; nor shall they 
 or any of them be answerable or accountable 
 for any person or persons,who is, are, or shall 
 be the receiver or receivers of the rents and 
 profits of the said hereditaments and pre- 
 mises, or any of them, or any part thereof; or 
 in whose hands the same, or any of the trust- 
 monies, shall or may be deposited or lodged 
 for safe custody; nor for any misfortune, loss, 
 or damage, which may happen in the execu- 
 tion of any of the aforesaid trusts, or in rela- 
 tion thereto, except the same shall happen by 
 or through their own wilful neglects or de- 
 faults respectively ; and also that the said se-
 
 Appointment. 271 
 
 veral trustees, and each and every of them, 
 their and each and every of their heirs, exe- 
 cutors, administrators, and assigns, shall and 
 may, by and out of the monies which shall 
 come to their respective hands by virtue of 
 the trusts aforesaid, retain to, and reimburse 
 themselves respectively, and also allow to 
 their and his co-trustee and co-trustees, all 
 loss, costs, damages, and expenses, which he 
 or they, or any of them, shall or may respec- 
 tively suffer, sustain, expend, disburse, or be 
 put unto, or which shall or may be to him, 
 them, or any of them, occasioned for, or on 
 account, or by reason or means, of the trusts 
 hereby in them reposed, or the management 
 and execution thereof, otherwise howsoever 
 relating: thereto. 
 
 ■© 
 
 And the said Francis Frederick and Wil- Covenant for 
 1-1 -i * i /• i tne fife- 
 
 ham rredenck, tor themselves, severally and 
 
 respectively, and for their several and respec- 
 tive heirs, executors, and administrators, do 
 hereby severally covenant, promise, and agree 
 with and to the said Henry Howard and Henry 
 Hunt, their heirs and assigns, in manner and 
 form following ; (that is to say,) 
 
 That (for and notwithstanding any act, 
 deed, matter, or thing whatsoever made, done 
 committed, executed, or suffered by him the 
 said Francis Frederick, or any of his ances- 
 tors, or by the said William Frederick, to the
 
 272 Appointment. 
 
 contrary, they the said Francis Frederick and 
 William Frederick now at the time of the 
 sealing* and delivery of these presents, have 
 in themselves good right, full power, and law- 
 ful and absolute authority, to limit and ap- 
 point, grant, bargain, sell, release, and convey 
 the manor, messuages, lands, advowson, tene- 
 ments, hereditaments, and premises hereby 
 limited and appointed, granted and released, 
 or intended so to be, and every of them, and 
 every part and parcel thereof, with their and 
 every of their rights, members, and appurte- 
 nances, to the uses, and upon and for the 
 trusts, intents, and purposes, and in manner 
 and form aforesaid, according to the true in- 
 tent and meaning of these presents : 
 
 And likewise, that the manor, messuages, 
 advowson, lands, tenements, hereditaments, 
 and premises hereby limited, appointed, grant- 
 ed, and released, or intended so to be, and 
 every of them, and every part and parcel 
 thereof, with their and every of their rights, 
 members, and appurtenances, shall and law- 
 fully may from time to time, and at all times 
 hereafter, remain, continue, and be, to the se- 
 veral uses, upon the several trusts, and for the 
 several intents and purposes, hereinbefore 
 limited, created, expressed, and declared of 
 and concerning the same, and shall and may 
 be peaceably and quietly had, held, and en- 
 joyed accordingly; without the let, suit,
 
 appointment. 278 
 
 trouble,denial, eviction, ejection, disturbance, 
 molestation, hind ranee, interruption, claim, or 
 demand whatsoever of, from, or by the said 
 Francis Frederick and William Frederick, or 
 either of them, or their, or either of their 
 heirs, or any person or persons claiming, or to 
 claim by, from, through, under, or in trust for 
 them, or any of them, or any of the ances- 
 tors of the said Francis Frederick ; 
 
 And that free and clear, and freely, clearly, 
 and absolutelyacquitted, exonerated, and dis- 
 charged, or otherwise by them the said Fran- 
 cis Frederick and William Frederick, or one 
 of them, their or one of their heirs, execu- 
 tors or administrators, well and sufficiently 
 saved, defended, kept harmless, and indem- 
 nified, of, from, and against all former, and 
 other gifts, grants, bargains, sales, leases, 
 mortgages, jointures, dowers, right and title 
 of dower, uses, intails, trusts, wills statutes- 
 merchant and of the staple, recognizances, 
 judgments, extents, executions, rents, arrears 
 of rent, annuities, legacies, sum and sums of 
 money, yearly payments, forfeitures, re-en- 
 tries, cause and causes of forfeiture and re- 
 entry, debts of record, debts due to the king's 
 majesty, and of, from, and against all and 
 singular other titles, troubles, charges, and 
 incumbrances whatsoever, made, done, exe- 
 cuted, committed, or suffered by the said 
 Francis Frederick and William Frederick, or 
 
 VOL. II. T
 
 274 Appointment. 
 
 either of them, or any of the ancestors of the 
 said Francis Frederick; 
 
 And moreover, that they the said Francis 
 Frederick, and William Frederick, and their 
 heirs, and all and every other person or per- 
 sons, having, or lawfully claiming, or who 
 shall or may at any time or times hereafter 
 have, or lawfully claim, any estate, right, 
 title, interest, inheritance, property, or de- 
 mand whatsoever, either at law or in equity, 
 of, in, to, or out of the manor, messuages, 
 lands, advowsons, tenements, hereditaments, 
 and premises hereby limited and appointed, 
 granted and released, or intended so to be, or 
 of, in, to, or out of any of them, or any part 
 or parcel thereof, by, from, under, or in trust 
 for them, or any of them, or any of the an- 
 cestors of the said Francis Frederick, shall 
 and will from time to time, and at all times 
 hereafter, upon every reasonable request of 
 the said Henry Howard and Henry Hunt, 
 their heirs or assigns, but at the proper costs 
 and charges in the law of the person or per- 
 sons for the time being beneficially interested 
 in the premises, make, do, acknowledge, levy, 
 suffer and execute, or cause and procure to be 
 made, done, acknowledged, levied, suffered 
 and executed, all and every such further and 
 other lawful and reasonable act and acts, 
 thing and things, deed and deeds, devices, 
 conveyances, and assurances in the law what-
 
 Appointment. 275 
 
 soever, for the further, better, more perfectly, 
 and absolutely granting, releasing, and assur- 
 ing the manor, messuages, lands, advowson, 
 tenements, hereditaments, and premises here- 
 by limited and appointed, granted and releas- 
 ed, or intended so to be, and every of them, 
 and every part and parcel thereof, with their 
 and every of their rights, members, and ap- 
 purtenances, to the several uses, upon the 
 several trusts, and for the several intents and 
 purposes and under and subject to the se- 
 veral powers, provisoes, declarations, and 
 agreements hereinbefore created, expressed, 
 declared, and contained of and concerning 
 the same, or such of them as shall then re- 
 main to be performed, and capable of taking 
 effect; be the same by tine, feoffment, com- 
 mon recovery or recoveries, or other matter 
 of record, or not of record, or otherwise 
 howsoever; as by them the said Henry 
 Howard and Henry Hunt, or the survivor of 
 them, his heirs or assigns, or any of them, 
 their or any of their counsel in the law, shall 
 be reasonably advised, or devised, and re- 
 quired; so that such further assurance or as- 
 surances contain or imply in them no further 
 or other covenant or warrantry than against 
 the person or persons who shall make and 
 execute the same, his, her, or their heirs, 
 executors, and administrators' acts and 
 deeds only; and so that the party or parties 
 who shall be required to make and execute 
 
 t 2
 
 276 Appointment. 
 
 any such further assurance or assurances, be 
 not compelled, nor compellable, for the 
 making or doing thereof, to go or travel 
 from his, her, or their dwelling, or respec- 
 tive dwellings, or usual place or places of 
 abode. In witness, &c. 
 
 THE following form of an appointment, by 
 reference to the uses of a subsisting settle- 
 ment, with the addition of new uses, and a 
 provision for making the new uses subject 
 to thepowerscreated by reference, was pre- 
 pared by the author's friend, Lewis Duval, 
 Esq., and is published by his permission, 
 and at the author's request. 
 
 This Indenture, &c. 1822. 
 
 Between Henry Thomson of &c. Esq. and 
 William John Thompson, of &c. aforesaid 
 Esq. (the eldest surviving son and heir appa- 
 rent of the said Henry Thompson) of the 
 first part; George Thompson, of &c. Esq. 
 (the second surviving son of the said Henry 
 Thompson) of the second part: G. C.Wilson 
 of &c, spinster (the only child of Charles 
 Edmund Wilson of &c. aforesaid Esq.) of 
 the third part; and Edward Richards, of &c. 
 Esq. and Henry John Jackson, of &c, Esq., 
 Andrew B. Dixon and A. R. Dixon, both of 
 &c. Esq. of the fourth part:
 
 Appointment. 277 
 
 Whereas by an indenture of lease and an 
 indenture of appointment and release, bear- 
 ing date respectively on or about the 1st 
 and 2d days of June, 1821, the appointment 
 and release being made, or expressed to be 
 made, between the said Henry Thompson of 
 the first part, the said W. J. Thompson of 
 the second part, Henry Salter, Esq. and 
 William Baxter, Esq. of the third part, and 
 the rev. George Roberts, Clerk, and the 
 rev. Henry Maxwell, Clerk, of the fourth 
 part, All that the castle of C. in the county 
 of D. ; And all that the manor or lordship, or 
 reputed manor or lordship, of C. in the 
 county of D. ; And all that the borough of 
 C. and all royalties, franchises, and other 
 hereditaments to the said castle, manor, and 
 borough respectively belonging, or situate 
 within the said castle, manor, or borough, 
 or within the parish of C. aforesaid, or the 
 precincts or liberties thereof, whereof or 
 wherein the said Henry Thompson and 
 W. J. Thompson, or either of them, were or 
 was at the time of the date and execution of 
 a certain indenture of bargain and sale there- 
 in referred to, bearing date, &c. seised of any 
 estate tail, at law, or in equity, And all &c. 
 [here describe the parcels] with their and 
 every of their rights, royalties, members, 
 and appurtenances, were appointed, con- 
 veyed, or otherwise assured (subject, as to 
 t 3
 
 279 Appointment. 
 
 the whole, or some part or parts of the same 
 premises, to a yearly rent-charge of .£600 
 devised or limited by the will of Henry 
 Thompson, Esq. deceased, the father of the said 
 Henry Thompson (party hereto), to Margaret 
 Thompson, now the widow and relict of the 
 said Henry Thompson deceased, for her life, 
 and also to a yearly rent-charge of ,£800 
 theretofore created by the said Henry 
 Thompson (party hereto) for Frances Thomp- 
 son his wife, during her life, and to a yearly 
 rent charge of £1000 created by the said 
 Henry Thompson (party hereto), on the 
 marriage of Edward Thompson, his third sur- 
 viving son, for the honourable J. Thompson, 
 now the wife of the said Edward Thompson, 
 for her life, and to the powers and remedies, 
 and terms of years, limited or created for se- 
 curing or enforcing the payment of the same 
 yearly rent-charges respectively,) To the 
 uses, upon the trusts, and for the ends, in- 
 tents, and purposes, and under, and subject, 
 to the powers, provisoes, limitations, decla- 
 rations, and agreements in the said indenture 
 of appointment and release limited, ex- 
 pressed, and declared of and concerning the 
 same, and in part hereinafter mentioned ; 
 (that is to say,) As to, for, and concerning 
 the said manor or lordship, or reputed manor 
 or lordship, of C. with its rights, royalties, 
 members, and appurtenances in the said 
 county of D. And all that &c.
 
