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T 5t434ft LONDON : I'HINTKD BY C. F. EOWORTH, GREAT NEW STREET, FETTER LANE — E.C. Is. FEO.AE THE PREFACE TO TllK ORIGINAL EDITION. Or the plan and principle of this Avork on the Laws of England, and of the views on which it was undertaken, it may be right here to give some explanation. Though the celebrated Treatise of Blackstone still remains Avithout a rival, as an in- troductory and popular work on the laws of Eng- land, the positions which it contains have been nevertheless so trenched upon by alterations in the law itself of modern date, that if the student were to rely upon its text, as containing an accurate account of our present system of jurisprudence, he would be led continually astray. The later editions of that work have consequently com- prised a copious accompaniment of corrective and supplementary notes at the bottom of the page : but it is not in the nature of such a method (with whatever ability pursued) to give entire satisfaction, because it obliges the reader to trans- fer his attention, incessantly, from the text to the commentary, and augments also, to a consider- able degree, the bulk and consequent expense of the volumes. These considerations led me to conceive that a work might prove acceptable, a 2 783228 IV PREFACE TO THE ORIGINAL EDITION. which should be f rallied upon the plan of intro- ducing the necessary alterations into the text itself ; but the question then arose, whether it would be better to confine my effort to the reparation of those defects which new legislation and new decisions had occasioned, or to take a bolder course, and, discarding all solicitude about the measure of my adherence to the original work, to interweave my own composition with it, as freely as the purpose of general improvement might seem to require. It was upon the latter plan that I fixed, though with some hesitation, my choice. It may be thought, perhaps, that the confidence which carried me thus far, might naturally have tempted me farther, and taught me to aspire to the construction of an entirely new treatise. But if I had been conscious of faculties adequate to such an enterprise, I should still have declined it, as founded, in my judgment, on a wrong prin- ciple. The unimpaired j^ortion of Blackstone's Commentaries comprises many passages, which (free in other respects from objection) are so far valuable at least, that they bear the stamp of his authority ; and many others whose merit is of the highest order, being distinguished by all the grace and spirit of diction, the justness of thought, and the affluence of various learning, to which he owes his fame. Those relics, Avhicli are in considerable danger of perishing by their in- PREFACE TO THE ORIGINAL EDITION. V corporation in a work now falling into decay, may be lawfully converted by any new Commen- tator on the Laws, to his own purposes ; and it is manifestly not less his duty than his interest, to make the approj^riation. He cannot reasonably hope to rival their excellence ; and to attempt to displace them for original matter of his own, is consequently an injury to the public, and to the science of which he treats. All passages, then, which appeared to me to fall under either of the descriptions above given, I have made it my principle to retain ; but my deviations from the original work have, nevertheless, been frequent and extensive. Independently of certain objections to its arrangement (to which I shall presently revert), its exposition of particular sub- jects apjoeared to me to be often deficient in depth, in fulness, or in precision, and in some instances to be even chargeable with positive inaccuracy ; so that, as I had prescribed to myself the rule of de- parting from Blackstone wherever I felt dissatisfied with his i^erf ormance as well as where any change in the law had made a departure indisj^ensable, it is seldom that I have been able to pursue the text for several pages in succession, without the intro- duction (more or less extensively) of matter from my own pen. Large portions, indeed, of original composition will be found frequently to occur in a continuous form ; and even where the text of my predecessor is pursued with shorter interruption, VI PREFACE TO THE OKIGIXAL EDITION. yet it will be often apparent that fundamental alterations have been made in the manner of treating the particular subject under discussion. With respect to the general arrangement of the work, it is to be remarked that the order adopted by Blackstone is, in all its princi23al lineaments, derived from the Analysis of Hale ; but though rendered venerable by the combined authority of names like these, I have not felt myself able to accede to it without alteration. The main division, indeed, by which the body of municipal law is severed into Rights and Wrongs, I have deemed it expedient to retain ; for (though liable to the great disadvantage of precluding the entire or con- tinuous discussion of some particular subjects, by making it necessary to recur to them under the aspect of Wrongs, after they have already once engaged our attention under that of Rights) it is founded nevertheless on a natural and just dis- tinction, and is interwoven besides with the whole fabric of our law, and rooted in the minds of our lawyers. The division also of Wrongs into those of a civil, and those of a criminal nature, I have, for similar reasons, thought it clearly essential to pre- serve. But as to the division of Rights, the case is widely different. These are distributed by Black- stone into Rights of Persons and Rights of Things ; an arrangement which has been justly considered contrary both to grammatical and logical pro- priety. For the rights of things can only be PREFACE TO THE OKIOINAT, EDITION". VU understood as signifying the rights relating to things — a sense not correctly conveyed by the form of expression ; and are placed, besides, in false antithesis to the rights of persons ; by which is evidently intended the rights belonging to persons. The meaning would have been better expressed by a division into the rights relating to j)ersons, and the rights relating to things. This fault, indeed, is the more remarkable, because it might have been avoided by a closer adherence to the language of Justinian's Institutes, which appa- rently served in this instance as the model : Omne jus quo utimur (according to this authority) vel ad personas pe7'tinet, vel ad res ^ vel adactiones[cV). The arrangement in question, however, is not open merely to this kind of criticism, but to other objections of a much weightier description. In the first place, it determines that the law relating to persons shall be fully discussed before that relating to property has been examined, — and yet the sub- ject of proj^erty ought, in reason, to take the pre- cedence of that part of the law of persons, at least, which treats of relative rights ; for it is in the nature of the relative rights, viz. those which grow out of the social relations of parent and child, husband and wife, magistrates and people, and the like, to pre- suppose the absolute ones of life, liberty, personal security, and property (e). With respect to absolute [d) Instit. lib. i. tit. 2. («) This did not escape the discernment of Hale: " Having' done with Vlll PREFACE TO THE ORIGINAL EDITION. rights of the three first descrijDtions, this is obvious, and the precedence therefore is properly assigned to them in Blackstone's work ; but it is equally true with regard to property also — for property, like the rest, unquestionably constitutes one of the circum- stances to which the social relations are adjusted, and to which they must be supposed to refer. To this right, therefore, the next place ought, in point of correct arrangement, to have been allotted ; but the Commentator's plan of division makes this im- possible, and compels him, after a short notice of property, to pass on, and to postpone its further ex- amination, until all relative rights (whether private or public) have been exhausted. This inversion of the natural order is not only inartificial, but often embarrasses the discussion of rights of the relative kind. Thus in the chapiter on Husband and Wife, every reader must perceive the disadvantage of the total omission to notice the effects of marriage in regard to the property of the parties ; and yet until the subject of property in general had been ex- amined, any disquisition on the pro^orietary rights " the rights of persons, I now come to the rights of things. And though ' ' according to the usual method of civilians, and our antient common law " tractates, this comes in the second place, after the Jura persona rum, and " therefore I have herein piu'sued the same coui'se, yet that must not be ' ' the method of a young student of the common law, but he must begin " his study here, at the Jura rerum ; for the forq^cr part contains matter ' ' proper for the study of one that is well acquainted Avith those Jura " rerum.'" Hale's Anal. sect. 23. This passage had not attracted my attention until my principle of division had been fixed upon ; and its subsequent discovery was of course calculated to give me increased confi- dence in the propriety of my choice. PREFACE TO THE ORIGINAL EDITION. IX attending that particular relation, would have been obviously premature. Another, and a still more important objection to the method which considers Eights as consisting either of Rights of Persons or Rights of Things, is that it fails to embrace the whole compass of rights. There is a branch of law which belongs (properly speaking) to neither of these divisions, but of great and growing importance in our mu- nicipal system, that, namely, which concerns the social, as distinguished from the political, eccle- siastical, and judicial institutions of the country, and which comprises (among many other subjects) the laws relating to the poor, to highways, to public charities, and the like. For topics such as these, the analysis of Blackstone affords no proper place, and when they are of too much importance to be neglected, expedients of an awkward kind are often devised to make room for them. Thus the law of highways and turnpikes is made incidental to the office of parish surveyor, and the large and interesting subject of the poor laws is dealt with, by way of digression from the office of overseer. Dissatisfied for these reasons with Blackstone' s arrangement of rights, and conceiving that it had not, like the other portions of his general method, become so inveterate among us, as to render its re- tention unavoidable, I have consequently ventured X PREFACE TO THE ORIGTINAL EDITION. to lay it aside, and to adopt, so far as this subject is concerned, a different plan of distribution. This j^lan is entirely of ray own conception. It might have been supposed, indeed, that in a field so highly cultivated as that of Rights, I could be at no loss for a satisfactory precedent ; but my search for one, though