 Appointment. 279 
 
 To the use of the said Henry Thompson 
 (party hereto), his heirs and assigns for ever; 
 And, as, to, for, and concerning, all other 
 the said manors or lordships, or reputed 
 manors or lordships, boroughs, castles, ad- 
 vowsons, messuages, lands, tenements, he- 
 reditaments, and premises not hereinbefore 
 limited, in use to the said Henry Thompson 
 and his heirs, and every part of the same, 
 with their rights, royalties, members, and 
 appurtenances, To the use of such person or 
 persons, for such estate or estates, and for 
 such interest or interests, by way of annuity, 
 rent-charge, or otherwise, and in such parts, 
 shares, and proportions, and upon such 
 trusts, and for such intents and purposes, 
 and charged and chargeable in such manner, 
 and either absolutely or conditionally, and 
 subject to such powers of revocation and 
 new appointment, and other powers, provi- 
 soes, conditions, restrictions, limitations, de- 
 clarations, and agreements, as the said Henry 
 Thompson (party hereto), and W. J. Thomp- 
 son, jointly should at any time or times, and 
 from time to time, by any deed or deeds to 
 be sealed and delivered by them in the pre- 
 sence of one, two, or more credible witness 
 or witnesses, and attested by the same wit- 
 ness or witnesses, direct, limit, or appoint; 
 and in default of such direction, limitation, 
 or appointment,. and in the mean time, and 
 from time to time, subject to such uses, es- 
 
 t 4
 
 *2yo Appointment. 
 
 tates, trusts, charges, and interests, as should 
 have been directed, limited, or appointed by 
 the said Henry Thompson (party hereto,) 
 and W. J. Thompson jointly as aforesaid, 
 To the use, intent, and purpose that Frances 
 Thompson, the wife of the said Henry 
 Thompson, (party hereto,) in case she should 
 survive the said Henry Thompson, (party 
 hereto,) should, after the decease of the saiu 
 Henry Thompson, (party hereto,) and thence- 
 forth during- her natural life, receive, take, 
 and enjoy, one annual sum, or yearly rent- 
 charge, of £700, to be issuing and payable 
 out of, and charged and chargeable upon, all 
 and singular the said manors or lordships, or 
 reputed manors or lordships, and other here- 
 ditaments, with their appurtenances, except 
 the said hereditaments limited in fee simple 
 to the said Henry Thompson (party hereto), 
 and to be payable, as in the said indenture of 
 appointment and release is mentioned, with 
 the usual powers and remedies of distress 
 and entry, and detention of the possession 
 and perception of the rents and profits of the 
 same premises, for enforcing the payment 
 of the same annual sum or yearly rent-charge 
 of £700, when in arrear ; And subject 
 thereto, and also subject and without preju- 
 dice to the term of 500 years thereinafter 
 limited, and the trusts thereof, To the use of 
 the said Henry Thompson (party hereto), 
 and his assigns for his life, without impeach-
 
 Appointment. 281 
 
 ment of waste ; with remainder to the use of 
 the said H. Salter and W. Baxter, and their 
 heirs during the natural life of the said 
 Henry Thompson (party hereto), Upon 
 Trust to support the contingent remainders ; 
 with remainder to the use of the said George 
 Roberts and H. Maxwell, their executors, 
 administrators, and assigns, for the term of 
 500 years, without impeachment of waste, 
 Upon the Trusts, and for the ends, intents, 
 and purposes, thereinafter declared concern- 
 ing the same ; with remainder to the use of 
 the said William John Thompson and his as- 
 signs for his life, without impeachment of 
 waste; with remainder to the use of the said 
 H. Salter and W. Baxter and their heirs, dur- 
 ing the life of the said W. J. Thompson, Upon 
 Trust to support the contingent remainders ; 
 with remainder to the use of the first and 
 every other son of the said W. J. Thompson 
 severally, and successively according to their 
 respective seniorities in tail male ; with re- 
 mainder to the use of the said George Thomp- 
 son and his assigns for his life, without im- 
 peachment of waste; with remainder to the 
 use of the said Henry Salter and W. Baxter, 
 and their heirs during the life of the said 
 George Thompson, Upon Trust to support 
 the contingent remainders; with remainder 
 to the use of the first and every other son of 
 the said George Thompson severally and suc- 
 cessively, according to their respective se-
 
 282 Appointment. 
 
 niorities, in tail male ; with remainder to 
 the use of the said Edward Thompson and 
 his assigns during his life, without impeach- 
 ment of waste ; with several remainders 
 over ; and with the ultimate limitation to the 
 said Henry Thompson (party hereto), in fee 
 simple : And in the said indenture of appoint- 
 ment and release was contained (among 
 other provisoes, agreements, and declara- 
 tions) a proviso, agreement, and declaration, 
 that it should be lawful for the said W. J. 
 Thompson, George Thompson, and Edward 
 Thompson, respectively, when by virtue of the 
 limitations thereinbefore contained, they re" 
 spectively should be in the actual possession, 
 or entitled to the receipt of the rents and 
 profits of, the said manors or lordships, or 
 reputed manors or lordships, and other here- 
 ditaments, or any part thereof, by any deed 
 or deeds, instrument or instruments in writ- 
 ing, with or without power of revocation, to 
 be executed and attested astherein mentioned, 
 or by their respective last wills and testa- 
 ments in writing, or any codicil or codicils 
 thereto, to be signed, and published, and at- 
 tested as therein mentioned, to limit or ap- 
 point to, or to the use of, or in trust for, any 
 woman or women, whom they respectively, 
 and each of them, from time to time should 
 marry, for the life or lives of such woman or 
 women, for her or their jointure or jointures, 
 and in bar, or without being in bar. of her
 
 Appointment. 283 
 
 or their dower, or thirds at common law, or 
 by custom, any annual sum or sums, yearly 
 rent-charge, or rent-charges, not exceeding 
 in the whole the clear yearly sum of ^1500, 
 for any one wife, and to be issuing out of, 
 and charged and chargeable upon, all or any 
 part or parts of the said manors or lordships, 
 or reputed manors or lordships, and other 
 hereditaments, and with such power and re- 
 medies by distress, and entry upon, and de- 
 tention of the possession and perception of 
 the rents and profits of, the same heredita- 
 ments, and such term or terms of years 
 therein for better securing the due payment 
 thereof respectively, as the person or persons 
 making such appointment or appointments 
 should think fit ; and such appointment or ap- 
 pointments to take effect immediately, or at 
 any time after the determination of the estate 
 of the person or persons respectively making 
 such limitations or appointments, and such 
 limitations or appointments to be made 
 either before or after such intermarriage or 
 intermarriages, as to the person or persons 
 respectively, who should make such limita 
 tions or appointments, should seem meet; 
 And in the said indenture of appointment 
 and release was also contained a proviso, 
 agreement, and declaration, that it should be 
 lawful for the said Henry Thompson (party 
 hereto), by any deed or deeds, instrument or 
 instruments in writing, with or without
 
 284 Appointment, 
 
 power of revocation, to be executed and at- 
 tested as therein mentioned, or by his last 
 will or testament in writing, or any codicil or 
 codicils thereto, to be signed and published 
 and attested as therein mentioned, to limit 
 or appoint to, or to the use of, or in trust for, 
 any woman or women, with whom the said 
 George Thompson might from time to time 
 marry, or to his surviving wife, for the life 
 or lives of such woman or women, for her or 
 their jointure or jointures, and in bar, or 
 without being in bar, of her or their dower, 
 or thirds at common law, or by custom, any 
 annual sum or sums, yearly rent-charge or 
 rent-charges, not exceeding in the whole the 
 clear yearly sum of £800, to be issuing out 
 of, and charged and chargeable upon, all, or 
 any part or parts of, the said manors or lord- 
 ships, or reputed manors or lordships, and 
 other hereditaments, with their rights, royal- 
 ties, members, and appurtenances, with such 
 powers and remedies by distress and entry 
 upon, and detention of the possession and 
 perception of the rents and profits of, the 
 same hereditaments, and such term or terms 
 of years therein, for better securing the due 
 payment thereof respectively, as the said 
 H. Thompson (party hereto) should think 
 tit, and such appointment or appointments, 
 to take effect from, and immediately or at 
 any time after, the death of the said George 
 Thompson, and whether he should or should
 
 Appointment. 285 
 
 not become tenant for life in possession ; but 
 the said annual sum of £800 a year, or so 
 much thereof as might be appointed, &h;;i:!d 
 be, and should be deemed, apart satisfaction 
 of the annual sum, which might be appointed 
 by the said George Thompson, under his 
 power thereinbefore contained; And such limi- 
 tation or appointment to be made either before 
 or after such intermarriage or intermarriages, 
 and either before or after the person of the 
 woman, who was to be the jointress, should 
 be ascertained, as to the said Henry Thomp- 
 son (party hereto) should seem meet; And 
 in the said indenture of appointment and 
 release, are contained certain powers of leas- 
 ing and of sale and exchange, with usual pro- 
 visions for investing the monies to arise from 
 sale, or to be received for equality of ex- 
 change, in the purchase of other estates, to 
 be settled to the same uses, and for investing 
 the same monies in the mean time, upon 
 government or real securities; And whereas 
 a marriage hath been agreed upon, and is in- 
 tended to be shortly had and solemnized, 
 between the said George Thompson and the 
 said G. C. Wilson ; And whereas upon the 
 treaty for the said intended marriage, it was 
 agreed (among other things), that the said 
 Henry Thompson (party hereto), and W. J. 
 Thompson, should, in exercise of the power 
 of appointment limited to them jointly as 
 hereinbefore is mentioned, limit and appoint
 
 286 Appoiiitment. 
 
 to the said G. C. Wilson, and her assigns, 
 during her life, by way of jointure, and in 
 bar of dower, in case the said intended mar- 
 riage should take effect, and she should sur- 
 vive the said George Thompson, an annual 
 sum or yearly rent-charge of £800 ; and also 
 limit and appoint to the said G. C. Wilson 
 and her assigns, during her life, in case the 
 said intended marriage. should take effect, 
 and she should survive the said George 
 Thompson, a further annual sum or yearly 
 rent-charge of £700, to take effect in the 
 event hereinafter in that behalf specified, and 
 the same annual sums or yearly rent-charges 
 respectively to be payable at the times and 
 in the manner hereinafter mentioned and 
 appointed for the payment of the same respec- 
 tively, and with such powers and remedies 
 and term of years, for enforcing or providing 
 for the payment of the same respectively, as 
 are hereinafter mentioned and contained. 
 
 Now this indenture witnesseth, that for 
 effectuating the said agreement, and in con- 
 sideration of the said intended marriage, and 
 in pursuance and execution of the power or 
 authority to the said Henry Thompson (party 
 hereto), and W. J. Thompson, limited or re- 
 served in or by the said in part recited inden- 
 ture of appointment and release as hereinbefore 
 is mentioned, and ofevery,or any other power 
 or authority in any wise enabling them in
 
 Appointment. 287 
 
 this behalf, they the said Henry Thompson 
 (party hereto), and W.J. Thompson (with the 
 privity and approbation of the said George 
 Thompson and G. C. Wilson, testified by 
 their respectively being parties to, and sealing 
 and delivering these presents), do, by this 
 present deed, by them the said Henry Thomp- 
 son (party hereto), and W. J. Thompson, 
 sealed and delivered in the presence of, and 
 attested by, the two credible persons whose 
 names are intended to be hereupon indorsed, 
 as witnesses to the sealing and delivery 
 of these preseuts, by them the said Henry 
 Thompson (party hereto), and W. J. Thomp- 
 son, direct, limit, and appoint, That from 
 and immediately after the solemnization of 
 the said intended marriage between the said 
 George Thompson and G. C. Wilson, All and 
 singular the said manors or lordships, or re- 
 puted manors or lordships, boroughs, castles, 
 advowsons, messuages, lands,tenements, here- 
 ditaments, and premises, by the said in part 
 recited indenture of appointment and release 
 limited, To the uses and in manner hereinbe- 
 fore mentioned, (except the said heredita- 
 ments limited to the use of the said Henry 
 Thompson, party hereto, in fee-simple), shall 
 (subject and without prejudice to the said 
 several yearly rent-charges of £600, £800, 
 and £1000 respectively, and the powers, 
 and remedies, and terms of years, for se- 
 curing the payment of the same respec-
 
 288 Appointment. 
 
 tively), go, remain, and be to the uses, 
 upon and for the trusts, intents, and pur- 
 poses, and with, unde»\ and subject to, the 
 powers, provisoes, agreements, and declara- 
 tions, hereinafter expressed and declared or 
 referieu to, of or concerning the same ; (that 
 is to say,) To the use, intent, and purpose, 
 that the said G. C. Wilson and her assigns, 
 shall and may, in case she shall survive the 
 said George Thompson, have, receive, and 
 take, during the term of her natural life, for 
 her jointure, and in lieu, bar, and satisfac- 
 tion, of the dower or thirds, and free bench 
 at common law, or by custom or otherwise, 
 which she might otherwise have, claim, or de r 
 maud, in, to, or out of, all or any lands or 
 hereditaments in England or elsewhere, of 
 which he the said George Thompson now is, 
 or shall, during the said intended coverture, 
 be seised for any estate of inheritance, or for 
 any other estate, to which dower or free bench 
 is incident, one annual sum, or yearly rent 
 charge of £800 of lawful money of Great 
 Britain, to be chargeable upon, and yearly 
 issuing and payable out of, the said manors or 
 lordships, or reputed manors or lordships, 
 hereditaments and premises hereby limited 
 and appointed, and to be paid quarterly, at 
 or in the common dining hall of Lincoln's 
 Inn, in the county of Middlesex, by equal 
 quarterly payments on the four most usual 
 days of payment in the year; that is to say,
 