prosecuted with some diligence, was not attended with success. No writer on English or American law, who has deserted the order of Black- stone, had any pretension to be considered as a model — the repositories of the Roman jurispru- dence (which, with the exception of the Institutes, are notoriously defective or confused in their arrangement) sujjplied nothing to the purpose — the Institutes themselves (from which the division into the rights of persons and of things was originally taken) could of course afford no assist- ance ; — and, with respect to the continental systems, they either conform (as in the Code Civil of France) to the Institutes, or when they depart (as in the treatise of Domat) from the beaten track, tlieir course is not such as an Eng- lish jurist could follow with advantage. The general plan which I luive thus ventured, on my own responsibility, to lay down, will be found at the commencement of the first book. Its lead- ing principle is — to make the distinction between Persons and Things the foundation not of a primary, but of a subordinate arrangement, and to con- PREFACE TO THE ORTGINAL EDITIOX. XI sider Persons as constituting, in a primary sense, the only objects of the law's regard. But the persons, whom the law is supposed thus uniformly to contemplate, are 2:)resented, first, in the light of insulated individuals, — and in that capacity their personal (in other words their hodilij) rights are examined; next, in their connection with the things around them, — which introduces the consideration of their rights of property ; next, as members of families, — which involves their rights in iirivate relations; and lastly, as members of the com- munity, — which leads to the discussion of their rights in public relations, or (as they may be termed more compendiously) piihlic rights. According to this order, the absolute right uni- formly takes the precedence of the relative, and the law of property in general is investigated be- fore the relations of men, in regard to joroperty, arise for consideration. Upon this system, too, the division of Fuhlic Rights allows of a sub-division conveniently adapted to the discussion of those mixed subjects to which we have before referred, and which, having no exclusive connection eitlier with person or property, it is the tendency of Blackstone's method to exclude. Public Rights are accordingly divided into those which concern a man in his relations to persons in authority, whether civil or ecclesiastical, and those which concern him in his relations to his fellow citizens Xll PREFACE TO THE ORIGINAL EDITION. at large — the first of which falls under the heads of The Civil Government^ and The Church; the second under that of the Social Economy of the Realm; and it is under this latter head that such mixed sub- jects, as above referred to, will find their regular and a]3proj)riate j)lace. The entire arrangement of the work is consequently as follows: — I. Op Personal Eights. II. Of Rights of Property. 1. As to things real. 2. As to things personal. III. Of Eights in Private Eelations. 1 . Between master and servant. 2. Between husband and wife. 3. Between parent and child. 4. Between guardian and ward. IV. Of Public Eights. 1. As to the civil government. 2. As to the chiu'ch. 3. As to the social economy of the realm. V. Of Civil Injuries. Including the modes of redress. VI. Of Crimes. Including the modes of prosecution. In a production bearing the relation that has been described to the work of a former "vvi'iter, I have deemed it indispensable to supply the reader with the means of readily and precisely distin- guishing the portions due to either commentator, or, I should rather say, of distinguishing them PREFACE TO THE ORIGINAL EDITION". Xlll with more readiness and precision tlian could be done by aid of the internal evidence resulting from the style or matter. The sense of this has led to a method of notation by brackets, the natm^e of which is explained in a Notice subjoined to this Preface. It has considerably increased both the labour and the expense of the publication, and by no means contributed to the beauty of its page. But the eye soon learns to accommodate itself to the novelty, and it is believed that the reader Avill experience no embarrassment from its adoption. It has not been thought necessary, however, to extend it to the notes. Among these, there are many which are not in Blackstone's work, but the reference that they bear to the text, or other circumstances, will in general be found sufficiently to distinguish them from the annota- tions of Blackstone himself. PREFACE TENTH EDITION, The preparation of the present Edition has been entrusted to me, and in the execution of the task I have paid sedulous attention to the wants both of the Profession and of Students. Care has therefore been taken to leave in the Work all those elements which have contributed to render it a book of authority in the Courts ; and equal care has been devoted to the incorporation of every change in or addition to the law, as it was laid down in the previous Editions. These variations and additions have been, for the most part, worked into the text in the appropriate places; but as regards the important subject of the law of real property and conveyancing, XVI PREFACE TO THE TENTH EDITION. whicli has been entirely re-modelled by the Con- veyancing and Law of Property Acts of 1881 and 1882, and the Settled Land Acts of 1882 and 1884, it has been thought desirable not only to refer to such Acts from time to time in the general text wherever such reference aj)peared desirable, but also to state and explain in one connected and methodical exposition the entire body of such new real property and new con- veyancing law, — and this has accordingly been done in Book XL, Part L, Chap. XXIV. of these Commentaries (Vol. I., pp. 698—738). In Book 11. , Part II., Chap. III., where the acquisition of property by the "title of inven- tion " is expounded, it has been deemed expe- dient to introduce into this Edition the subjects of Trade-Marks and Designs, in addition to the two subjects of Patent Rights and Copyright, which alone were expounded in that Chapter in the previous Editions ; and for this purpose, the material provisions of the Patents, Designs, and Trade -Marks Act, 1883, with those of the Amending Act of 1885, have been introduced, and the old law has been sufficiently stated for PREFACE TO THE TENTH EDITION. xvii the due comprehension of these new enactments, and so as to show also the resjoects in which it has been modified by the enactments in question. Book II., Part II., Chap. VI. ('' Of Title by Bankruptcy "), has been almost entirely re-writ- ten, the old arrangement, nevertheless, having been adhered to so far as possible, and the pre- vious matter also having been retained wherever (as has not unfrequently been the case) it ap- peared useful, either in itself (for reasons mainly historical) or for the light which it throws upon the existing law of bankrujjtcy ; but the provi- sions of the Bankruptcy Act, 1883, and of the Bankruptcy (Appeals from County Courts) Act, 1884, have also received the strictest attention. Changes of the most vital importance have been necessitated in the Fifth Book, particularly in those chapters which deal with the practice of the Courts in an action, and in other proceed- ings ; and it is hoped that these portions of the Work will be found to contain an accurate (although necessarily condensed) statement of the material provisions of the Judicature Acts, 1873 VOL. I. b xviii PREFACE TO THE TENTH EDITION. to 1884, and of the Orders and Rules of 1883, of October, 1884, and of December, 1885. Changes of almost equal importance and extent have been made in Book IV., Part I., Chap. I., wherein is treated the subject of the election of members of the House of Commons, and of other matters belonging thereto; and all the material provisions of the Representation of the People Act, 1885, of the Redistribution of Seats Act, 1885, of the Registration of Voters Act, 1885, and of the Corrupt and Illegal Prac- tices Act, 1883, and of some Acts of a character incidental to these several principal Acts, — have been introduced and methodically arranged, so far as the space at my disposal admitted, and the provisions themselves appeared to demand. Witli regard to such important statutes as the Bills of Exchange Act, 1882, the Bills of Sale Act, 1882, the Married Women's Property Acts, 1882 and 1884, and the Agricultural Holdings Act, 1883, — all the more material provisions of these statutes have been introduced into, and have been severally incorporated in, the text in their PREFACE TO THE TENTH EDITION. XIX appropriate places; and the less material (although not unimportant) provisions of the above statutes have been stated in the foot-notes annexed, — a method which has been adopted also with nume- rous other Acts of a less important character: and, altogether, 175 new statutes will be found referred to in this Edition, and the object thereof stated, and (in most instances) the effect thereof given, either in the text itself or in the appro- priate foot-note. The decisions of the Courts during the three years or more that have intervened between the last and the present Edition, have not been over- looked; and although it would have been im- jDossible to have attempted to embody all of these decisions, still their effect (where they have been or are likely to prove of permanent value, or arc otherwise of general importance) has been given in the text, and a very large number of them have been cited in the foot-notes. With regard to the subject of Crimes, the statement of the criminal law, as contained in the Fourth Volume, and constituting the Sixth b2 XX PREFACE TO THE TENTH EDITION. Book, lias not (as a whole) required any organic change, or, in fact, much alteration of any sort. But the modifications of the text which have been made necessary by the legislation of 1882, 1883, 1884, 1885, and the early part of 1886, have been made ; and, in particular, the provisions of the Criminal Law Amendment Act, 1885, have been stated with as much particularity as is proper in a work of this description. If the Bill to amend the Law of Evidence in Criminal Cases, which has already passed through the House of Lords, should receive the royal assent this present session, or so soon as its provisions become law. the law as stated on page 442 of the Fourth Volume will have been materially modified. The concluding portion of the Commentaries, that, namely, which is devoted to a consideration of " the Rise and Progress" of the Laws of England, has received adequate attention. It is a portion of the Work which, probably more than any other, has been read with avidity by the historical student, and it is full of interest and of instruction even to the practising professional PREFACE TO THE TENTH EDITION. XXI lawyer; at the same time, it is but an outline of that gradual progress of our laws which is more fully expounded in the foregoing Books. In conclusion it may be added, that every care has been bestowed upon the Indexes to the sepa- rate volumes, and also upon the General Index and upon the Table of Statutes in the Fourth Volume. ARCHIBALD BROWN. Lincoln's Inn, May, 1886. NOTICE TO THE READER. The portions of these Commentaries which lie between brackets [ ] are taken substantially from Blackstone ; and rest, chiefly, on his authority. To enable the reader to distinguish these portions from other j^arts of the work, u23on merely opening the volume, and without being obliged to tm^n the leaves over backwards, the continuation of an ex- tract is always marked by a new bracket at the top of the page. CONTENTS OF THE WORK. VOLUME I. Introduction. Page Sect. I.