 Appointment. 
 
 the 25th day of March, the 24th day of June, 
 the 29th day of September, and the 25th day 
 of December in every year,\vithout any deduc- 
 tion or abatement whatsoever, on account or 
 in respect of any taxes, charges, impositions, 
 or assessments, already taxed, charged, as- 
 sessed, or imposed, or hereafter to be taxed, 
 charged, assessed, or imposed, on the said 
 manors or lordships, or reputed manors or 
 lordships, hereditaments and premises, or on 
 the said annual sum or yearly rent-charge of 
 £800, or the said G. C. Wilson or her assigns, 
 in respect thereof, by authority of parliament 
 or otherwise howsoever ; and the first quar- 
 terly payment thereof to be made on such of 
 the said days of payment, as shall happen 
 next after the decease of the said George 
 Thompson : And to and for this further use, 
 intent, and purpose, that in case, when, and 
 as often, as the said annual sum, or yearly 
 rent-charge of £800 hereinbefore limited, or 
 any part thereof, shall, at any time or times, 
 be unpaid by the space of twenty-one days 
 next after any of the days hereby appointed 
 for the payment thereof as aforesaid, then, 
 and so often, it shall be lawful to and for the 
 said G. C. Wilson and her assigns, during the 
 term of her natural life, to enter into, and 
 distrain upon, the said manors, &c. hereby 
 limited and appointed, or any part thereof, 
 and to dispose of the distress or distresses, 
 then and there found according to law, To 
 
 VOL. II. u 
 
 289
 
 90 Appointment. 
 
 the intent, that thereby, or otherwise, the 
 said annual sum or yearly rent-charge of 
 £800 hereby limited, and every part thereof, 
 so in arrear and unpaid, and all costs, 
 charges, and expenses, occasioned by reason 
 of the non-payment thereof, shall be fully 
 paid and satisfied ; And to and for this fur- 
 ther use, intent, and purpose, that in case the 
 said annual sum, or yearly rent-charge of 
 £800 hereby limited, or any part thereof, 
 shall, at any time or times, be unpaid by the 
 space of forty days next after any of the 
 said days appointed for the payment thereof, 
 Then and so often (although there shall not 
 have been any legal demand made thereof), 
 it shall be lawful for the said G. C. Wilson 
 and her assigns, during the term of her na- 
 tural life, to enter into and upon, and hold 
 the said manors or lordships, or reputed 
 manors or lordships, hereditaments and pre- 
 mises hereby limited and appointed, or any 
 part thereof, and to receive and take the 
 rents, issues, and profits thereof, to her and 
 their own use, until she or they shall thereby, 
 therewith, or otherwise, be fully paid and 
 satisfied the said annual sum, or yearly rent- 
 charge of £800 hereby limited, and the ar- 
 rears thereof, due at the time of such entry, 
 or afterwards to become due, during her or 
 their being in possession of the same pre- 
 mises ; Together with all costs, charges, and 
 expenses, which she or they shall sustain by
 
 Appointment. 291 
 
 reason of the non-payment thereof; and such 
 possession, when taken, to be without im- 
 peachment of waste. 
 
 And to and for this further use, intent, 
 and purpose, that if the said Henry Thomp- 
 son (party hereto) and W. J. Thompson shall 
 both die during the joint lives of the said 
 George Thompson and G. C. Wilson, and 
 there shall also happen, during the joint lives 
 of the said G. Thompson and G. C. Wilson, 
 a default or failure of issue male of the body 
 of the said W. J. Thompson, and the said 
 G. C. Wilson shall survive the said George 
 Thompson, then and in such case, she the 
 said G. C. Wilson and her assigns shall and 
 may, from and immediately after the decease 
 of the said George Thompson, receive and 
 take, during the term of her natural life (in 
 addition to the said annual sum or yearly 
 rent-charge of £800 hereinbefore limited), 
 one annual sum or yearly rent-charge of 
 £700 of lawful money of Great Britain, to be 
 chargeable upon, and yearly issuing, and pay- 
 able out of, all and singular the said manors 
 or lordships, &c. hereinbefore limited and 
 appointed, or intended so to be, and to be 
 paid quarterly on or at the days or times, 
 and without deduction for present or future 
 taxes, charges, impositions, or assessments, 
 in such manner, as is hereinbefore mentioned 
 and appointed, for the payment of the said 
 u2
 
 292 Appointment. 
 
 annual sum or yearly rent-charge of £800 
 hereinbefore limited ; And the first quarterly 
 payment of the said annual sum or yearly 
 rent-charge of £700, to be made on such of 
 the said quarterly days of payment herein- 
 before appointed, for the payment of the 
 said annual sum or yearly rent-charge of 
 £800, as shall happen next after the decease 
 of the said G. Thompson ; And to and for 
 this further use, intent, and purpose, that in 
 case the said annual sum or yearly rent- 
 charge of £700, or any part thereof, shall be 
 unpaid by the space of twenty-one days next 
 after any of the days appointed for the pay- 
 ment thereof as aforesaid, then, and so often 
 as the same shall happen, she the said G. C. 
 Wilson and her assigns shall and may, for 
 the recovery thereof, and of all costs and 
 damages occasioned by the non-payment 
 thereof, have and enjoy such and the like 
 power of distraining upon all, or any of, the 
 aforesaid manors, &c. and other heredita- 
 ments hereby charged with the payment of 
 the same; And also in case the said annual 
 sum or yearly rent-charge of £700 or any 
 part thereof, shall be in arrear or unpaid by 
 the space of forty days next after any of the 
 days appointed for payment of the same, the 
 said G. C. Wilson and her assigns shall and 
 may, for compelling payment and obtaining 
 satisfaction for the same, together with such 
 costs and damages as aforesaid, have and
 
 Appointment. 293 
 
 enjoy such and the like powers of entering 
 upon, and detaining the possession, and receiv- 
 ing and taking the rents, issues, and profits of, 
 all or any of the said manors, &c. charged with 
 the payment thereof, as hereinbefore is or are 
 limited to and for her the said G. C. Wilson 
 and her assigns ; for enabling her and them 
 to recover payment and obtain satisfaction 
 of and for the said annual sum or yearly rent- 
 charge of 8001. hereinbefore limited : and (sub- 
 ject and charged as hereinbefore is mentioned) 
 to the use of the said (the parties of the third 
 part) their executors, administrators, andas- 
 signs,for and during the term of two hundred 
 years, to be computed from the death of the 
 said G. Thompson, and thenceforth next ensu- 
 ing and fully to be complete and ended,with- 
 out impeachment of, or for, any manner of 
 waste, upon the trust, and for the intents and 
 purposes, and with, under, and subject to the 
 powers, provisoes, agreements, and declara- 
 tions hereinafter expressed and contained con- 
 cerning the same; and from and after the expi- 
 ration or sooner determination of the said term 
 of two hundred years, and in the mean time 
 subject thereto, and to the trusts thereof, to 
 the uses, upon and for the trusts, intents, and 
 purposes, and with, under, and subject to the 
 powers, provisoes, agreements, and declara- 
 tions to, upon, for, with, under, and subject to 
 which, the same premises, were and stood li- 
 mited and settled, by virtue of or under the 
 u 3
 
 294 Appointment. 
 
 hereinbefore in part recited indenture of ap- 
 pointment and release immediately before the 
 sealing and delivery of these presents, includ- 
 ing the aforesaid power of joint appointment by 
 the same indenture limited to the said Henry 
 Thompson (party hereto) and W. J. Thomp- 
 son, and intended to be herebv exercised as 
 aforesaid : save and except that the powers of 
 jointuring by the said indenture of appoint- 
 ment and release limited to the said George 
 Thompson and Henry Thompson (party here- 
 to) respectively, as hereinbefore is mentioned, 
 and hereby limited by a reference as aforesaid, 
 shall not be exciseable in favour of the said 
 G.C.Wilson; 
 
 And it is hereby agreed and declared be- 
 tween and by the parties to these presents, 
 that the said manors, &c. and other heredita- 
 ments, hereinbefore appointed, or expressed 
 and intended so to be, are hereby limited to 
 the said their executors, ad- 
 
 ministrators, and assigns, for the said term 
 of two hundred years, upon trust for the 
 further and better securing the payment of the 
 said several sums, or yearly rents, of 800/. 
 and 700/. hereinbefore respectively limited as 
 aforesaid, at the days and times and in the 
 manner hereinbefore mentioned and appoint- 
 ed for payment thereof respectively, without 
 any deduction or abatement as aforesaid ; for 
 which end it is hereby agreed and declared
 
 Appointment. 295 
 
 between and by the said parties to these pre- 
 sents, that the said their ex- 
 ecutors, administrators, and assigns, shall 
 and do permit and suffer the person and per- 
 sons to whom the immediate reversion or re- 
 mainder of the said manors or lordships, &c. 
 comprised in the said term of two hundred 
 years, expectant upon the determination 
 thereof, shall for the time being belong, ac- 
 cording to the limitations aforesaid, to receive 
 and take the rents, issues, and profits of the 
 same premises, until default shall happen to 
 be made of or in payment of the said annual 
 sums of 800/. and 700/., hereinbefore respec- 
 tively limited, or one of them, or some part 
 thereof respectively, at the times and in the 
 manner hereinbefore appointed for payment 
 of the same respectively; and that in case the 
 same annual sums, or yearly rent-charges of 
 800/. and 700/., or either of them, or any 
 part thereof respectively, shall happen to be 
 behind or unpaid by the space of forty days 
 next after any one of the said days, whereon 
 the same respectively are hereinbefore directed 
 to be paid, then and in such case, and so 
 often as the same shall happen, the said 
 
 or the survivors or survivor of 
 them, or the executors, administrators, or 
 assigns of such survivor, do and shall from 
 time to time by and out of the rents, issues, 
 and profits of the said manors, &c. comprised 
 in the said term of two hundred years, or by 
 u 4
 
 290 Appointment, 
 
 demising, leasing, or mortgaging the same 
 premises, or any part thereof, for all or any 
 part of the said term, or by bringing actions 
 against the tenants or occupiers of the same 
 premises for recovery of the rents and profits, 
 or by such other reasonableways or means, as 
 to the said or the survivors or survivor 
 
 of them, or the executors, administrators, or 
 assigns of such survivor, shall seem meet, 
 levy, raise, and pay the said annual sums or 
 yearly rent- charges of 800/. and 700/. herein- 
 before respectively limited, or such of them 
 as shall be so in arrear, and all arrears there- 
 of respectively, which shall be then due and 
 unpaid, or which shall afterwards, during 
 their continuance in possession, accrue of the 
 same, and all costs, damages, and expenses, 
 which the said G. C. Wilson, her executors, 
 administrators, or assigns, or the said 
 
 , or any of them, their, or any of their 
 executors, administrators, or assigns, or any 
 of them, shall be put unto or sustain by reason 
 of the non-payment thereof, or the recovering 
 or obtaining thereof, or otherwise relating 
 thereto ; and do and shall pay the surplus, if 
 any, of the monies to be raised by the ways 
 and means aforesaid, to the person or persons 
 next in remainder or reversion for the time 
 being immediately expectant upon the deter- 
 mination of the said term of two hundred 
 years, according to the limitations aforesaid.
 
 Appointment. 297 
 
 Provided always, and it is hereby agreed 
 and declared between and by the parties to 
 these presents, that immediately after all 
 the trusts hereinbefore declared of and con- 
 cerning the said term of two hundred years 
 shall in all respects be fully performed and 
 satisfied, or shall become unnecessary, or 
 incapable of taking effect, and the said 
 , and every of them, their 
 and every of their executors, administrators, 
 and assigns, shall be fully reimbursed and 
 satisfied all costs, charges, and expenses, if 
 any, to be occasioned by, or relating to, the 
 trusts hereby reposed in them as aforesaid, 
 the said term of two hundred years shall, 
 subject and without prejudice to any disposi- 
 tion which shall have been made of the pre- 
 mises comprised therein, or any of them, or 
 any part thereof, for the purposes aforesaid, 
 absolutely cease and determine. 
 