— Of the Study of the Law 1 II. — Of the Nature of Laws in general . . . . . . 21 III.— Of the Laws of England 40 IV. — Of the Countries subject to the Laws of England . . 83 Book I. OF PERSONAL RIGHTS. Of Rights and Wrongs .. .. .. .. .. .. .. 135 Of the general Arrangement of the Work . . .. ,. .. 138 Of the Right of Personal Security .. ,, .. .. ..139 Of the Right of Personal Liberty . . . . . . . . . . 144 Book II. OF RIGHTS OF PROPERTY. As to Propertj' in general .. .. .. .. .. ..151 PART I. OF THINGS REAL 1G7 CHAP. I. Of the Divisions of Things Real. Of Lands, Tenements, and Hereditaments . . . . . . . . 168 Of Hereditaments, Corporeal or Incorporeal .. .. ., 170 XXIV CONTENTS OF THE FIRST VOLUME. CHAP. II. Of Tenuees. Page Of the Feudal System 172 Of the Introduction of that System into England . . . . 181 Of the Nature of Tenure . . . . . . . . . . . . . . 185 Of the different sorts of Tenure . . . . . . . . . . 186 Of Knight's Service 188 Of Free Socage and its Incidents . . . . . . . . . . 205 Of Petit Serjeanty, Tenm-e in Burgage, and Gavelkind . . . . 210 Of Manors 214 OfViUenage 215 Of Copyhold 219 Of Antient Demesne . . . . . . . . . . . . . . 224 Of Customary Freehold . . . . . . . . . . . . 225 Of Tenure in Frankalmoign . . . . . . . . . . . . 226 CHAP. III. Of Freehold Estates of Inheritance. Of Estate 229 Of Legal and Equitable Estate 230 Of Freehold Estate ibid. Of a Fee 232 Of Estates in Fee Simple 233 Of the Statute of Quia Emptores . . . . . . . . . . 234 Of Fee Simple Absolute, Base, and Conditional . . . . . . 239 Of Estates TaU 242 CHAP. IV. Of Freehold Estates not of Inheritance. Of Estates for Life, created by Act of Parties . . . . . . 254 Of Tenant in Tail after Possibility of Issue Extinct . . . . 262 Of Estate by the Cm-tesy of England 264 Of Dower 267 Of Jointure 272 CHAP. V. Op Estates less than Freehold. Of the Distinction between Chattels and Freehold . . . . . . 280 Of Estates for Years 282 Of Intercsse Termini . . . . . . . . . . . . . . 287 Of Tenancies from Year to Year . . . . . . . . . . 289 Of Estates at Will 292 Of Estates at Sutterauco . . . . . . . . . . . . 294 CONTENTS OF THE FIRST VOLUME. XXV CHAP. VI. Of Estates upon Condition. Page Of Estates on Condition implied in Law . . . . . . . . 296 Of Estates granted on Express Condition, whether precedent or subsequent . . . . . . . . : . . . . 297 Of Conditional Limitation . . . . . . . . . . . . 298 Of Conditions Impossible, contrary to Law, or repugnant . . 301 Of the Eight of Entry on Breach of Condition subsequent . . . . 302 Of Waiver of Forfeiture . . . . . . . . . . . . ibid. Of Viviim Vadium . . . . . . . . . . . . . . . . 303 Of Mortgage . . . . . . . . . . . . . . . . ibid. Of Estates by Statute Merchant and Statute Staple . . . . . . 308 Of Estate by Elegit 309 CHAP. VII. Of Estates in Possession, Reveesion, and Remainder. Of an Estate in Possession . . . . . . . . . . . . 312 Of Right of Possession and Right of Entry . . . . . . 313 Of an Estate in Reversion . . . . . . . . . . . . ibid. Of Merger 316 Of an Estate in Remainder . . . . . . . . . . . . 318 Of the Rides as to the Creation of Remainders . . . . . . 322 Of Vested and Contingent Remainders . . . . , . . . 324 Of the Rules relative to Contingent Remainders . . . . . . 328 Of Defeating Contingent Remainders . . . . . . . . . . 329 Of Trustees to preserve Contingent Remainders . . . . . . 330 Of Strict Settlement 331 Of the Rule in Shelley's Case 333 CHAP. VIII. Of Estates in Severalty, Joint Tenancy, Coparcenary, and Common. Of an Estate in Severalty . . . . . . . . . . . . 338 Of an Estate in Joint Tenancy .. .. .. .. .. 339 Of an Estate in Coparcenary . . . . . . . . , , . . 346 Of Tenancy in Common . . . . . . . . . . , . 351 Of Cross Remainders . . . . . . . . . . . . . . 354 CONTENTS OF THE FIRST VOLUME. CHAP, IX. Of Uses and Teusts. Of the Origin of Uses and Trusts Of the Docti'ine of Uses prior to the Statute of Uses Of the Statute of Uses . . Of the Doctrine of Uses and Trusts since the Statute Of the different Kinds of Trusts Of the Estate of the Trustee Of the Estate of cestui que Trust Of Terms held in Trust to attend the Inheritance Page 356 358 366 369 371 375 377 380 CHAP. X. Of Title in general. Of Title by Act of Law Of Title by Purchase . . 384 385 CHAP. XI. Of Title by Descent. Of the Natm'e of the Heir's Title in general . . Of the Inheritance Act, 3 & 4 Will. 4, c. 106 Of tracing Descent from the Purchaser Of the Maxim Seisinafacit Stipitem . Of Descent to the Issue . . Of the Preference of Males to Females Of Primogenitiu-e . . Of Representation Of Descent to Lineal Ancestors . . Of the Preference of the Paternal Line to the Maternal Of the Descent to the Issue of Lineal Ancestors Of Whole and Half Blood Of certain .special Cases of Descent Of the Mode of tracing and ascertaining the Heir Of Entiy by the Heir Of Breaking the Descent Of the Liability of the Heir for the Debts of the Ancestor .. 388 391 . . ibid. 399 .. 401 402 .. 403 406 .. 409 413 . . 417 419 .. 425 427 .. 430 ibid. tor . .. 432 CHAP. XII. Of Title by Escheat. Of the Nature and Principle of Escheat in general Of Escheats juro/;"rS OF THE THIRD VOLUME. VOLUME III. Book IV. OF PUBLIC RIGHTS— continued. PART III. OF THE SOCIAL ECONOMY OF THE EEALM Page 1 CHAP. I. ■ Of the Laws relating to Corporations Of Corporations Aggregate and Sole Of Corporations Ecclesiastical and Lay . Of Corporations Civil and Eleemosynary Of the Creation of Coi-porations . . Of the Incidents of Corporations Of Qualified Corporations . . Of Incorporated Joint Stock Companies Of the Visitation of Corporations Of Hospitals Of Colleges in the Universities Of the Dissolution of Corporations . . Of Municipal Corporations 4 .. 5 .. .. 6 ..8 11 ..19 ibid. . . 26 28 . . ibid. 30 . . 32 CHAP. II. Of the Laws relating to the Poor. Of the Overseers of the Poor . . Of the early Law of Settlement, Relief and Removal. . Of Gilbert's Act Of the Select Vestry Act . . Of the Poor Law Amendment Act . . Of the Local Government Board . . Of the present Law of Settlement, Relief and Removal Of the Poor Rate 44 . 45 48 . ibid. 49 , . 5ft 53 .. 65 CONTENTS OF THE THIRD VOLUME. xlv CHAP. III. Of the Laws eelating to Chaeities, Savings Banks, Feiendly AND OTHEE SOCIETIES. Of Charities generally Of the Charitable Trusts Acts Of Savings Banks . . Of Friendlj' Societies . . Of Building Societies Of Industrial and Provident Societies Page 76 83 92 93 CHAP. IV. Of THE Laws eelating to Education. Of Public Elementary Education Of Public and Endowed Schools Of Sites for Schools and for Institutions Of Parliamentary Grants for the Education of the Poor Of Pauper Schools Of Reformatoiy Schools Of Industrial Schools 95 100 106 108 110 111 113 CHAP. V. Of the Laws eelating to Litnatic Asylums, and theis Management. Of County Limatic Asyhuns. . .. .. .. .. .. 117 Of the Custody of Criminal Lunatics . . . . . . . . . . 120 Of the Custody of Lunatics generally . . . . . . . . 122 Of the Commissioners in Lunacy .. .. .. ..123 Of the Visitation of Lunatics . . . . . . . . . . 124 CHAP. VI. Of the Laws eelating to Peisons. Of Gaolers Of Houses of Correction . . Of the Prisons Acts . . Of Prison Discipline Of the Visitation of Prisons Of the Inspectors of Prisons Of Millbank Prison . . Of Parkhurst Prison Of PentonviUe Prison . . 126 127 128 129 130 ibid. 131 132 133 xlvi COXTEXTS OF THE THIRD VOLUME. CHAP. VII. Of the Laws relating to Highways — and herein of Bridges and Ttjenpike Roads. Page Of the Repair of Highways . . . . . . . . . . . . 135 Of the Repair of Bridges . . . . . . . . . . . . ibid. Of Highways generally . . . . . . . . . . . . 139 Of Turnpike Roads . . . . . . . . . . . . . . 145 CHAP. VIII. Of the Laws relating to Navigation — and to the Mercantile Marine. Of the Navigation Acts . . . . . . . . . . . . . . 150 Of the Merchant Shipping Acts . . . . . . . . . . 154 Of the Ownership, Registration, and Transfer of Merchant Ships. . 155 Of the Laws relating to Merchant Seamen . . . . . . 157 Of Pilotage 163 Of Lighthoiises, Beacons and Sea-marks . . . . . . . . 166 Of the Liability of Shipowners . . . . . . . . . . . . 169 Of the Laws relating to Fisheries . . . . . . . . . 172 CHAP. IX. Of the Laws relating to the Sanitary Condition of the People. Of the Plague Of Quarantine . . Of the Asiatic Cholera Of the Small Pox Of "The PubHc Health Act (1848)" . . Of the Local Government Acts Of " The Diseases Prevention Act (1855) " . . Of " The Nuisances Removal Act for England (1855) " , Of the Local Government Board Of "The Public Health Act (1872) " Of "The PubHc Health Act (1875) " . . 175 176 177 178 179 180 ibid. 181 182 ibid. 183 CHAP. X. Of the Laws relating to Pttblic Conveyances. Of Stage Coaches . . Of Railways Of Conveyances by Water Of " The Passengers' Acts" 186 188 193 194 CONTENTS OF THE THIRD VOLUME. xlvii CHAP. XI. Of the Laws relating to the Press. Pa&e Of the Liberty of the Press 197 Of certain Restrictive Regulations . . .... . . . . 198 CHAP. XII. Of the Laws relating to Houses of Pxtblic Reception and Entertainment . Of Public Houses 200 Of Excise Licences . . . . . . . . , . . . . . ibid. Of Justices' Licences . . . . . . . . . . . . . . 201 Of the Licensing- Acts . . . . . . . . . . . . ibid. Of Refreshment Houses . . . . . . . . . . . . . . 206 Of Theatres 207 CHAP. XIII. Of the Laws relating to Professions. Of Physicians 211 Of Surgeons . . . . . . . . . . . . . . . . ibid. Of Apothecaries . . . . . . . . . . . . . . . . 212 Of Chemists and Druggists .. .. .. .. .. 213 Of the Medical Acts 215 Of the Schools of Anatomy 220 Of Solicitors 221 CHAP. XIV. Of the Laws relating to Banks. Of the Origin of Banks 230 Of the Bank of England 231 Of Banks of Issue, or of Deposit 232 Of Branches of the Bank of England . . .... . . 233 Of the Banking Act of 1844 235 Of Joint Stock Banks 237 CHAP. XV. Of the Laws relating to the Registration of Births and Deaths. Of the Ecclesiastical Mode of Registration . . . . . . . . 240 Of the Civil Mode of Registration 242 Of the Registration of Births . . . . . . . . . . , . 244 Of the Registration of Deaths . . . . . . . . . . 