 Provided always, and it is hereby agreed 
 and declared between and by the parties to 
 these presents, that the uses, trusts, intents, 
 purposes, powers, provisoes, agreements, and 
 
 declarations,hereinbefore respectively limited 
 and declared, or referred to, of, or concerning 
 the said mauors or lordships, or reputed ma- 
 nors or lordships, hereditaments, and pre- 
 mises hereinbefore limited and appointed, or 
 expressed and intended so to be, shall respec- 
 tively take effect, in such manner in all re-
 
 290 Appointment. 
 
 spects, as if the uses, trusts, intents, purposes, 
 powers, provisoes, agreements, and declara- 
 tions, hereinbefore limited and declared ex- 
 pressly, and not by reference to the uses, 
 trusts, intents, purposes, powers, provisoes, 
 agreements, and declarations limited and de- 
 clared by the said indenture of appointment 
 and release, had been originally inserted and 
 contained in the same indenture ; to the intent, 
 and so that, the said uses, trusts, intents, pur- 
 poses, powers, provisoes, agreements, and de- 
 clarations hereinbefore limited and declared 
 expressly, and not by reference as aforesaid* 
 shall or may by virtue of or under the exer- 
 cise of any of the powers hereby respectively 
 limited, or created by reference to the 
 powers of leasing, and of sale and exchange 
 respectively, limited or created by the said 
 indenture of appointment and release, be 
 over-reached to the same extent, and in the 
 same manner, as if the said powers of leasing 
 and of sale and exchange respectively, had 
 been expressly limited by this present inden- 
 ture, and been made to over-reach all and 
 singular the other uses, trusts, intents, pur- 
 poses, powers, provisoes, agreements, and de- 
 clarations, hereinbefore limited and declared, 
 whether expressly or by reference as aforesaid ; 
 and to the intent, and so that, the trusts and 
 provisoes in these presents declared and con- 
 tained, by reference to the trusts and provisoes 
 in the said indenture of appointment and re-
 
 Appointment. 299 
 
 lease declared and contained, as to the appli- 
 cation of the monies to arise from any sale or 
 sales, or to be received for equality of ex- 
 change, under the said powers of sale and ex- 
 change, shall or may take effect to the same 
 extent, and in the same manner, as if the same 
 had been expressly declared and contained in 
 this present indenture, and had expressly been 
 made applicable to all the other uses, trusts, 
 intents, purposes, powers, provisoes, agree- 
 ments, and declarations, hereinbefore limited 
 and declared, whether expressly or by refer- 
 ence as aforesaid. 
 
 Provided always, and it is hereby declar- 
 ed, that the said trustees hereby nominated 
 and appointed, and every of them, and the 
 executors, administrators, and assigns of 
 them, and every of them, shall be charged 
 and chargeable respectively only for such 
 monies, as they shall respectively actually re- 
 ceive by virtue of the trusts hereby in them 
 reposed, notwithstanding his or their, or any 
 of their giving or signing, or joining in giving 
 or signing, any receipt or receipts for the 
 sake of conformity, and any one or more of 
 them shall not be answerable or accountable 
 for the other or others of them, or for the 
 acts, receipts, neglects, or defaults of the 
 other or others of them, but every of them 
 only for his and their own acts, receipts, neg- 
 lects, or defaults respectively ; and that any
 
 300 Appointment. 
 
 one or more of them shall not be answerable 
 or accountable for any banker or other per- 
 son, with whom, or in whose hands, any 
 part of the said trust monies shall or may be 
 deposited or lodged for safe custody, or other- 
 wise, in the execution of the trusts hereinbe- 
 fore mentioned ; and that they or any of them 
 shall not be answerable or accountable for 
 any misfortune, loss, or damage, which may 
 happen in the execution of the aforesaid trusts, 
 or in relation thereto, except the same shall 
 happen by or through their own wilful de- 
 faults respectively: and also that it shall and 
 may be lawful to and for them the said trus- 
 tees in these presents named, and every of 
 them, their, and every of their executors, ad- 
 ministrators, and assigns, by and out of the 
 monies, which shall come to their respective 
 hands by virtue of the trusts aforesaid, to re- 
 tain to, and reimburse himself and them- 
 selves respectively, and also to allow to his 
 and their co-trustee or co-trustees, all costs, 
 charges, damages, and expenses, which they 
 or any of them, shall or may suffer, sustain, or 
 be put unto, in, or about the execution of the 
 aforesaid trusts, or in relation thereunto. 
 
 And each of them the said Henry Thomp- 
 son (party hereto) and W. J. Thompson, so 
 far only as relates to his own acts and deeds, 
 and the acts and deeds of persons claiming, 
 or to claim under or in trust for him, doth
 
 Appointment. 301 
 
 for himself, his heirs, executors, and admi- 
 nistrators, covenant, promise, and agree with 
 and to the said , their execu- 
 
 tors, and administrators, by these presents, 
 in manner folio wing; (that it is to say,) that for 
 and notwithstanding any act, deed, matter, 
 or thing by them the said Henry Thompson 
 (party hereto) and William John Thompson, 
 or either of them, made, done, committed 
 or executed, or knowingly or willingly suffer- 
 ed to the contrary, the power or authority 
 herebeforeexercisedbythes^idHenryThomp- 
 son (party hereto) and William J. Thompson, 
 is well and effectually created by the herein- 
 before in part recited indenture of appoint- 
 ment and release, and the same, at the time 
 of the sealing and delivery of these presents, 
 is in full force and in no wise weakened, ex- 
 tinguished, suspended, or become void : and 
 that (for and notwithstanding any such act, 
 deed, matter, or thing whatsoever as afore- 
 said) they the said Henry Thompson (party 
 hereto) and W. J. Thompson now have in 
 themselves good right, full power, and lawful 
 and absolute authority, to direct, limit, and 
 appoint the said manors or lordships, &c. 
 and other hereditaments hereinbefore limited 
 and appointed, or expressed and intended so 
 to be, with the rights, members, and appur- 
 tenances, to the uses and in manner aforesaid, 
 according to the true intent and meaning of 
 these presents : and that the same manors,
 
 302 Appointment. 
 
 &c. and other hereditaments, with their 
 rights, members, and appurtenances, shall and 
 may from time to time, and at all times here- 
 after, go and remain, to the uses hereinbe- 
 fore limited and declared, and be peaceably 
 and quietly entered into and upon, and be 
 held, occupied, possessed, and enjoyed, and 
 the rents, issues, and profits thereof, and of 
 every part thereof, had, received, and taken 
 accordingly, without the lawful let, suit, 
 trouble, denial, eviction, interruption, claim, 
 or demand whatsoever, of or by them the 
 said H. Thompson party hereto, and W. J. 
 Thompson, or either of them, or either of 
 their heirs, or of or by any other person or 
 persons lawfully or equitably claiming, or to 
 claim, by, from, or under, or in trust for 
 him, them, or any of them, other than per- 
 sons claiming under, or in respect of, any of 
 the leases, or agreements for leases, under 
 which the same hereditaments are now held 
 by the tenants or occupiers thereof, or under 
 or in respect of any of the charges hereinbe- 
 fore mentioned, or referred to ; and that free 
 and clear, and freely and clearly, and abso- 
 lutely, acquitted, exonerated, released, and 
 for ever discharged, or otherwise, by the said 
 H.Thompson (party hereto) and W. J. Thom- 
 son, or one of them, or their, or one of their, 
 heirs, executors, or administrators, well and 
 sufficiently saved, defended, kept harmless, 
 and indemnified, of, from, and against all,
 
 Appointment. 303 
 
 and all manner of former estates, titles, 
 troubles, charges, debts, and incumbrances 
 whatsoever, either already had, made, exe- 
 cuted, occasioned, or suffered, or hereafter 
 to be had, made, executed, occasioned, or 
 suffered, by the said H. Thompson (party 
 hereto) and W.J.Thompson, or either .of them, 
 or either of their heirs, or by any person or 
 persons lawfully or equitably claiming, or to 
 claim by, from, or under, or in trust for 
 them, or any of them (other than the said 
 subsisting leases or agreements for leases and 
 the said charges hereinbefore referred to) : 
 And further, that they the said H.Thompson 
 (party hereto) and W. J. Thompson, and each 
 of them, and their respective heirs, and all 
 and every other persons or person having, or 
 claiming, or who shall or may have or claim, 
 any estate, right, title, interest, inheritance, 
 use, trust, property, claim, or demand what- 
 soever, either at law or in equity, of, in, to, 
 or out of the said manors, &c. and other here- 
 ditaments hereinbefore limited and appointed 
 or expressed and intended so to be, or any of 
 them, or any part thereof, by, from, or under, 
 or in trust for them, the said H. Thompson 
 (party hereto) and W.J. Thompson, or either 
 of them, (other than persons claiming under, 
 or in respect of, any of the said leases or 
 agreements for leases and charges hereinbefore 
 excepted) shall and will, from time to time, 
 and at all times hereafter, upon every reason-
 
 304 Appointment. 
 
 able request to be made for that purpose, by 
 and at the proper costs and charges in the 
 law of the said or the survivors or 
 
 survivor of them, or the executors or ad- 
 ministrators of such survivor, or of any per- 
 son or persons beneficially entitled under any 
 of the limitations hereinbefore contained, 
 make, do, acknowledge, levy, suffer, and ex- 
 ecute, or cause and procure to be made, done, 
 acknowledged, levied, suffered, and executed, 
 all and every such further and other lawful 
 and reasonable acts, deeds, things, devices, 
 conveyances, and assurances in the law 
 whatsoever, for the further, better, more 
 perfectly, and absolutely, limiting and as- 
 suring of the said manors, &c. and other 
 hereditaments hereinbefore limited and ap- 
 pointed, or expressed and intended so to be, 
 and every part thereof, with their appurte- 
 nances, to the uses hereinbefore limited and 
 declared or referred to, of, or concerning the 
 same ; as by the said or the 
 
 survivors or survivor of them, or the execu- 
 cutors, or administrators, of such survivor, or 
 any person or persons beneficially entitled 
 under any of the limitations hereinbefore con- 
 tained, or their, or any of their, counsel in 
 the law, shall be reasonably devised or ad- 
 vised and required. In witness, &c.
 
 305 
 
 NOTES. 
 
 NOTE A. 
 
 JBeside the general receipt expressed in the 
 body of the deed, it is usual to indorse a par- 
 ticular one; but this practice is of a modern 
 date, see 2 Atk. 478. 3 Atk. 112. It is a rule 
 of equity, that from the time of the contract 
 the vendor is considered, as to the estate, a 
 trustee for the purchaser; and the vendee, as 
 to the money, a trustee for the vendor. See 
 Green v. Smith, 1 Atk. 573. Pollexfen v. 
 Moor, 3 Atk. 273. note 2. Although a re- 
 ceipt for the purchase money be signed, yet if 
 the money be not actually paid, a court of 
 equity will give relief. See Ryle v. Haggie, 
 1 Walker and Jac. 234. 
 
 NOTE B. 
 
 Before the statute of frauds (29 Car. 2. c. 
 3), if a rent had been granted to A. his exe- 
 
 VOL. II. x
 
 306 Notes. 
 
 cutors and administrators, during the life of 
 B., and A. had afterwards died during the life 
 of B., the executor or administrator should 
 not have been a special occupant. 16 Vin. 71. 
 pi. 5. 73. pi. 3. (G.) Buller v. Cheverton. 
 But the 12th section of the act enacts, " That 
 " from henceforth any estate per auter vie 
 " shall be devisable by a will in writing, 
 " signed by the party so devising the same, 
 " or by some other person in his presence, and 
 " by his express directions, attested and sub- 
 " scribed in the presence of the devisor by 
 " three or more witnesses; and if no such de- 
 " vise thereof be made, the same shall be 
 " chargeable in the hands of the heir, if it 
 " shall come to him by reason of a special oc- 
 " cupancy, as assets by descent, as in case of 
 " lands in fee-simple; and in case there be 
 " no special occupant thereof, it shall go to 
 " the executors or administrators of the party 
 " that had the estate thereof by virtue of the 
 " grant, and shall be assets in their hands." 
 Since this statute, the executor or administra- 
 tor may be a special occupant* of a rent. See 
 
 a i. e. Quasi special oc- to pay the annuity to the 
 
 cupant; for in the nature of annuitant, his executors or 
 
 tilings there cannot be an administrators, with the 
 
 actual occupant of rent. usual powers of enforciug 
 
 See lord Eldon's argument payment by entry and dis- 
 
 in Ripley v. Waterworth, 7 tress, and with a term of 
 
 Ves. 425. The point, as to years for further securing it; 
 
 the special occupancy, can so that if the rent should de- 
 
 now scarcely arise. In termine as rent, it would 
 
 every modern grant of an be still payable as an annual 
 
 annuity, there is a covenant sum under the covenant and
 
 Notes. 307 
 
 Hawlinson v. Montague, cited note D.3 P. W. 
 264. 
 