245 xlviii CONTENTS OF THE THTKD VOLUME. Book V. OF CIVIL INJURIES. CHAP. I. Of the Redeess of Injuries by the mere Act of the Parties. Of Wrongs in general Of Self-defence Of Recaption or Reprisal Of Entry Of Abatement of Nuisances Of Distress Of the Seizure of Heriots, "Waifs, &c. Of Accord and Satisfaction . . Of Arbitration Page . . 249 250 . . 251 252 . . 253 254 . . 268 ibid. . . 269 Of Retainer Of Remitter CHAP. II. Of Redress by the mere Operation of Law. CHAP. III. Of the Courts in General. Of the different Species of Courts Of Solicitors Of Counsel . . 274 276 280 281 283 CHAP. IV. Of the Inferior Courts. Of the Court Baron Of the Hundred Court Of the Sheriff's County Court . . Of the County Courts. . Of Borough and other Local Courts Of the Courts of Sewers Of the Stannary Courts . . Of the University Courts Of the Ecclesiastical Courts 291 292 293 295 307 310 312 314 316 CONTENTS OF THE THIRD VOLUME. xHx CHAP. V. Of the Supreme Couet of JxroiCATiniE. Page Of the High Court of Chancery . . . . . . . . . . 336 Of the Coiirt of Queen's Bench . . . . . . . . . . 347 Of the Court of Common Pleas . . . . . . . . . . . . 350 Of the Court of Exchequer . . . . . . . . . . . . ibid. Of the High Court of Admiralty . . . . . . . . 357 Of the Court of Probate 359 Of the Court for Divorce and Matrimonial Causes . . . . . . ibid. Of the High Court of Justice . . . . . . . . 362 Of the Chancery Division . . . . . . . . . . . . 369 Of the Queen's Bench Di^dsion, now including the Common Pleas and Exchequer Divisions . . . . . . . . ibid. Of the Common Pleas Division . . . . . . . . . . . . 370 Of the Exchequer Division . . . . . , . . . . . . ibid. Of the Probate, Divorce and Admiralty DiAdsion . . . . . . ibid. Of the Bankruptcy Di\nsion .. .. .. .. .. .. 371 Of the Court of Appeal . . . . . . . . . . . . . . 372 CHAP. VI. Of the ultimate Couets of Appeal. Of the House of Lords .... . . . . . . . . 377 Of the Judicial Committee . . . . . . . . . . 378 CHAP. VII. Of the different Species or Civil Injueies and theie Remedies — AND HEEEIN OF THE E.EMEDT BY AOTION GENEEALLY. Of Actions generally . . . . . . . . . . . . 380 Of Personal Actions . . . . . . . . . . . . . . 383 Of Ileal Actions . . . . . . . . . . . . . . . . ibid. Of Mixed Actions 384 Of Actions on Contracts or on Torts . . . . . . . . . . 385 Of the EoiTiis of Personal Actions . . . . . . . , . . ibid. Of Actions Local or Transitory . . . . . . . . . . , . 388 Of Actions for the Specific Recovery of Property, or for Damages ibid. Of Damnum absque Injuria . . . . . . . . . . . . 390 Of the Transfer of Rights of Action, by Act of Law . . . . 391 Of the Action by the Representatives of a Person killed . . . . 392 CHAP. VIII. Of THE DIFFEEENT SpECIES OF CiTIL InJUEIES, AND THEIE REMEDIES. Of Injuries affecting Personal Rights . . . . . . . . . . 394 Of Injuries affecting Rights of Property . . . . . . . . 407 Of Injuries affecting Rights iu Private Relations . . . . . . 466 Of Injuries affecting Public Rights. . .. .. .. .. 473 VOL. I. d 1 CONTENTS OF THE THIRD VOLUME. CHAP. IX. Of EatriTT in its eelation to Law. Page Of the Distinction between Law and Equity 475 Of the Subjects of Equitable Jiirisdiction . . . . . . . . 484 Of Equitable Relief 486 Of Equity in relation to Trusts . . . . . . . . . . ibid. Of Decreeing Specific Performance . . . . . . . . . . 492 Of an Injunction . . . . . . . . . . . . . . 493 Of Pei-petuating Testimony 494 CHAP. X. Of the Limitation of Actions. Of the Statutes of Limitation .. .. .. .. .. ..498 Of Limitation as to Entry or Distress and Proceedings for the Recovery of the Realty or of Rights issuing thereout . . 499 Of Limitation as to Actions not brought for Recovery of Things Real 507 CHAP. XI. Of the Peoceedings in an Action. Of the Division of the Year into Terms . . . . . . . . 515 Of the Process 522 Of the Pleadings 533 Of the Trial and Evidence 550 Of the Judgment . . . . . . . . . . . . . . . . 596 Of Costs ' 609 Of Execution .. .. 612 Of Appeal 625 CHAP. XII. Of Inteelocutoey and Incidental Peoceedings, and heeein of Peeeogative "Weits. Of Motions Of Intei-pleader Of Interlocutory Applications . . Of the Writ of Scire Facias Of the Writ of Procedendo Of the Writ of Mandamus Of the Writ of Prohibition Of an Information in the natiu'e of a Quo Warranto Of the Writ of Habeas Corpus . . Of the Writ of Certiorari . . 629 633 ..635 636 ..637 638 . . 644 647 ..661 660 CONTENTS OF THE THIRD VOLUME. U CHAP. XIII. Of Proceedings in the Chanceey Division. Page Of the Process 665 Of the Pleadings 667 Of the Trial and Evidence 668 Of the Judgment .. .. .. .. .. .. .. .. 671 Of Execution . . . . . . . . . . . . . . . . 672 Of Appeal 673 CHAP. XIV. Of Proceedings in the Probate, Divorce and Admiralty Division. Of a Prohate Action . . . . . . . . . . . . . . 675 Of a Divorce Petition . . . . . . . . . . . . . . 678 Of an Admiralty Action . . . . . . . . . . . . . . 683 CHAP. XV. Of Injuries affecting the Crown. Of obtaining Redress from the CrovsTi . . . . . . . , . . 688 Of Injuries to the Crown . . . . . . . . . . . . 69"2 Of an Inquisition or Inquest of Office . . . . . . . . . . il>ifL Of an Extent in Chief 695 Of an Extent in Aid 699 Of Proceedings to repeal Patents . . . . . . . . . . 700 Of an Information in the Exchequer . . . . . . . . . . ibid. d2 lii CONTENTS OF THe'fOURTH VOLUME. VOLUME IV. Book VI. OF CRIMES. CHAP. I. Of the Nature of Crimes and their Punishments. Page Of the Distinction between Crimes and Civil Injuries . . . . 4 Of Misdemeanors and Felonies . . . . . . . . . . 7 Of the Rig-ht to inflict Punishment . . . . . . . . . . 11 Of the Object of Punishment . . . . . . . . 14 Of the Measure of Punishment . . . . . . . . . . . . 15 CHAP. II. Or THE Persons capable of committing Crimes. Of Persons who are not capable of committing Crimes . . 22 Of Infancy . . . . . . . . . . . . . . . . 24 Of Idiocy or Lunacy . . . . . . . . . . . . . . 26 Of Drunkenness . . . . . . . . . . . . . . 30 Of Misfortune or Chance . . .. .. .. .. .. .. 31 Of Ignorance or Mistake . . . . . . . . . . . . iUd. Of Compulsion and Necessity . . . . . . . . . . . . 32 Of the Incapacity of the Sovereign to commit Crime . . . . 37 CHAP. III. Of Principals and Accessories. Of a Principal in the First Degree . . . . . . . . . . 39 Of a Principal in the Second Degree . . . . . . . . ibid. Of Accessories . . . . . . . . . . . . . . . . 41 Of Accessories before the Fact . . . . . . . . . . ibid. Of Accessories after the Fact . . . . . . . . . . . . 43 Of the Punishment of Accessories . . . . , . . . . . 44 CONTENTS OF THE FOURTH VOLUME. liii CHAP. IV. Of Offences against the Person and Reputation. Page Of Homicide 48 Of Justifiable Homicide . . . . . . . . . . . . . . 49 Of Excusable Homicide . . . . . . . . . . . . 53 Of Felonious Homicide . . . . . . . . . . . . . . 60 Of Self-Murder 61 Of Manslaughter 64 Of Murder 67 Of Attempts to Murder 80 Of Conspiracy to Murder . . . . . . . . . . . . 81 Of Acts causing Danger to Life or Bodily Harm . . . . . . 82 Of Procuring Miscarriage . . . . . . . . . . . . 86 Of Concealment of Birth . . . . . . . . . . . . ibid. Of Abduction of Females . . . . . . . . . . . . 87 Of Rape 89 Of Defilement or Abuse of Children . . . . . . . . 95 Of Kidnapping and Child Stealing . . . . . . . . . . 96 Of Abandoning Children . . . . . . . . . . . . 97 Of Endangering Railway Passengers . . . . . . . . . . 98 Of Setting Spring Guns, or destructive Engines . . . 99 Of Assaults, Batteries and False Imprisonment . . . . ibid. Of Bigamy 101 Of Publication of a Libel 104 CHAP. V. Of Offences against Rights of Peopeett oe arising out of Contract. Of .Arson 108 Of Bm-glary ,. .. .. .. .. .. .. ..113 Of Sacrilege and Housebreaking . . . . . . . . . . ] 20 Of Larceny.. .. .. .. .. .. .. .. .. 121 Of Larceny in a Dwelling-house . . . . . . . . . . 133 Of Larceny in Ships, Wharfs, &c. . . . . • . . . . . . ibid. Of Larceny from the Person . . . . . . . . . . , , 134 Of Assault with intent to Rob . . . . . . . . . . . . 137 Of Extorting Money by Threats, Accusations, &c. . . . . ibid. Of Larceny or Embezzlement by Clerks, Servants, &c. . . . . 139 Of Larceny in relation to the Post Office . . . . . . . . 14,5 Of Receiving Stolen Property .. .. .. .. .. ..147 Of Malicious Mischief . . . . . . . . . . . , 140 Of Forgery . . .. .. .. .. .. .. ., ..1.52 Of Obtaining Money by False Personation . . . . , . i,5G liv CONTENTS OF THE FOURTH VOLUME. CHAP. Y .—{continued.) Of Obtaining Money by False Pretences Of Fraudulent Concealment of Deeds, or Falsification of Pedigree Of Falsification of Accounts Of Offences relating to the Coin Of Fraiidulent Debtors Of Cheating Page 157 158 159 ibid. 165 ibid. CHAP. VI. Of Offences against Public Oedee, Inteenal and Exteenal. Of High Treason 167 Of Misprision of Treason . . . . . . . , . . . . 183 Of Discharging Fire Arms, &c., at the Queen . . . . . . 184 Of Treason Felony 185 Of Scandal against the Sovereign .. .. .. .. ..186 Of Praemunire . . . . . . . . . . . . . . . . 187 Of Contempts against the Title of the Sovereign . . . . . . 203 Of Contempts against the Crown's Ecclesiastical Supremacy . . ibid. Of Contempts against the Royal Palaces . . . . . . . . 204 Of Maladministration of High Officers . . . . . . . . 205 Of Selling Public Offices . . 206 Of Offences relating to the Customs . . . . . . . . ibid. Of Offences relating to the Royal Stores, Ships, tSrc. . . . . 208 Of Serving Foreign States 209 Of Desertion, or Seducing to Desert . . . . 210 Of Unlawful Oaths, and Illegal Societies 211 Of Miscellaneous Contempts against the Prerogative . . . . 213 Of Riotously Demolishing Churches, Houses, &c. . . . . 214 Of Destroying Game by Night 215 Of Affrays 217 Of Riots, Routs, and Unlawful Assemblies . . . . . . . . 219 Of Tumultuous Petitioning 222 Of Forcible Entry and Detainer 223 Of Riding Armed 224 Of Spreading False News . . . . . . ibid. Of False and Pretended Prophecies . . . . . . . . . . ibid. Of Challenges to Fight 225 Of Offences against the Law of Nations ibid. Of the Violation of Safe Conducts 228 Of Violating Rights of Ambassadors . . . . . . . . 229 Of Piracy 230 CONTENTS OF THE FOURTH VOLUME. Iv CHAP. VII. Of Offences against Religion, Mohals and Public Convenience. Page Of Apostasy 233 Of Heresy 235 Of Blasi^hemy 239 Of Reviling the Ordinances of the Church 240 Of Profane Swearing 241 Of Using Pretended "Witchcraft, &c 242 Of Religious Imposture . . 244 Of Simony ibid. Of Profanation of the Lord's Day . . ibid. Of the Crime against Natui'e 246 Of SeUing Unwholesome Provisions 248 Of Common Nuisances 251 Of Lewdness 258 Of Drunkenness 261 Of Fui'ious DriNdng 262 Of Cruelty to Animals 263 Of Taking up Dead Bodies 264 Of Refusing to serve a Public Office 265 Of Vagrancy, &c. . . . . ibid. CHAP. VIII. Of Offences affecting the Administration of Justice and the Maintenance of Public Order. Of Stealing, Injui-ing and Falsifying Records Of Striking, or other Outrage in the Superior Couits Of Intimidation of Parties or "Witnesses Of Obstructing a Lawful Arrest or Process Of Escape and Prison-breach Of Rescue and aiding Prisoners to Escape Of Taking a Reward for restoring Stolen Goods Of Compounding of Felony . . Of Misprision of Felony . . Of Compounding Informations and Misdemeanors Of Common Barratry Of Maintenance Of Champerty Of Conspiracy . . Of Perjury . . Of Bribery Of Negligence in Public Officers Of Oppression and Partiality Of Extortion .. 268 s 269 . . 271 272 .. 273 275 .. 277 278 .. 279 280 .. ibid. 281 .. 282 283 .. 287 290 .. 292 ibid. . . ibid. Ivi CONTENTS OF THE FOURTH VOLUME. CHAP. IX. Of the Means of Preventing Offences. Page Of Preventing the Commission of Crimes . . . . . . . . 294 Of Secui'ity for Keeping the Peace . . . . . . . . . . 298 Of Security for Good Behavioiir . . . . . . . . . . 299 CHAP. X. Of Courts of a Criminal Jurisdiction. Of the Courts of Criminal Jurisdiction in general . . . . . . 303 Of the High Court of Parliament 304 Of the Court of the Lord High Steward 307 Of the Queen's Bench Division of the High Court of Justice . . 311 Of the Jurisdiction in Admiralty .. .. .. .. ..315 Of the Assizes . . . . . . . . . . . . , . . . 319 Of the Central Criminal Court 321 Of the General Quarter Sessions . . . . . . . . . . 322 Of the Coroner's Court 327 Of the Sheriff's Tourn ibid. Of the Court Leet or view of Frankpledge . . . . 328 Of the Court of the Clerk of the Market 329 Of the Court of the Lord Steward of the Household . . .. .. 330 Of the University Courts . . . , . . . . . . . . 331 CHAP. XL Of Proceedings of a Summary Nature, and herein of Summary Convictions and Attachment. Of Summary Proceedings generally . . . . . . . . . . 334 Of Revenue, &c. Proceedings . . . . . . . . . . ibid. Of Proceedings before Justices of the Peace . . . . . . . . 335 Of Assault Cases . . . . . . . . . . . . . . 336 Of Summary Jurisdiction in Indictable Offences . . . . . . 338 Of the Proceedings before a Court of Summary Jurisdiction . . 341 Of the Process on Attachment for Contempt . . . . . . . . 346 CHAP. XII. Of Arrests on Crimen al Charges. Of Arrests by Warrant . . . . . . . . . . . . . . 351 Of Arrests without a Warrant . . . . . . . . . . 355 Of Hue and Cry 359 CONTENTS OF THE FOURTH VOLUME. l\ii CHAP. XIII. Of Commitment and Bail. Page Of the Exauiination before the Magistrate . . . . . . . . 362 Of Discharging Person charged . . . . . . . . . . 364 Of Bailing . . . . . . . . . . . . . . . . . . ibid. Of Committing to Gaol 366 Of Recognizances to Prosecute and give Evidence . . . . . . 367 CHAP. XIV. Of the several Modes of Peosecution. Of a Presentment . . . . . . . . . . . . . . . . 369 Of an Indictment . . . . . . . . . . . . . . 370 Of an Information . . .. .. .. .. .. .. .. 383 Of an Antient Prosecution by Appeal . . . . . . , , 389 CHAP. XV. Of Process : and herein of Certiorari. Of Process after Indictment found . . . . . . . . . . 392 Of Capias and Bench Warrant . . . . . . . . . . ibid. Of Outlawry 394 Of Certiorari 396 CHAP. XVI. Of Arraignment and its Incidents. Of the Mode of Arraignment . . . . . . , . . . . . 400 Of Standing Mute 401 Of Confession . . . . . . . . . . . . . . . . 405 CHAP. XVII. Of Plea and Issue. Of a Plea to the Jurisdiction . . . . . . . . . . . . 409 Of a Demurrer .. .. .. .. .. .. .. 410 Of a Plea in Abatement .. .. .. .. .. .. ..411 Of a Special Plea in Bar . . . . . . . . . . 412 Of the General Issue or Plea of Not Guilty .. .. .. ..416 CHAP. XVIII. Of Trial and Conviction. Of the Antient Methods of Crimiual Trial 419 Of Trial of Peers in the Coiu-t of Parliament . . . . . , 428 Of Trial by Jury 429 Of Conviction 448 Of the Costs of the Prosecutor . . . . . . . . . . . . ibid. Of Restitution of Goods . , . . . . . . . . . . 450 VOL. I. e Iviii CONTENTS OF THE FOURTH V'OLUME. CHAP. XIX. Of JtrilGMENT AND ITS CONSEaXJENOES. Page Of Motion in Arrest of Judgment , . . . . . . . . . 454 Of Pronouncing and Recording Judgment . . . . . . 457 Of Fines 459 Of Imprisonment . . . . . . . . . . . . . . 461 Of Whipping . . . . 462 Of Penal Servitude 464 Of Police Supervision . . . . . . . . . . . . . . 467 Of Sentence of Death 468 Of Attainder . . . . . . . . . . . . . . . . ibid. Of Forfeitui'e on Attainder . . . . . . . . . . . . 469 Of Forfeiture of Goods and Chattels 474 Of the Difference between Forfeiture on Attainder and on Convic- tion 475 CHAP. XX. F Reversal of Judgment. Of Setting Aside or Reversing Judgment wdthout Error Of Reversing by Writ of Error Of Effect of Reversing Judgment of Outlawry 478 479 480 CHAP. XXI. Of Repeieve and Paedon. Of Reprieve Of Pardon 482 484 CHAP. XXII. Of Execution. Of the Manner of carrying into Execution a Sentence of Death Of the Prerogative of the Crown as to Mode of Execution 494 496 CONTENTS OF THE FOURTH VOLUME. Ixix CONCLUSION. Of the Rise, Peogeess, and geadual Impeovement of the Laws OF England. Page Of the Progress from the earliest Times to the Norman Conquept . , 498 Of the Progress from the Norman Conqiiest to Edward I. . , 506 Of the Progress from Edward I. to the Reformation . . . . 517 Of the Progress from the Reformation to the Restoration . . 522 Of the Progress from the Restoration to the Revolution •» . . . . 530 Of the Progress from the Revolution to the Present Time . . 533 TABLE OF STATUTES 541 GENERAL INDEX 575 INTEODUCTION. SECTION I. OF THE STUDY OF THE LAW. At the outset of a work like tlie present, in the course of "which it is proposed (though with the aid, in part, of materials derived from a former writer) to bring under examination no less a subject than the entire body of the English law, the discouragement to Avhich the writer is naturally inclined by the magnitude of the task before him, is counteracted by the recollection of its general interest and importance. The subject is one to which no class of readers in the realm can be indifferent ; [for it is incumbent upon every man to be acquainted with those laAvs at least with Avhich he is immediately concerned, lest he incur the censure, as well as the inconvenience, of living in society without knowing the obligations which it lays him under. But it ought to have peculiar attrac- tions for men of liberal education and respectable rank. These advantages are given them, not for the benefit of themselves only, but also of the public : and yet they cannot, in any scene of life, discharge properly their duty either to the public or to themselves without some degree of knowledge in the laws. To evince this the more clearly it may not be amiss to descend to a few particulars. Let us therefore begin witli gentlemen of independent estates and fortune, tlio most useful as well as considerable VOL. 1. B X^ )d IXTRODUCTION. [body of men in the nation ; whom even to suppose igno- rant in this branch of learning is treated by Mr. Locke as a strange absurdity (a). It is their handed property, with its long and Toluminous train of descents and con- veyances, settlements, entails, and incumbrances, that forms the most intricate and most extensive object of legal knowledge. The thorough comprehension of these, in all their minute distinctions, is perhaps too laborious a task for any but a lawyer by profession : yet still the understanding of a few leading principles relating to estates and conveyancing, may form some check and guard upon a gentleman's inferior- agents, and preserve him at least from very gross and notorious imposition. Again, the policy of all laws has made some forms necessary in the wording of last wills and testaments, and more especially with regard to their attestation. An ignorance in these, must always be of dangerous conse- quence to such as by choice or necessity compile their own testaments without any technical assistance. Those who have attended the courts of justice are the best witnesses of the confusion and distresses that are hereby occasioned in families ; and of the difficulties that arise in discerning the true meaning of the testator, or sometimes in disco- vering any meaning at all : so that in the end his estate may often be vested quite contrary to these his enig- matical intentions, because perhaps he has omitted one or two formal words, which are necessary to ascertain the sense with indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law requires. But to proceed from private concerns to those of a more public consideration. All gentlemen of fortune are, in consequence of their property, liable to be called upon to establish the riglits, to estimate the injuries, to weigh the accusations, and sometimes to dispose of the lives of (ff) Eflucation, Sec. 187. SECT. 1.] OF THE STUDY OF THE LAW. 3 [their fellow-subjects, by serving upon jmies. In tliis situation they have frequently a right to decide, and that upon their oaths, cj^uestions of nice importance, for the solution of which some legal skill is requisite ; especially where the law and the fact, as it often happens, are inti- mately blended together. And when jmies are incapable of doing tliis with tolerable propriety, it tends proportion- ably to lower their authority and to throw more powder into the hands of the judges, to direct, control, and even reverse their verdicts, than perhaps the constitution intended. But it is not as a juror only that the English gentleman is called upon to determine questions of right, and distri- bute justice to his fellow-subjects : it is principally with this order of men that the commission of the peace is filled. And here a very ample field is opened for a gen- tleman to exert his talents, by maintaining good order in his neighbourhood ; by punishing the dissolute and idle ; b}^ protecting the peaceable and industrious : and, above all, by healing petty differences and preventing vexatious prosecutions. But, in order to attain these desirable ends, it is necessary that the magistrate should understand his business ; and have not only the will, but the power also, (under which must be included the knowledge,) of administering legal and effectual justice. Else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of contempt from his inferiors, and of censure fi'om those to whom he is accountable for his conduct. Yet farther ; most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament ; and those, who are ambitious of receiving so high a trust, w^ould, also do well to remember its nature and importance. They are not thus honourably distinguished from the rest of their fellow- subjects, merely that they may list under party banners ; may grant or witlihold supplies ; may vote with or vote ]$2 4 INTRODUCTION. [against a popular or unpopular administration ; but upon considerations far more interesting and important. They are the guardians of the English constitution ; the makers, repealers, and interpreters of the English laws ; delegated to watch, to check, and to avert every dangerous inno- vation ; to propose, to adopt, and to cherish any solid and well-weighed improvement : bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended if possible, at least without any derogation. And how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of the old ! what kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments ! Indeed it is perfectly amazing that there should be no other state of life, no other occupation, art, or science, in "which some method of instruction is not looked upon as requisite, except only the science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to almost every art, commercial or me- chanical : a long course of reading and study must form the divine, the physician, and the practical professor of the laws : but every man of superior fortune thinks him- self hor)i a legislator. Yet Cicero was of a different opinion: "it is necessary," says he, "for a senator to be thoroughly acquainted with the constitution ; and this," he declares, " is a knowledge of the most extensive nature ; a matter of science, of diligence, of reflection ; without which no senator can possibly be fit for his office" (6). The mischiefs that have arisen to the public from in- considerate alterations in our laws, are too obvious to be called in question ; and how far they have been owing to the defective education of our senators, is a point well [h) ''Ustsenatorineccssariummsse memorice est; sine quo parattis esse Tcmjpiihlicam ; idque late patet : — > senator nuUo pacto potest.