 By the statute 14 Geo. 2. c. 20. s. 9. it is 
 enacted, " That estates per outer vie, in case 
 " there shall be no special occupant thereof, 
 " of which no devise shall have been made 
 " according to the said act for prevention of 
 " frauds and perjuries, or so much thereof as 
 " shall not have been so devised, shall go, be 
 " applied, and be distributed, in the same 
 " manner as the personal estate of the testa- 
 " tor or intestate." An estate per auler vie, 
 when limited to the executors, must be consi- 
 dered as personal estate 3 (see Williams v. 
 Jekyll, 2 Ves. 081. 683, 684, 4 Term Rep. 
 230. Ripley v. Waterworth, 7 Ves. 425. 
 Milner v. Harewood, 18 Ves. 273.), although 
 it is to be conveyed as a freehold estate b . See 
 Irish Chan. Rep. 290. per Lord Redesdale. 
 However, an estate per outer vie, when made 
 to the grantee and his heirs, is liable to debts 
 by specialty, and is within the statute of 
 
 term of years, and might, I v. Sandys case, 1 Schoal. 
 
 apprehend, be distrained 291. It would follow, that 
 
 for as such. See Allerton this kind of property, al- 
 
 v. Eden, Noy. 5. 6 Vin. though freehold, would not, 
 
 393. pi. 11. Moor, 179. pi. from mere intention, pass by 
 
 318. 185. pi. 331. a general devise of real es- 
 
 a i. e. For all purposes ; tate. 
 for in Williams v. Jekyll, b And it can only be de- 
 lord Hardwicke. 2 Ves. vised by a will attested by 
 681. considered it as a ehat- three witnesses. Per lord 
 tel for the purpose of con- Eldon in Ripley v. Water- 
 struction. See lord Redes- worth, 7 Ves. 451. 
 dale's argument in Campbell 
 
 x 2
 
 308 Notes. 
 
 fraudulent devises, 3 and 4 William and 
 Mary, c. 14. Westfaling v. Westfaling, 3 
 Atk. 4(50. 
 
 NOTE C. 
 
 The covenant or proviso enabling the 
 grantee to enter and hold the land, until the 
 arrears be satisfied, creates an interest, which 
 enables him to recover the possession in eject- 
 ment. It was formerly holden, that, in such 
 case, an actual entry was necessary in order 
 to support an ejectment; but it was settled 
 previously to the statute 4 Geo. 2. c. 28. that 
 the general confession was sufficient, without 
 the proof of an actual entry. See Gilb. Eject- 
 ment, 20,21. ed 1781. 
 
 It is generally true, that no person can 
 take advantage of a condition of entry, unless 
 there be a previous demand of the rent, or 
 unless it be expressly stipulated to the con- 
 trary. Co. Litt. 201. b. 5 Co. 40. b. 1 Roll, 
 Ab. 459. 
 
 NOTE D. 
 
 Upon the grant of a rent-charge the gran- 
 tea has the choice of one of two remedies for
 
 Notes. 309 
 
 the recovery of it, when in arrear; by distress, 
 and by writ of annuity; but he cannot make 
 use of both of them at the same time. Litt. 
 sec. 219. This double provision, however, 
 does not extend to rents reserved to the 
 grantor, nor to rents created by will, or 
 granted for equality of partition, or in lieu of 
 dower. Co. Litt. 144, a. b. 145, a. 1 Roll. 
 Ab. 226. 6 Co. 58. b. So if a man grant, 
 that if A. be not paid a certain yearly sum, 
 he may distrain for it in the manner of D. ; 
 this is a good rent-charge, and yet a writ of 
 annuity will not lie for the recovery of it. 
 Litt. s. 221. 
 
 NOTE E. 
 
 The grantor covenants for himself, his 
 heirs, executors, and administrators, not only 
 to pay the annuity, or rent-charge, when it 
 shall become due, but also a proportional part 
 of it from the time, which shall elapse be- 
 tween the last quarterly day of payment next 
 preceding the death of the grantor and the 
 day of his decease. This provision is ne- 
 cessary ; for if the grantor die before the 
 day of payment, the annuity and rent-charge 
 are determined; and equity will not make any 
 apportionment of it in favour of the grantee. 
 Pearly v. Smith. 3 Atk. 261. The payment 
 x 3
 
 310 Notes. 
 
 of an annuity or rent is similar in this case 
 to the application of dividends arising upon 
 money in the public funds, payable to one for 
 life; in which case, if the person, to whom 
 they are made payable, should die before the 
 day of payment, they cannot be apportioned. 
 Vide Rashleigh v. Masters, 3 B. C. R. 99. 
 101. Wilson v. Harman, 2 Ves. 672. Amb. 
 279. 
 
 By the common law, if tenant for life had 
 made a lease for years, which determined by 
 his death, and had died before the rent was 
 due, the rent was lost, both to the executors, 
 and those in remainder or reversion. Vide 2 
 P. W. 502. 1 P. W. 392. But the statute 11 
 Geo. 2. c. 19. s. 15. gives an action on the 
 case to the executors and administrators of 
 the tenant for life to recover from the under- 
 tenants such proportionable part of the rent, 
 as shall be incurred from the last day of pay- 
 ment to the decease of the tenant for life. 
 In the case of Paget v. Gee (Amb. Rep. 198.), 
 it was said, that, by an equitable construction, 
 the above statute extended to leases for years 
 made by tenants in tail, not warranted by the 
 statute 32 Hen. 8. c. 28. and also to leases for 
 years made by tenants for years determinable 
 on their own lives. But see Vernon v. Ver- 
 non, 2 Bro. Cha. Ca. 659. So as to compo- 
 sitions for tithes. Aynsley v. Wordsworth, 
 2 Ves. and B. 331. The statute does not
 
 Notes. 311 
 
 extend to leases made in exercise of a power. 
 See Strafford v. Wentworth, Prec. Cha. 557. 
 and the case ex parte Smyth, 1 Swanst. 337. 
 where the subject of appointment is very 
 fully stated and commented on. 
 
 NOTE F. 
 
 For acts, which do, or do not, amount to 
 a breach of the covenant against prior incum 
 brances, see Hamington and Rydear's case, 
 1 Leon. 92. 1 Keb. 427. Dyer, 139. a. 
 Ander. 236. 2 Vern. 45. 
 
 NOTE G. 
 
 It should seem, that the further assurance 
 must be at the costs of the persons to whom 
 the conveyance is made, unless it be provided 
 to the contrary. See 1 Buls. 90. And in 
 Heron v. Treyne, 2 L. Ray. 750. it was said, 
 that in a covenant to make further assurance 
 at the costs of B. notice of the kind of as- 
 surance must be given to him, before he 
 ought to tender the costs ; but otherwise, if 
 the covenant be to make a particular con- 
 veyance. 
 
 x 4
 
 312 Notes. 
 
 NOTE H. 
 
 It has been repeatedly determined, that 
 parol evidence cannot be admitted to prove, 
 that it was originally the agreement of the 
 parties, that the grantor should be at liberty 
 to re-purchase the annuity. Irnham v. Child, 
 1 Bro. 92. Portmore v. Morris, 2 Bro. 219. 
 Hare v. Sherwood, 3 Bro. 168. Clauses of re- 
 purchase have therefore become very frequent 
 in grants of annuities. 
 
 A clause of this kind in the grant of an 
 annuity is introduced upon the same prin- 
 ciple, that a vendor of an estate in fee-simple 
 stipulates with his vendee, that he may be at 
 liberty within a given time, and for a certain 
 price, to re-purchase the estate. See 1 Bridge 
 Con. 56. Amb. 19. An annuity, granted sub- 
 ject to a clause of re-purchase, differs from a 
 mortgage or security for money in these 
 points : in a mortgage the principal debt still 
 continues, until the equity of redemption be 
 foreclosed ; but upon the purchase of an an- 
 nuity, the principal is gone for ever, and con- 
 sequently if the re-purchase be made, the 
 money paid upon that occasion is not in dis- 
 charge of a debt, but as the consideration for 
 a new purchase. So a mortgage is the per- 
 sonal estate of the mortgagee, though it be
 
 Notes. 313 
 
 made to him in fee; but an annuity is con- 
 sidered as the real estate of the grantee, if it 
 have a freehold quality. 2 Atk. 497. 1 Ves. 
 403. 
 
 However, as courts of equity lean very 
 much against contracts of this kind, because 
 they tend to obtain more than legal interest, 
 they have been always anxious to find out 
 reasons, applicable to the particular case, for 
 construing sales of annuities as mere securi- 
 ties for money lent, and thereby to suffer a 
 redemption, as in the common case of a mort- 
 gage. To use the words of lord Hardwicke 
 (3 Atk. 270.), "There has been a long 
 " struggle between the equity of this court, 
 " and persons who have made it their endea- 
 " vour to find out schemes to get exorbitant 
 " interest, and to evade the statutes of usury." 
 In deciding therefore upon cases of this na- 
 ture, the court has generally considered them 
 in two points of view : first, Whether they 
 ought to be reckoned (considering all the cir- 
 cumstances) as absolute sales, or merely as 
 securities for money lent? Secondly, Admit- 
 ting them to be sales, whether there be any 
 grounds to relieve against them? See Law- 
 ley v. Hooper, 3 Atk. 278. and the cases 
 cited in the note to the last edition.
 
 314 Notes. 
 
 NOTE I. 
 
 If it be intended that the releasee should 
 take an estate in fee-simple or fee-tail, it is 
 absolutely necessary, that it should be ascer- 
 tained by words of limitation. Litt. s. 465. 
 
 It may not be unacceptable, in this place, 
 to offer a few observations upon the different 
 powers of the premises and the habendum, 
 when both limit distinct estates, and in such 
 limitation are repugnant to, and inconsistent 
 with, each other. 
 
 It maybe deemed an established rule, that 
 where no estate is expressed in the premises 
 (in which case the grantee has an estate for 
 life by implication), and an express estate is 
 limited by the habendum, the habendum shall 
 control the implied estate created by the pre- 
 mises. Co. Litt. 183. a. Thus, if land or 
 rent be granted to I. S. generally, habendum 
 to him for years, or at will; by the premises 
 I. S. takes an implied estate for life, but the 
 habendum abridges it into an express estate 
 for years, or at will. Ibid. 8 Co. 154. b. In 
 such a case, if the habendum be void, yet 
 the implied estate for life created by the pre- 
 mises shall not hold against the express es- 
 tate made by the habendum, though such ex-
 
 Notes. 315 
 
 press estate be altogether ineffectual. There- 
 fore, if land be given to A. generally, by the 
 premises, habendum after the death of the 
 grantor to A. in fee, in tail, or for life, in this 
 case the whole deed is void ; for there can be 
 no estate of freehold made to commence in 
 future*, and the implied estate for life cannot 
 make it a grant to begin presently in posses- 
 sion. 2 Co. 55. a. b. Cro. Eliz. 254, 255. 
 but if there be an express estate limited to A. 
 in fee by the premises, habendum after the 
 death of the grantor to A. in tail ; in this 
 case the habendum is void, and A. shall take 
 a present estate by the premises. 3 Lev. 339. 
 Carter v. Madgwick. Vide Dyer, 272. a. pi. 
 30. 2 Roll.Ab.66.pl. 4. Hob. 171. Moor, 
 881. pi. 1236. 
 
 So it is a rule, that where an express estate 
 is limited in the premises, and an estate is 
 created by the habendum in abridgment of, 
 inconsistent with, or repugnant to, the estate 
 limited in the premises, in such case the pre- 
 mises shall be good, and the habendum void. 
 Thus if lands be conveyed to I. S. and his 
 heirs, habendum to him for life ; I. S. has an 
 estate in fee by the premises, and the haben- 
 dum is void. 8 Co. 56. b. 2 Co. 24. a. Plowd. 
 152, 153. 2 Bac. Ab. 494. 
 
 We are to observe, with respect to this 
 rule, that whenever a ceremony or formality
 
 316 Notes. 
 
 is requisite to the perfection of the estate 
 limited in the premises, besides the delivery 
 of the deed (such as livery of seisin), and 
 no other ceremony is necessary to complete 
 the estate limited by the habendum, than the 
 mere delivery of the deed ; in all such cases 
 the estate created by the habendum shall 
 stand, and that limited by the premises shall 
 be void. Thus if A. grant an estate to B. 
 and his heirs, habendum to B. for years, the 
 habendum shall abridge the estate in fee 
 given by the premises into au estate for 
 years. 2 Co. 24. a. The reason of this con- 
 struction is, that by the delivery of the 
 deed the estate for years limited by the ha- 
 bendum is perfected ; whereas another pro- 
 cess (viz. livery of seisin) is required to vest 
 the estate of freehold. When B. has the 
 estate for years once vested in him, no sub- 
 sequent ceremony can divest it out of him. 
 This construction evidently depends upon 
 the actual priority of the delivery of the 
 deed ; and I conceive, that it will hold in the 
 case of a bargain and sale, because the inrol- 
 ment, like livery of seisin in the case of a 
 feoffment, will come too late to divest the 
 estate for years previously vested in B. by the 
 delivery of the deed. But the reasons of this 
 construction do not, I apprehend, apply to 
 the conveyance by lease and release; for if a 
 man convey by lease and release to B. in fee, 
 habendum to him for years, the fee, as well
 
 Notes. .317 
 
 as the term of years, may vest in B. by the 
 mere delivery of the deed ; and as the law 
 says, that every grant shall be taken most 
 strongly against the grantor, B. will have an 
 estate in fee by the premises, and the haben- 
 dum will be void, according to the rule just 
 mentioned. So upon the same principle, if 
 a grant had been made of a rent in esse, or a 
 seignory, to I. S. and his heirs, habendum to 
 him for years, or for life ; although in this 
 case another ceremony was formerly requisite, 
 besides the delivery of the deed, viz. attorn- 
 ment, yet as that ceremony was as necessary 
 upon the grant of a rent in esse, or seignory, 
 to create an estate for years or for life, as an 
 estate in fee, the habendum in such case was 
 void. 2 Co. 24. a. 
 
 This rule, that where the habendum is re- 
 pugnant to, or inconsistent with, the express 
 estate limited in the premises, the habendum 
 is void, was evidently established in favour 
 of the grantee, and to the disadvantage 
 of the grantor ; for where an express estate 
 in fee-simple is given by the premises, the 
 grantor shall not be allowed to abridge it by 
 the habendum into a mere estate for years or 
 for life. But the reasons of the above rule 
 fail, whenever the grantee's interest is enlarged 
 by the habendum, even where there is an ex- 
 press estate limited to him by the premises. 
 Therefore what has been advanced concerning
 
 31 a Notes. 
 
 the above rule maybe corrected with this ob- 
 servation, that the habendum, when incon- 
 sistent with, or repugnant to, the premises, 
 can never abridge an express estate given by 
 the latter to the grantee, whenever there is 
 the same ceremony required to perfect the 
 estate limited in the premises, and that created 
 by the habendum ; but that the habendum 
 may enlarge the estate limited in the premises 
 under similar circumstances. Thus if an es- 
 tate be granted to A. for life, habendum to 
 him in fee, the same formality being requisite 
 to create both estates, the habendum shall 
 enlarge the estate for life into an estate in 
 fee. Co. Litt. 299. a. 
 
 It is clear also, that the above doctrine in 
 favour of the grantee depends chiefly upon 
 the inconsistency and repugnancy of the ha- 
 bendum. Thus to put the same case again, 
 an estate is given to A. and his heirs, ha- 
 bendum to him for life : this habendum is to- 
 tally void, and A. has a fee-simple by the 
 premises : the former creates an estate of in- 
 heritance, whilst the habendum limits it to 
 an estate for life ; the habendum therefore is 
 quite inconsistent with, and repugnant to, the 
 premises. But though the grantor be not al- 
 lowed entirely to alter the nature of the estate 
 of the grantee, yet he is suffered to qualify 
 it, if there be no inconsistency in so doing. 
 Therefore if a man grant lands to another
 
 Notes. 319 
 
 and his heirs, habendum to him and the heirs 
 of his body ; in such case the habendum qua- 
 lifies the premises, and the grantee has an es- 
 tate tail, with a fee-simple expectant thereon. 
 Co. Litt. 21. a. Turnman v. Cooper, Cro. 
 Jac. 476. (Sed contra, as to the expectant 
 fee thereon, Perk. s. 170. 8 Co. 154. b.) 
 The word heirs is extensive, and may relate 
 to heirs special, as well as general ; and the 
 grantor by the habendum signifies what heirs 
 he intended to describe. Upon the same 
 principle, if a conveyance be made to A. and 
 his heirs, habendum to him and his heirs du- 
 ring the lives of B. C. and D. ; the word 
 heirs, in this case, in the premises is as appli- 
 cable to a descendible estate of freehold, as 
 to a fee-simple ; the habendum therefore ex- 
 plains the premises ; it declares, that the word 
 heirs in the premises was merely applicable 
 to an estate of freehold descendible to heirs 
 during the lives of B. C. and D. T. Jones, 4. 
 So too if lands be granted to A. and the heirs 
 of his body, habendum to him in fee; A. 
 has by the premises an estate tail, and by the 
 habendum a fee-simple expectant thereon. 
 8 Co. 154. b. 
 
 The habendum is sometimes used to ex- 
 plain the nature of the estates, which grantees 
 are intended to take. Thus if a feoffment 
 be made to A. and B. of twenty acres, haben- 
 dum, as to one moiety, to A., habendum, as
 
 320 Notes. 
 
 to the other moiety, to B. ; by the premises 
 A. and B. take a joint estate, and by the ha- 
 bendum they are tenants in common; and 
 yet the habendum is good. Co. Litt. 183. b. 
 190. b. The habendum, in this instance, is 
 not repugnant to the premises, because it 
 makes no division of that undivided posses- 
 sion, which is given by the latter. However, 
 if the premises limit twenty acres to A. and 
 B., and the habendum expressly give ten 
 acres to A. and the other ten acres to B.,the 
 habendum is void ; for it makes an express 
 division of the acres ; which is inconsistent 
 with the undivided possession limited by the 
 premises. 1 P. W. 19. 
 
 So if a lease be made to two, habendum 
 to the one for life, remainder to the other for 
 life, this habendum is good. 2 Co. 55. b« 
 Co. Litt. 183. b. Dowse's case. Cro. El. 25. 
 89. 2 Roll. Ab. 65. 
 
 A grant was made to A., habendum to 
 him, B., and C, pro termino vitce eorum, et 
 alterius eorum successive diutius viventium ; it 
 was holden, that the habendum was void : for 
 neither B. nor C. could take any thing as 
 lessees in possession ; because they were not 
 parties to the deed ; nor were they named in 
 the premises ; nor could they take jointly by 
 way of remainder ; because the limitation 
 was to them successive ; neither could they
 
 Notes. 321 
 
 take in succession, because it did not appear, 
 who should take first. Hob. 313. Winds- 
 more v. Hobart. 
 
 NOTE K. 
 
 The mode of preventing dower, intro- 
 duced in this precedent, appears to have been 
 suggested by the late Mr. Fearne(vide Cont. 
 Remainders, 509. 4 ed.), in consequence of 
 the principle established in Duncombe v. 
 Duncombe, 3 Lev. 437. 
 
 For the different methods of barring a 
 woman of her dower, see Mr. Butler's notes, 
 Co. Litt. 216. a. and under fol. 381. b. 
 
 NOTE L. 
 
 The grantor covenants, 1st, That, not- 
 withstanding any act done by him or his an- 
 cestors, he is seised in fee. 2dly, That, not- 
 withstanding any such act, he has a good 
 right to grant, &c. 3dly, That the grantee 
 may peaceably enjoy the premises without 
 any interruption, &c. by the grantor, or by 
 any other person or persons claiming by or 
 under him or his ancestors. 4thly, That the 
 premises are free from all incumbrances, &c. 
 
 VOL. II. y
 
 322 Notes. 
 
 occasioned by him or his ancestors, or any 
 claiming under them. The two first cove- 
 nants may be considered synonymous (Brown- 
 ing v. Wright, 2 Bos. and Puller, 13.); but 
 the two latter are distinct; and therefore qua- 
 lifying words in the beginning of the first 
 covenant, will not extend to the third. See 
 Howell v. Richards, 11 East. 633. 
 
 In the case of Nervin v. Muns, 3 Lev. 46. 
 a grantor covenanted, 1st, Thatnotwithstand- 
 ing any act done by him to the contrary, he 
 was seised in fee-simple, &c. 2dly, That he 
 had a good power and lawful authority to 
 sell. 3dly, That the lands were free from any 
 incumbrances made by him, his father, or his 
 grandfather. 4thly, That the grantee should 
 enjoy against all persons claiming under him, 
 his father, or his grandfather. The question 
 was, whether the words in the first covenant, 
 ?iottvithstanding any act done by him, extended 
 to the second covenant? For if they did, 
 then there was no breach of covenant. It 
 was admitted by the whole court, that all 
 these covenants were several and distinct; 
 and three of the judges held, against the opi- 
 nion of North, C. J., that, though these co- 
 venants were distinct, yet the two first were 
 synonymous, and of the same nature; for if 
 a man were seised in fee, he certainly had 
 good right and full power to sell : and it 
 could not be intended, that when the grantor
 
 Notes. 323 
 
 covenanted against his own acts, he should 
 immediately after, by a covenant of the same 
 nature, covenant against the acts of the whole 
 world. 
 
 It is however clear, that where covenants 
 are several, and at the same time are of dif- 
 ferent natures, and concern different things, 
 restrictive words in one covenant will not 
 qualify or restrain the generality of the other. 
 This point is explained in the case of Gains- 
 ford v. Griffith, 1 Saund. 58. 2 Keb. 201. 
 213. 1 Sid. 328. A lessor covenanted, that 
 the lease in question was a good, certain, and 
 indefeasible lease in the law, and should so 
 remain for the residue of the term ; and that 
 the lessee should quietly and peaceably enjoy 
 and hold the premises during the term, with- 
 out the lawful let, suit, trouble, or interrup- 
 tion of the lessor, his executors or adminis- 
 trators ; and that the lessee should be saved 
 harmless, and indemnified from all incum- 
 brances, made, committed, suffered, or done 
 by the lessor: the question was, whether the 
 restrictive words at the end of the last cove- 
 nant qualified and explained the first ? and it 
 was holden, that they were distinct sentences, 
 and of different natures ; and therefore the 
 words at the end of the last sentence, which 
 qualified the covenant against incumbrances 
 to such incumbrances as were committed by 
 the lessor, could not extend to the former 
 v 2
 
 ;)24 Notes. 
 
 covenant ; that the lease was a good, inde- 
 feasible lease, &c. 
 
 So, where a man covenanted, that he was 
 seised of a certain manor in fee, notwith- 
 standing any act done by him or any of his 
 ancestors ; and that no reversion or remainder 
 was in the king, or any other; and that the 
 said manor was of the annual value of three 
 hundred pounds per annum ; it was holden, 
 that these covenants were absolute and dis- 
 tinct, and that the restrictive words in the 
 first covenant could not qualify the last sen- 
 tence respecting the value. Cray ford v. Cray- 
 ford, Cro. Car. 106. The same point was 
 determined in the case of Hughes v. Ben net, 
 Cro. Car. 495. 
 
 However, when several sentences make 
 but one entire covenant, restrictive words in 
 one sentence may be extended to, and qualify, 
 the other sentences ; provided the sense will 
 admit of it. Thus, where a termor assigned 
 his term, and covenanted, that he had not 
 made any grant, or done any thing, by means 
 whereof the grant or assignment could in any 
 manner be impaired, hindered, or frustrated ; 
 but that the assignee should enjoy without 
 any impediment or disturbance by him or 
 any other person : it was adjudged, that this 
 was but one sentence, and that the express 
 restrictive words in the beginning of the co-
 
 Notes. 325 
 
 venant restrained and qualified the generality 
 of the subsequent words, by any other person. 
 Dyer, 240. a b. pi. 43. Gervis v. Pead, Cro. 
 El. 615. 
 