^' De Leg. ffcmis hoc omnc scienticc, dUigenticci 3, IS. SECT. I.] OF THE STUDY OV THE LAW. 5 [wortliy tlie public attGntion. The common law of Eng- land lias fared like other venerable edifices of antiquity, which rash and unexperienced -svorkmen have ventured to new-dress and refine, with all the rage of modern im- provement. Hence frequently its symmetry has been destroyed, its proportions distorted, and its majestic sim- plicity exchanged for specious embellishments and fan- tastic novelties. For, to say the truth, almost all the per- plexed questions, almost all the niceties, intricacies, and delays, (which have sometimes disgraced the English, as well as other courts of justice,) owe their original, not to the common law itself, but to innovations that have been made in it by acts of parliament, "overladen" (as Sir Edward Coke expresses it) " with provisoes and additions, and ]nany times on a sudden penned or corrected by men of none or very little judgment in law" (e). This great and well-experienced judge declares, that in all his time he never knew two questions made upon rights merely depending upon the common law ; and warmly laments the confusion introduced by ill- judging and unlearned legislators. " But if," he subjoins, " acts of parliament were, after the old fashion, penned by such only as per- fectly knew what the common law was before the making of any act of parliament concerning that matter, as also how far former statutes had provided remedy for former mischiefs and defects discovered by experience ; then should very few questions in law arise, and the learned should not so often and so much perplex their heads to make atonement and peace, by construction of law, be- tween insensible and disagreeing words, sentences, and provisoes, as they do now." And if this inconvenience was so strongly felt in the reign of Elizabeth, it is easy to judge that the evil is greatly increased in our own times when our statutes have become so much more numerous and complicated. Again, what is said of gentlemen in general, and the {c) 2 Rep. Prcf. b INTRODUCTION. [propriety of their application to the study of the laws of their country, is equally applicable to the nobility of this realm, except only in the article of serving upon juries. On the other hand, they have peculiar provinces of far greater consequence and concern ; as they are not only by birth hereditary counsellors of the crown, but are also judges upon their honom* of the lives of theu* brother- peers {(l). The Eoman pandects will furnish us with a piece of history not unapplicable to our present purpose. Servius Sulpicius, a gentleman of the patrician order, and a cele- brated orator, had occasion to take the opinion of Uuintus Mutius Scoevola, the then oracle of the Roman law ; but, for want of some knowledge in that science, could not so much as understand even the technical terms of which his friend was obliged to make use. Upon which Mutius Scajvola could not forbear to upbraid him with this me- morable reproof, " that it was a shame for a patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned " {<'). This (d) Blackstono here adds some House of Lords are still, of course, further remarks on the same head, true; but, with reference to the par- grounded on the fact of the no- ticuhir subject under discussion, are bility, as members of the House of now somewhat beside the purpose. Lords, being tlie arbiters of the Indeed, long- before the alterations property of all their fellow-sub- in the constitution of the court of jects ; and that in the last resort. ultimate appeal, effected by the " In this their judicial capacity," Appellate Jurisdiction Act, 1876 he proceeds, " they are bound to (39 & 40 Vict. c. 59) — as to which, decide the nicest and most critical information will be found hereafter parts of the law. Their sentence in its proper place in this work (vide is final, decisive, irrevocable. No poi-t, bk. v. ch. vi.) — it had long appeal, no correction ; not even a ceased to be the practice for the review can be had ; and to their lay lords to take any practical part determination, whatever it maybe, in the proceedings on an appeal to the inferior courts of justice must the House from the decisiou of the conform, otherwise the rule of jus- other coiirts of justice, tice would no longer be uniform (r) Yi. 1, 2, s. 43. " Tiirpe esse and steady." pafricio, et nobdi, et caitsas oranti, These observations as to the Jus in quo versarctur ignorarey finality of the sentences of the SECT. I.] OF THE STUDY OF THE LAW. 7 [reproach made so deep an impression on Sulpicius, that he immediately applied himself to the study of the law, ■\vhereiu he arrived to that proficiency, that he left behind him about a hundred and four-score volumes of his own compiling upon the subject ; and became, in the opinion of Cicero, a much more complete lawyer than even Mutius Sccevola himself (/). It will be idle to recommend to our English nobility and gentry to become as great lawyers as Sulpicius ; though he, together with this character, sustained likewise that of an excellent orator, a firm patriot, and a wise in- defatigable senator : but the inference which arises from the story is this, — that ignorance of the laws of the land hath ever been esteemed clishonom-able in those who are entrusted by their country to maintain, to administer, and to amend them. Xor will some degree of legal knowledge be found in the least superfluous to persons of inferior rank, especially those of the learned professions. The clergy, in particular, besides the common obligations they are under in propor- tion to their rank and fortune, have also abundant reason, considered merely as clergymen, to be acquainted with many branches of the law, "\^'hieh are almost peculiar and appropriated to themselves alone. Such are the laws re- lating to advowsons, institutions, and inductions; to simony, and simoniacal contracts ; to uniformity, residence, and pluralities ; to tithes and other ecclesiastical dues ; to mar- riages, and to a variety of other subjects, which are con- signed to the care of their order by the provisions of particular statutes. To understand these aright, to dis- cern what is warranted or enjoined, and what is forbidden by law, demands a sort of legal apprehension, which is no otherwise to be acquired than by use, and a familiar acquaintance ^\ith legal writers.] To gentlemen of the faculty of physic the study of the law is attended with some importance, not only to com- (/) Brut. 41. 8 INTRODUCTION. plete their cliai'actcr for general and extensive knowledge, a character which their profession has always remarkably deserved, hut also to enable them to give more satisfactory evidence in a variety of cases in which they are liable to be examined as witnesses. The frequent combination of medical with legal considerations, upon inquiries relative to suspected murder or doubtful sanity, and other points of the like nature, has given birth to a sort of mixed science, known by the name of Forei>sic Medicine, or Medical Jurisprudence, which may be considered as common ground to the practitioners both of law and of physic. [But those gentlemen who profess the civil and eccle- siastical laws are of all men (next to common lawyers) the most indispensably obliged to apply themselves seriously to the study of our municipal laws. For the civil and canon laws, considered with respect to any intrinsic obli- gation, have no force or authority in this kingdom ; they are no more binding in England than our laws are binding at Rome. But as far as these foreign laws, on account of some peculiar propriety, haA'e in some particular cases been introduced and allowed by our laws, so far they oblige, and no farther ; their authority being wholly founded upon that permission and adoption. And in those cases wherein a reception has been tlms allowed to the civil and canon laws, if either they exceed the bounds of that reception, by extending themselves to other matters than are permitted to them, or if the judges proceed according to the decisions of those laws, in cases wherein it is controlled by the law of the land, the common law in either instance both may, and frequently does, prohibit and annul their proceed- ings {g) : and it will not be a sufficient excuse for them to allege that such or sucli a practice is warranted by the laws of Justinian or Gregory, or is conformable to the decrees of the Ilota or imperial chamber. For which reason it (ff) Hale, Hist. C. L. 2 ; Seldcii iu rietani ; o Eop., Caudrey'a case ; 2 Inst. 599, SECT. I.] OF THE STUDY OF THE I-AW. [becomes liiglilj necessaiy for everyone who would act with safety as a judge, or with prudence and reputation as an advocate, to know in what cases and how far the English laws have given sanction to the Roman ; in wliat points the latter are rejected ; and where they are Loth so inter- mixed and blended together as to form certain supple- mental parts of the common law of England, distinguished by the titles of the maritime and the ecclesiastical law.] The general use and necessity of some acquaintance with the common law being thus apparent, it may natu- rally be supposed that some provision would antiently have been made for this, as for other branches of education, in the universities of Oxford and Cambridge. The reverse, however, is the fact — the study of the common law having until recent times been wholly neglected in those venerable seats of learning, and having been cultivated from the earliest period in a different region. How this came to pass will appear from the following retrospect. [Sir John Fortescue, in his panegyric on the laws of England, (which was written in the reign of Henry the sixth,) puts a very obvious question in the mouth of the young prince, whom he is exhorting to apply himself to that branch of learning : " Why the laws of England, being so good, so fruitful, and so commodious, are not taught in the universities, as the civil and canon laws are ? " {//). In answer to which he gave what seems, with due deference be it spoken, a very jejune and unsatisfac- tory reason ; being, in short, that " as the proceedings at " common law were in his time carried on in three diffe- " rent tongues, the English, the Latin, and the French, " that science must be necessarily taught in those three " several languages ; but that in the universities all *' sciences were taught in the Latin tongue only ; " and therefore ho concluded " that they could not be conve- " niently taught or studied in our universities" (/). But without attempting to examine seriously the validity of {h) C. 47. {i) C. 48. 10 INTRODUCTION. [this reason, we perhaps may find out a better, or at least a more plausible account, why the study of the municipal laws was so long banished from these seats of science, than what the learned chancellor thought it prudent to give to his royal pupil. That antient collection of unwritten maxims and cus- toms, which is called the common law, however com- pounded, or from whatever fountains derived, had subsisted immemorially in this kingdom; and, though somewhat altered and impaired by the violence of the times, in great measure weathered the rude shock of the Norman Conquest. This endeared it to the people in general, as Avell because its decisions were universally known, as because it was found to be excellently adapted to the genius of the English nation. In the knowledge of this law consisted great part of the learning of those dark ages : it was then taught, says Mr. Selden, in the monas- teries, in ilic tinivcrsities, and in the families of the prin- cipal nobility {k) . The clergy, in particular, as they then engrossed almost every other branch of learning, so (like their predecessors, the British Druids) were peculiarly remarkable for their proficiency in the study of the law (/). Nulliis clencus nisi causidicus, is the character given of them soon after the Conquest, by William of Malmsbury {ni) . The judges therefore were usually created out of the sacred order (;?), as was likewise the case among the Normans (o) ; and all the inferior offices were supplied by the lower clergy, which occasioned their successors to be denominated clcrl:s, as tliey are to this day. But the common law of England, being not committed to writing, but only handed down by tradition, use, and (/.) In Fletam, 7, 7. cglises cathcdraulx, ct les aultrcs (/) Cfesar dc Bello Gal. G, VI. personnes qui o)it dignilez en saincte (/«) De Gest. Reg. 1. 4. cglise ; les ahbez, les prieurs con- («) Dugdalc, Orig. Jurid. c. 8. ventiiatclx, et les gouverneurs des (o) ^^ Les Jiigcs sont sages perso>u/es eglises, cj-f." — Grand Coustiiiuicr, et autenliques, — sicoinmc les arche- ch. 9. vesques, evesqucs, les chaiioines des SECT. I.] OF THE STUDY OF THE T,AW. 11 [experience, was not so heartily relislied by the foreign clergy, who came over hither in shoals during the reign of the Conqueror and his two sons, and were utter strangers to our constitution as well as our language.] And it was nearly brought to ruin by the new impulse given in the 12th century to the study of the system of Eoman law compiled by Justinian, and its consequent reception over all the west of Europe ; where, previouslj^, it had pos- sessed, in general, no authority, and had fallen almost into oblivion (/;) . [Hence that law became in a par- ticular manner the favourite of the popish clergy, who borrowed the method and many of the maxims of their canon law from this original. The study of it was intro- duced into several universities abroad, particularly that of Bologna, where exercises were performed, lectures read, and degrees conferred in this faculty, as in other branches df science ; and many nations on the continent, j ust then beginning to recover from the convulsions consequent upon the overthrow of the Eoman empire, and settling by degrees into peaceable forms of government, also adopted the civil law as the basis of their several constitutions ; blending and interweaving it among their own feodal customs, in some places with a more extensive, in others with a more confined authority (q). Nor was it long before the prevailing mode of the times reached England : for Theobald, a Norman abbot, being elected, in the year 1138, to the see of Canterbury, and (p) Hallam's Middle Ages, 3rd evidence that any sucli discovery vol. p. 513; 1 Bla. Com. 18; 1 took place. (See Hallam, ubi sup. ; Reeves, Hist. Eng. Law, p. 66. It and Histoii'e du Droit Homain au has been said (and the opiiuon is Moyen-Age, par M. De Suvigny, adopted by Blackstone) that this ch. xviii. s. 35, ch. xxii. ss. 164, revival was owing to the accidental 167.) discovery of a copy of the Pandects {q) Domat's Treatise of Law, c. at the captui'e of Amalfi. by the Pi- 13, § 9 ; Epistol. Innocent. IV. ia sans, about the year 1130. But M. Paris, a.d. 1254. there appears to be no sufficient 12 I>'TRODUCTION. [being extremely addicted to this new study, brouglit over with him in his retinue many learned proficients therein ; and among the rest, Eoger, surnamed Yacarius, whom he placed in the university of Oxford to teach it to the people of this country (r). But it did not meet with the same easy reception in England, where a mild and rational system of laws had been long established, as it did upon the continent ; and though the monkish clergy, devoted to the will of a foreign primate, received it with eagerness and zeal, yet the laity, who were more interested to pre- serve the old constitutions, and had already severely felt the effect of many Norman innovations, continued wedded to the use of the common law. King Stephen imme- diately published a proclamation, forbidding the study of the laws then newly imported from Italy (s) : but this, which was treated by the monks as a piece of impiety (/), though it prevented the introduction of the civil law pro- cess into our courts of justice, yet did not hinder the clergy from reading and teaching it in their own schools and monasteries. From this time the nation seems to have been divided into two parties ; on the one hand, the bishops and clergy, many of them foreigners, who applied themselves wholly to the study of the civil law and that of the Roman church (or canon law), which two systems now came to be inse- parably interwoven with each other ; and, on the other hand, the nobility and laity, who adhered with equal pertinacity to the old common law : both of them reci- procally jealous of what they were unacquainted with, and neither of them, perhaps, allowing the opposite system that real merit wliich is abundantly to be found in each. This appears, on the one hand, from the {>■) Gcrvas. DoroLeni. Act. Ton- and 8 Rep. Prcf. tif. Cantuar. Col. 1G65. (t) Joau. Sarisburiens. Polyciat. (.v) Kog. Bacon, citat. per Seldon 8, 22. in rietam, 7, 6 ; in Fortcsc. c. 33 ; SECT. I.] OF THE STUDY OF THE LAW. lo [s^ileen with wliich the monastic writers speak of our municipal laws upon all occasions {i<) ; and, on the other, from the firm temper which the nobility shewed at the famous parliament of Merton, when the prelates endea- voured to procure an Act to declare all bastards legiti- mate in case the parents intermarried at any time after- wards : alleging this only reason, because holy church (that is, the canon law,) declared such children legitimate ; but "all the earls and barons" (says the parliament-roll) " with one voice answered, that they would not change the laws of England, which had hitherto been used and ap- proved "(«p). And we find the same jealousy prevailing above a century afterwards, in the reign of Richard the second, when the nobility declared, with a kind of pro- phetic spirit, " that the realm of England hath never been unto this hour, — neither by the consent of our lord the king, and the lords of parliament, shall it ever be, — ruled or governed by the civil law " (y) , And of this temper between the clergy and laity many more instances might be given. While things were in this situation, the clergy, finding it impossible to root out the municipal law, began to witb- di-aw themselves by degrees from the temporal courts ; and to that end, very early in the reign of King Henry the thii'd, episcopal constitutions were published, for- bidding all ecclesiastics to appear as advocates in foro sceculari [z). Nor did they long continue to act as judges there, not caring to take the oath of office which was then found necessary to be administered, that they should in all things determine according to the law and custom of this realm [a) : though they still kept possession of the high {ii) Ibid. 5, 16 ; Polydor. Virgil, Merton, 20 Hen. 3, c. 9. Hist. 1, 9. (//) Seldcn, Jan. Anglor. 1. 2, (r) " i,'^ omncs comltes et haroncs § 43; in Fortesc. c. 33. una voce respondcnait, quod nohint (r) Wilkins, Concil. vol. i. pp. leges Anglue mutare, quce hucusque 574, 599. iisitafcc sunt ct (ipprohatct.'''' Stat. («) Selden in Fletam, 9, 3. 14 INTRODUCTION. [office of chancellor, and of the court of chancery attached to it, a court then of little juridical power ; and afterwards, as its business increased by degrees, they modelled the process of this coui't at their own discretion. But wherever they retired, and wherever their autho- rity extended, they carried with them the same zeal to introduce the rules of the civil, in exclusion of the muni- cipal law. This appears in a particular manner from the spiritual courts of all denominations, as well as from the high court of chancery before mentioned ; in all of which the proceedings were conducted in a course much con- formed to the civil law ; for which no tolerable reason can be assigned, unless that these courts were all under the immediate direction of the popish ecclesiastics, among whom it was a point of religion to exclude the municipal law ; Pope Innocent the fourth having forbidden the very reading of it by the clergy, because its decisions were not founded on the imperial constitutions, but merely on the customs of the laity. And if it be considered that our universities began about that period to receive their present form of scholastic discipline ; and that they were then, and continued to be till the time of the Refor- mation, entirely under the influence of the popish clergy ; this will lead us to perceive the reason why the study of the Roman laws was in those days of bigotry pursued with such alacrity in these seats of learning ; and why the common law was entirely despised, and esteemed little better than heretical And after the Reformation, many causes conspired to prevent its becoming a part of academical education : as, first, long usage and established custom, which, as in everything else, so especially in the forms of scholastic exercise, have great weight