 In the case ofTrenchard v.Hoskins (Litt. 
 Rep. 62. to 69. 203. to 211.), a grantor cove- 
 nanted that he was seised in fee, and that he 
 had a good and lawful authority to sell, and 
 that there was no reversion or remainder in 
 the crown, notwithstanding any act done by 
 him. The question was, whether the last re- 
 strictive words explained the preceding cove- 
 nants, that he was seised in fee, &c. ? It was 
 determined in the Common Pleas, that these 
 were three distinct and several covenants, and 
 therefore the restrictive words in the last sen- 
 tence could not extend to the first. But, 
 upon a writ of error in the King's Bench, this 
 judgment was reversed (2 Keb. 201.), though 
 that reversal was never entered. 1 Sid. 328. 
 The opinion of the Court of King's Bench, 
 that the three sentences in the above case 
 made but one entire covenant, seems to be 
 over-ruled by the subsequent decision in the 
 before-cited case of Nervin v. Muns. 
 
 It should seem, that an express covenant 
 may qualify and restrain the operation of a 
 preceding implied covenant. Thus, any ex- 
 press covenant on the part of a grantor will 
 qualify the generality of the implied covenant, 
 
 y 3
 
 326 Notes. 
 
 or warranty, produced by the word grant, 
 when that word is used to pass a chattel in- 
 terest ; for it seems, with respect to a free- 
 hold, or inheritance, that that word does not 
 import any warranty or implied covenant. 
 See But. Co. Litt. 384. a. n. 1. 1 Ves. 101. 
 Vaugh. 126. 4 Co. 80. b. Noke's case. It 
 must be observed, that, in grants of estates 
 of freehold, the word give creates an implied 
 warranty, the generality of which cannot be 
 controlled by any express covenant. Co. 
 Litt. 384. a. Litt. Rep. 64. So, if a man 
 make a lease for years rendering rent, and 
 add express warranty ; the express warranty 
 does not take away the warranty in law ; for 
 the lessee has his election to vouch by force 
 of either of them. 4 Co. 81. a. Co. Litt. 
 384. a.
 
 INDEX. 
 
 ADVANCEMENT, 
 
 what, 1 vol. 325, 326. 
 
 ADVOWSON, 2 vol. 30. 
 
 ALIEN, 1 vol. 60. 339. (note.) 289. 
 
 ANNUITY, 2 vol. 32. 99. 
 
 how a re-purchase differs from a redemption, 2 vol. 312. note H. 
 
 or rent-charge, the form of a grant of, during the life of the grantor, 
 
 2 vol. 99. 
 remedies to recover, 2 vol. 308. note B. 
 
 APPOINTMENT. (Vide POWERS.) 
 
 how it differs from a declaration of a use, 2 vol. 71. 
 
 not considered as an independent conveyance, 2 vol. 71. 
 
 when a person may appoint or convey as legal owner, 2 vol. 72. 
 
 what estates it may limit, 2 vol. 77. 
 
 when it has relation to the conveyance by which it is created, 2 vol. 74. 
 
 requisites to be observed in deeds of, 2 vol. 74. 
 
 precedents of, 2 vol. 222. 232. 276. 
 
 APPORTIONMENT, note E. 2 vol. 309, 310. 
 
 ATTORNMENT, 2 vol. 33, &c. 
 
 BARGAIN and SALE. 
 
 description of, 2 vol. 43. 
 consideration of, 2 vol. 46. 
 
 cannot be made to the use of any but the bargainee, 2 vol. 52. 
 no future or springing use can be limited out of the estate of the bar- 
 gainor, 2 vol. 51. 
 a power to make leases cannot be reserved to a bargainee for life, ibid, 
 operation of it when made by a tenant in tail, 2 vol. 54. 
 does not produce a discontinuance, ibid, 
 the possession acquired by it, 2 vol. 45. • 
 does not destroy contingent remainders, 2 vol. 54. 
 what relation the inrolment bears to it, 2 vol. ibid, 
 the form of it, to make a tenant to the praecipe, 2 vol. 128. 
 who may convey by it, 2 vol. 50. 
 by what words it may be made, 2 vol. 49. 
 what may be conveyed by it, 2 vol. 50. 
 for years does not require inrolment, 2 vol. 62.
 
 INDEX. 
 
 CESTUIQUE USE, 
 
 might have aliened the use, 1 vol. 63. 
 
 could not devise the land by 1 Rich. 3. 1 vol. 49. 
 
 had neither jus in re, nor jus ad rem, 1 vol. 66. 
 
 might have been sworn upon an inquest, 1 vol. 67. 
 
 might have brought debt for rent, but could not avow, 1 vol. 49. 
 
 wife of, not dowable, 1 vol. 66. 
 
 who might have been, 1 vol. 59. > 
 
 situation of, and his feoffees, since 27 Hen. 8. 1 vol. 119. 
 
 estate of, subject to all the incidents to which a legal estate is liable, 
 
 1 vol. ibid, 
 entitled to collateral rights and covenants running with the land, 1 vol. 120. 
 
 CESTUIQUE TRUST, 
 
 of a term, whether he might convey the legal estate by a feoffment 
 
 pursuant to 1 Rich. 3. 1 vol. 32 to 48. 
 his power of alienation, 1 vol. 342, &c. 
 no conveyance by him can work a forfeiture of the legal estate in the 
 
 trustee, 1 vol. 348. 
 conveyance by cestuique trust, being an equitable tenant in fee-simple, in 
 
 tail or for life, or being a married woman, 1 vol. 343 to 348. 
 
 CHOSES IN ACTION, 
 
 not grantableby the common law, 2 vol. 32. 
 grantable in equity, ibid. 
 
 COMMON, 2 vol. 26, &c. 
 
 CONVEYANCE, 
 
 by way of use, how it differs from and agrees with a conveyance at common 
 
 law, 1 vol. 121 to 205. 
 by cestuique trust being tenant in tail, or a married woman, 343 to 348. 
 
 CONDITIONAL LIMITATIONS, 
 what, 1 vol. 150. 
 words of, 1 vol. 151. 
 
 CONSIDERATION. (See BARGAIN and SALE, and COVENANT TO 
 STAND SEISED.) 
 
 of tenure, 1 vol. 10. 
 
 to raise uses on a feoffment, fine, recovery, lease and release, and grant, 
 1 vol. 61. 
 
 CONVERSION 
 
 of real into personal, and personal into real estate, 1 vol. 298. 
 
 COPYHOLD, 
 
 whether a use may be limited upon copyhold lands, 1 vol. 241. 
 devise by cestuique trust of, 1 vol. 343 note. 
 
 CORRODY, 2 vol. 31. 
 
 COVENANT, 
 
 words of, may create a grant, 2 vol. 39.
 
 INDEX. 
 
 COVENANT continued. 
 
 to enter and hold, 2 vol. 308. 
 
 to pay annuity, ibid. 106. 313. note E. 
 
 by bargainee for a valuable consideration sufficient to change the use, 2 vol. 53. 
 
 COVENANT TO STAND SEISED, 
 
 what, 2 vol. 79. 
 
 on what estate it may operate, 2 vol. 83. 
 consideration of, 2 vol. 80. 
 by what words created, 2 vol. 80. 
 
 CURTESY, 
 
 not of a use, 1 vol. 66. 
 of a trust, 1 vol. 288. 
 not out of the estate of the trustee, 1 vol. 351. 
 
 DEBT. (Vide CESTUIQUE USE.) 
 
 DECLARATION OF USES, 1 vol. 210. 
 who may declare uses, 1 vol. 213. 
 what a good declaration of uses, 1 vol. 219. 
 
 differences between a declaration of uses and an appointment, 2 vol. 71. 
 what a good declaration of a trust, 1 vol. 315, &c. 
 in what cases the first declaration of uses shall be controuled by a second 
 
 1 vol. 219, &c. ' 
 when it breaks the descent, 1 vol. 230. 
 
 DEEDS. (Vide DECLARATION OF USES.) 
 precedent and subsequent, 1 vol.219, &c. 
 
 DESCENT, 
 
 of a trust, 1 vol. 270. 
 of a use, 1 vol. 64. 
 
 DEVISE, 
 
 by cestuique trust of a copyhold, 1 vol. 343. 
 
 whether the statute 27 H. 8. extends to devises to uses 1 vol «4i 
 
 in trust to permit A. to receive the profits, whether it is a use executed by the 
 
 statute, 1 vol. 244. J 
 
 whether a devise in trust to pay over the profits is executed, 1 vol. ibid. 
 
 DISSEISIN. (Vide FORFEITURE.) 
 
 how created, 2 vol. 14. 
 
 an estate created by it sufficient to support a fine, 2 vol. 15. 
 
 an estate created by it not sufficient to support a' recovery 2 vol 17 
 
 actual, and at the election of the parties, the difference between them 
 
 2 vol.18. ' 
 
 DOWER, 
 
 not of a use, 1 vol. 66. 
 
 not of a trust, 1 vol. 288. 
 
 not out of the estate of the trustee, 1 vol. 351. 
 
 different modes used by purchasers to prevent it, 2 vol. 321. 
 
 if bargainee dies before enrolment his wife shall have dower,' 2 vol. 55.
 
 INDEX. 
 
 ENROLMENT. (Vide BARGAIN and SALE, and DOWER.) 
 
 what bargains and sales are directed to be enrolled, 2 vol. 54, 55, &c. 
 
 ENTAIL. (Vide TRUSTS.) 
 
 ENTRY, 
 
 whether a right of it was in feoffees after a feoffment or fine by cestuique use 
 
 pursuant to 1 Rich. 3. 1 vol. 24. 
 right of it remains in feoffees since the statute 27 H. 8. to vest a contingent 
 
 or future use, 1 vol. 235. 
 necessary to a lease at common law, 2 vol.61. 
 
 not necessary to a bargain and sale, except to bring trespass, 2 vol. 46. 
 possession by operation of the statute of uses, how it differs from an actual 
 entry, 2 vol. 46. 
 
 EQUITY. (Vide USES and TRUSTS, and LIMITATIONS.) 
 
 EQUITY OF REDEMPTION, 1 vol. 267. 275. 283. 
 
 ESTATES TAIL. (Vide TRUSTS.) 
 
 ESTATES PUR AUTER VIE, 2 vol. 303, &c. 
 
 ESCHEAT. (Vide USES and TRUSTS.) 
 
 EXCHANGE, 2 vol. 69. 
 
 EXECUTORY DEVISE. 
 
 how agrees with a shifting use, 1 vol. 142, 143. 145. 
 (Vide USE, Springing or Shifting.) 
 
 EXTENT. 
 
 trusts subject to extents from the crown, l vol. 277. 
 
 FATHER and SON. 
 
 what shall be deemed an advancement for the son, and not a trust for the 
 father, 1 vol. 325, 326. 
 
 FEE UPON A FEE. (Vide USES Shifting.) 
 
 FEOFFEES, 
 
 might have conveyed the lands for a valuable consideration, and without 
 
 notice, 1 vol. 58. 
 the statute 1 Rich. 3. did not take away their power, 1 vol. 23. 
 performed the feudal duties, and their estate subject to dower, curtesy, 
 
 wardship, relief, &c. forfeitable for treason and felony, and they 
 
 might have brought actions, &c. 1 vol. 68. 
 have no interest in the lands since the 27 H. 8. 1 vol. 119. 
 
 FEOFFMENT. (Vide POWERS.; 
 
 by cestuique use after 1 R. 3. 1 vol. 23. 
 consideration of, 1 vol. 61.
 
 INDEX. 
 
 FEOFFMENT continued. 
 
 by cestuique trust and his trustee, 1 vol. 370. 
 
 antiquity of, 2 vol. 1. 
 
 definition of, ibid. 
 
 charters of, when introduced, 2 vol. 3. 
 
 of several villages in one county, 2 vol.7. 
 
 in different counties, ibid. 
 
 feoffor should have actual possession, 2 vol. 9. 
 
 cannot bar powers collateral, 2 vol. 14. 
 
 bars all future uses and rights, 2 vol. 14. 
 
 bars the feoffor of all interest in the lands, and the benefit of a con- 
 dition broken, 2 vol. 14. 
 
 by tenant for years,~elegit, statute-merchant or staple, copybolder, dis- 
 seisor, abator, or intrudor, creates a freehold by disseisin, 2 vol. 
 14, &c. 
 
 operations of it when made by a termor for 1000 years, 2 vol. 22, &c. 
 
 bars contingent remainders, 2 vol. 11. 
 
 the form of it, 2 vol. 85. 89. 
 
 incorporeal property will not pass by it unless the word grant is inserted, 
 2 vol. 40. 
 
 (Vide USE, TRUST, POWERS, &c.) 
 
 FELONY. (Vide USES, TRUSTS.) 
 
 FINE, 
 
 by cestuique use, 1 vol. 29. 
 
 consideration of, 1 vol. 62. 
 
 by cestuique trust, 287. 291. 343, 344. 
 
 cannot bar powers collateral, 1 vol. 173, 174. 
 
 cannot create a disseisin, 2 vol. 15. 
 
 bars contingent remainders, 2 vol. 12. 
 
 (Vide POWERS, USES, TRUSTS, GRANTS, &c.) 
 
 FORFEITURE, 
 
 whether created by a feoffment by cestuique trust of a term, 1 vol. 31, &c. 
 the steps necessary to be taken in order to prevent it when made by a 
 termor for years, &c. 1 vol. 32. 2 vol. 22. 
 
 FREEHOLD, 
 
 no estate of, could be made to commence in fuluro by the common 
 
 law, 1 vol. 136. 2 vol. 7. 
 (Vide DISSEISIN.) 
 
 GRANT, 
 
 consideration of, 1 vol. 63. 
 
 description of, 2 vol. 25. 
 
 what things are allowed to pass by way of, 2 vol. 26, &c. 
 
 what things are not grantable, 2 vol. 31, 32. 
 
 by what operative words incorporeal property will pass, 2 vol. 39. 
 
 words of covenant will create a grant, 2 vol. 39. 
 
 form of a grant of an annuity or rent-charge for the life of the grantor, 
 
 2 vol. 99. 
 (Vide COVENANT, ANNUITY, &c.)
 
 INDEX. 
 
 GUARDIAN, 1 vol. 835. 
 (Vide TRUSTS.) 
 
 HABENDUM, 
 
 when it shall controul the premises, and so e converso, 2 vol. 314. note 1. 
 
 HEIRS. (Vide USES, TRUSTS, LIMITATIONS, &c.) 
 
 IMPLICATION. (Vide USES resulting, TRUSTS resulting.) 
 
 INFANT. (Vide DECLARATION of USES.) 
 
 INQUEST, 
 
 cestuique use might have been sworn upon, 1 vol. 67. 
 
 INTENT. (Vide USES resulting.) 
 
 JOINT-TENANCY, 1 vol. 135. 
 
 LEASE and RELEASE. (Vide TABLE of CONTENTS.) 
 
 LEGAL ESTATE at COMMON LAW, 1 vol. 91, &c. 155, &c. 
 
 LESSOR and LESSEE, 
 
 privity between them, 2 vol. 60. 
 
 LIMITATION, 
 
 how and in what respect the limitation and creation of estates by way 
 of use agree with and differ from the rules of the common law, 
 1 vol. 121, &c. 
 
 the same words necessary to create an estate in fee-simple, fee-tail, &c. 
 on a conveyance to uses since the statute, as on a common law con- 
 veyance, 1 vol. 123, &c. 
 
 conditional, the difference between that, and a condition and a springing or 
 shifting use, 1 vol. 150. 
 
 words of, 1 vol. 151. 
 
 of trust estates, 1 vol. 269. 
 
 LIMITATIONS, 
 
 statutes of, ibid. 280, &c. 
 
 LIVERY and SEISIN, 
 what, 2 vol. 3. 
 in deed, 2 vol. 4. 
 by attorney, 2 vol. 5. 
 within view or in law, ibid. 6. 
 of several villages in one county, &c. 7. 
 cannot be made without the consent of the tenants, ibid. 9. 
 
 MERGER, lvol. 304, &c. 
 
 NAKED POSSESSION, 2 vol. 15. 
 
 PAROL AVERMENT, 1 vol. 107. 322, &c.
 
 INDEX. 
 
 PARTITION. (Form of) 2 vol. 208. 
 
 PERPETUITY, 1 vol. 194, &c. 
 
 PERSONAL ESTATE. (Vide CONVERSION.) 
 
 POWERS. (Vide APPOINTMENTS.) 1 vol. 154. 
 
 cannot arise upon a legal estate at common law, 1.55, &c. 
 
 collateral, 1 vol. 174, &c. 
 
 in gross, 1 vol. 169, &c. 
 
 in gross are barrable by a feoffment, fine, or recovery, but not by a bargain 
 
 and sale, lease and release, &c. 1 vol. 172, &c. 
 appendant, 1 vol. 169. 
 appendant, are barrable by fine, feoffment, recovery, lease and release, 
 
 and bargain and sale, 1 vol. 169, &c. 
 priority of powers, 1 vol. 164, &c. 
 
 PREMISES, 
 
 the different powers of it and the habendum, 2 vol. 314. note 1. 
 
 PRIVITY, 
 
 between lessor and lessee, 2 vol. 23- 60. 
 between mortgagor and mortgagee, ibid. 23. 
 
 REAL ESTATE. (See CONVERSION.) 
 
 RECOVERY, 
 
 by cestuique use, 1 vol. 29. 
 by cestuique trust, 1 vol. 342, &c. 
 
 a bargain and sale to make a tenant to the praecipe for the purpose^ of 
 suffering a recovery, 2 vol. 128. 
 
 RECEIPT, 2 vol.303, note A. 
 
 REDEMPTION, 
 
 how it differs from a repurchase, 2 vol. 312. note H. 
 from a trust, 1 vol. 267. 
 
 RELEASE. (Vide LEASE and RELEASE.) 
 
 REMAINDER, 
 
 what, 1 vol. 144. 149. 
 
 difference between it, and a reversion, 1 vol. 134. 
 
 contingent, trustees guilty of a breach of trust in destroying it, 1 vol. 370. 
 
 contingent, should have a freehold to support it, 1 vol. 136. 
 
 contingent, barred by a feoffment, fine, or recovery, 2 vol. 11, 12. 
 
 contingent, not barred by a lease and release, bargain and sale, or grant, 12. 
 
 vested, how transferred, 2 vol. 29. 
 
 contingent, how transferred, ibid. 
 
 REMITTER, 
 
 what alteration the doctrine of uses has made therein, 1 vol. 205.
 
 INDEX. 
 
 RENTS, 
 
 conveyed to uses, and executed by the statute, 1 vol. 108. 
 
 how created and granted, 2 vol. 28. 
 
 arrears of them, how recoverable, 2 vol. 309. 
 
 whether apportionable, ibid. 
 
 RE-PURCHASE, 
 
 clause of, (Vide ANNUITY.) 
 
 REVERSION, 1 vol. 133. 
 
 how granted, 2 vol. 29. 
 
 REVOCATION. (Vide POWERS.) 
 
 SEISIN, 1 vol. 109. 
 
 must be of as great an estate as the use to be derived out of it, 1 vol. 109. 
 possibility of, ibid. 110, &c. 146, &c. 231, &c. 
 
 SURRENDER, 
 
 of incorporeal property will pass without the word grant, 2 vol. 41. 
 to uses, 1 vol. 114 in note. 
 
 TENANT IN TAIL, 
 
 whether he might stand seised to us«s, 1 vol. 90, &c. 
 
 TENURE, 
 
 consideration of, 1 vol. 10. 31, &c. 
 
 TERMS FOR YEARS, 
 
 whether a use might have been limited thereon before 1 R. 3. 1 vol. 32, &c. 
 attendant upon the inheritance, ibid. 292. 
 
 TREASON. (Vide USES, TRUSTS.) 
 
 TRUSTS, 
 
 introduction of, 1 vol. 7. 
 
 distinguished from uses before the statute of uses, ibid. 2, Sec. 30, &c. 
 not executed by the statute, ibid. 231, &c. 
 executed by the statute, 87, &c. 97, &c. 
 definition and several kinds of modern trusts, 267. 
 difference between a trust and equity of redemption, ibid. 267. 
 limitations of, ibid. 269. 
 descent of, ibid. 270. 
 alienable and devisable, ibid. 271. 
 execution may issue upon a trust estate, ibid. 272. 
 assets, ibid. 276- 
 
 extendable for a debt to the crown, ibid. 277. 
 forfeited for treason, ibid. 278. 
 
 equitable estates considered as legal estates in the construction of acts of par- 
 liament, ibid. 279. 
 Tenant by curtesy of, ibid. 279. 
 
 dower, ibid. 288. 
 escheat, ibid. 288. 
 executed and executory, ibid. 310, &c.
 
 INDEX. 
 
 TRUSTS continued. 
 
 declaration of, ibid. 315. 
 resulting and constructive, ibid. 319. 
 upon notice, ibid. 320. 
 where the estate is purchased in the name of one, and the conside- 
 ration paid by another, ibid, 
 where the express declaration extends to a part of the land or 
 interest, ibid. 322, &c. 
 arising from the renewal of a lease by a trustee, guardian, or tenant for life, 
 ibid. 335, &c. 
 
 TRUSTEE, 
 
 who may be, 1 vol. 349, &c. 
 
 of incumbrances of, and forfeitures by, him, ibid. 351. 
 
 conveyances by incapacitated trustees, 1 vol. 354. 
 
 statute 7 Anne, cap. 19. and construction upon it, ibid. 354. 
 
 statutes 39, 40 Geo. 3. 47 Geo. 3. sess. 2. c. 24. 4 Geo. 2. c. 10. 
 ibid. 356. 
 
 by trustees not incapacitated, 
 
 by will, ibid. 358. 
 
 by deed, ibid. 361. 
 may sue in his own name, 1 vol. 341. 364. 
 his estate in equity not subject to be forfeited for felony, nor subject to dower 
 
 or curtesy, 1 vol. 351, &c. 
 alienations by, 1 vol. 350. 
 
 cannot change the nature of the trust estate, ibid. 364. 
 
 cannot hurt cestuique trust by omitting to do what he ought to do, ibid. 365. 
 his office is honorary, ibid. 373. 
 
 not allowed for his trouble in the management of the trust estate, 297. 373. 
 allowed his necessary expenses, ibid. 373. 
 not charged for more than he receives, ibid. 375. 
 only answerable for fraud or gross neglect, ibid. 376. 
 when guilty of a breach of trust in joining to destroy contingent remainders, 
 
 ibid. 370. 
 when he ought to join with cestuique trust to bar the entail, ibid. 370, 371. 
 of purchases by him, ibid. 362. 
 whether an action at law will lie against him by cestuique trust, ibid. 340. 
 
 TRESPASS. (Vide ENTRY.) 
 
 USE, 
 
 definition of, 1 vol. 1. 
 
 distinguished from a trust, 1 vol. 2, 3. 30, &c. 
 
 whether it might have been limited upon a term for years, 1 vol. 32, &c. 
 
 alienable, 1 vol. 65. 
 
 devisable, 1 vol. ibid. 
 
 possessio fratris of it, 1 vol. 64. 
 
 king could not stand seised to it, ibid. 59. 
 
 consideration to raise it, ibid. 61. 
 
 who could stand seised to it, ibid. 56. 
 
 who could be cestuique use, ibid. 59. 
 
 descendible, ibid. 64.
 
 INDEX. 
 
 USE continued. 
 
 was not subject to dower or curtesy, ibid. 66. 
 
 differed in many respects from cases of possession, ibid. 68. 
 
 executed by the statute, 1 vol. 82, &c. 97, &c. 
 
 resulting, 1 vol. 99. 
 
 who may stand seised to it since the 27 H. 8. ibid. 87. 
 
 could not be of a greater estate than the seisin out of which it was to arise, 
 
 ibid. 109. 
 the words trust, confidence, and intent, may create it, ibid. 97, &c. 
 when the limitation and creation of estates by way of use agree with or differ 
 
 from the rules of the common law, ibid. 121, &c. 
 secondary, or shifting, ibid. 137. 143, &c. 
 doctrine of uses has made an alteration in the ancient laws of remitter, 
 
 1 vol. 205. 
 who may declare a use, ibid. 213. 
 what not executed by 27 H. 8. ibid. 95, &c. 231, &c. 
 contingent, 232. 
 
 WRIT 
 
 of causa matrimonii preelocuti, 1 vol. 12. 
 
 THE END. 
 
 Printed by S. Gosnell, Little Queen Street, London.
 
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