and authority. Secondly, the real intrinsic merit of the civil law, considered upon the footing of reason and not of obligation, which was well known to the instructors of our youth ; and their total ignorance of tlic merit of tlie common law, tliougli its SECT. 1.] OF THE STUDY OF THE LAW. ' 15 [equal at least, and perhaps an improvement on tlie other. But the principal reason of all that hindered the intro- duction of this branch of learning, was, that the study of the common law, being banished from our universities in the times of popery, fell into a quite different channel, and was wholly cultivated in another place. For, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice of it devolved of course into the hands of laymen ; who enter- tained upon their parts a most hearty aversion to the civil law, and made no scruple to profess their con- tempt, nay, even their ignorance of it, in the most public manner (b). But still, as the balance of learning was greatly on the side of the clergy, and as the common law was no longer taught, as formerly, in any part of the kingdom, it must have been subjected to many incon- veniences, and perhaps would have been gradually lost and overrun by the civil, — a suspicion well justified from the frequent transcripts of Justinian to be met with in Bracton and Fieta, — had it not been for a peculiar inci- dent, which happened at a very critical time, and con- tributed greatly to its support. The incident referred to was the fixing the Court of Common Pleas, the grand tribunal for disputes of pro- perty, to be held in one certain spot ; so that the seat of ordinary justice might be permanent and notorious to all the nation. Formerly this court, in conjunction with all the other superior courts, was held before the king's chief justiciary of England, in the aula reyh, or such of his palaces wherein his royal person resided ; and removed, with his household, from one end of the kingdom to the other. This was found to occasion great inconvenience to suitors ; to remedy which it was (in the thirteenth century) made an article of the great charter of liberties, both that of King John and that of King Henry the third, that " Common Pleas should no longer follow the (i) Forte.sc. dc Laud. LL. c. 25. 16 INTRODUCTION. [king's court, but be held in some certain place ; " in con- sequence of wliicb they were continuously thereafter held (a few necessary removals in times of the plague excepted) in the palace of Westminster only. This brought together the professors of the municipal law, who before were dispersed about the kingdom, and formed them into an aggregate body ; whereby a society was established of persons, who (as Spelman observes) addicted themselves wholly to the study of the laws of the land (c) ; and, no longer considering it as a mere subordinate science for the amusement of leisure hoiu^s, soon raised those laws to that pitch of perfection, which they suddenly attained imder the auspices of our English Justinian, King Edward the Eirst. In consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and, being excluded from Oxford and Cambridge, found it necessary to esta- blish a new university of their own. This they did by purchasing at various times certain houses (now called the inns of coiu't and of chancery) between the city of West- minster, (the place of holding the king's courts,) and the city of London ; for advantage of ready access to the one, and plenty of provisions in the other (d). Here exercises were performed, lectures read, and degrees were at length conferred in the common law, as at other universities in the canon and civil (r). The degrees were those of bar- risters, at first styled apprentices {apprenticii ad legem), who answered to the bachelors : and those of Serjeants [Hervicntes ad Irycm), who answered to the doctors of the imiversities (/). The crown seems to have soon taken under its protection this infant seminary of the common law ; and, the more effectually to foster and cherish it, King Henry the third {c) Glossar. 33i. law is now conferred either at [d] Fortesc. c. 48. The Inns of Oxford or Cambridge. (See Black. Court are the Inner Temple, the Com. by Christian, vol. 1, p. 392, Middle Temple, Lincoln's Inn, and in i/otis.) Gray's Inn. (J) As to barristers and scr- (r) But no degree in the c(iiio?i jeants, see post, bk. v. ch. iii. SECT. I.] OF THE STUDY OF THE LAW, 17 [in the nineteenth year of his reign, issued out an order, directed to the Mayor and Sheriffs of London, command- ing that no regent of any law schools within that city should, for the futui'e, teach law therein [g). The word law, or leges, being a general term, may create some doubt, at this distance of time, whether the teaching of the civil law, or the common, or both, was thereby re- strained. But in either case, it tended to the same end. If the civil law only was prohibited, — which is Mr. Selden's opinion (/<), — it was then a retaliation upon the clergy, who had excluded the common laAV from iJieir seats of learning. If the municipal law was also included in the restriction, (as Sir Edward Coke understands it, and which the words seem to import,) then the intention was evidently this, — by preventing private teachers within the walls of the city, to collect all the common lawyers into the one public university which was newly instituted in the suburbs (/) . In this juridical university, for such it is insisted to have been by Sir Edward Coke (/r), there were two sorts of collegiate houses ; one called inns of chancery, in which the younger students of the law were usually placed, " learning and studying (says Fortescue) the originals, and, as it were, the elements of the law ; who, profiting therein, as they grew to ripeness, were admitted into the greater inns of the same study, called the inns of court " (/). And in these inns of both kinds, he goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did use to place their childi-en, though they did not desire to have them thoroughly learned in the law, or to get their living by its practice ; and that in his time there were about two thousand students at these several inns, all of whom, he informs us, were //// nohUiiiin, gentlemen born. {g) " Xe aliqiiis scho'as rcr/cns dc (i) Sec 2 Inst, pl'ocnl. legibus in eadcm civiiate, de ccctcro {li) 3 Rep. pref. ibidem kffc's doeeat.^' (/) 0.41). {h) In Met. 8, 2. VOL. T. C 18 INTRODUCTION. [Hence, it is evident, that thougli under the influence of the monks our universities neglected this study, yet in the time of Henry the sixth it was thought highly necessary, and was the universal practice, for the young nobihty and gentry to he admitted into the inns of court and chancery, there to be instructed in the originals and elements of the laws. But by degrees this custom fell into disuse ; which seems principally owing to these rea- sons ; first, because in these societies all sorts of regimen and academical superintendence, either with regard to morals or studies, were thought impracticable, and there- fore entirely neglected : secondly, because persons of birth and fortune, after having finished their usual courses at the imiversities, had seldom leisure or resolution sufficient to enter upon a new scheme of study at a new place of instruction.] At the present day the inns of chancery have accord- ingly sunk into insignificance, and an admission to them is no longer of any avail to the student in his progress to the bar {di) . And even the resort to the inns of com-t is now very much confined to those to whom the knowledge of practice is absolutely necessary, that is, such as are intended for the profession. The inns of court still enjoy, however, their antient and exclusive privilege of conferring tlie rank or degree of harrisfcr at laic ; the possession of which constitutes an indispensable qualification for practising as counsel in the superior courts. No other means of obtaining this degree exist but that of becoming enrolled as a student in one or other of these inns (^?), and applying, after a (/«) The Inns of Chancery arc the Report of the Commissioners Clifford's Inn, Clement's Inn, New appointed to inqviii-e into their con- Inn, Staples' Inn, and Barnard's stitution, which was presented to Inn. Besides these, there were Parliament in the year 1855. formerly Fnrnival's Inn, the Strand («) The candidate for admission Inn, Lyon's Inn, andThavie's Inn. as a student, unless he shall have As to Inns of Chancery, see Rex v. passed a public examination at Barnard's Inn, 6 Ad. & El. 17, and some university within the British SECT. I.] OF THE STUDY OF THE LAW. 19 certain period, to its principal officers (or benchers) for a call to the har{o). As a qualification for the call, the student must (as the general rule) have kept commons for three years (i. e. twelve terms), by dining in the hall of the society into which he has obtained admission, at least six times in each term. If he be, at the same time, a member of one of the universities of Oxford, Cambridge, Dublin, London, Durham, St. Andrews, Aberdeen, Glas- gow, Edinbm'gh, or of the Queen's university in Ireland, three days in each term are sufficient {p) ; and by the present educational system it is further provided, that no student shall be called to the bar unless he shall, to the satisfaction of the Council of Legal Education, have passed a public examination, for the purpose of ascertain- ing his fitness to be so called, and have obtained from the said council a certificate of having satisfactorily passed such examination. And, accordingly, a public examina- tion, for all the inns collectively, periodically takes place, extending to all students admitted as such to any inn of com't on or prior to the 31st December, 1872, and who are desirous of submitting themselves to that test of pro- ficiency (y), and this examination is compulsory in the dominion.s, or for a commission in of the benchers as to calling to the ArmyorN'a%y, or for the Indian the bar or disbamng, lies to the Civil Ser%T[ce, or for the Consular judges in their capacity of visitors. Service, or for cadetships in the (See The King v. Lincoln's Inn, 4 three eastern colonies of Ceylon, B. k C. 8-5o.) Hong Kong, and the Straits Settle- [p) Consol. Eeg., May, 1885. ments, must in general pass a i)re- {q) Ibid. For the purpose of liminary examination testing his affording to students the means of knowledge of the English and obtaining instruction and guidance Latin languages, and of English in their legal studies, Professors history. (See Consol. Reg., May are appointed (by a joint council of 1885.) As to the relation which the Four Inns) of Jurisprudence, exists between the Inns of Court of Common Law, of Eqiiity, and and those who have become of the Law of Real and Personal members, see Ncate v. Denman, Property. And no student ad- Law Rep., 18Eq. Cas. 127; Man- nutted after the 31st December, isty V. Kenoaly, 21 W. R. 918. 1872, shaU. receive a certificate of (o) An appeal fi-om the decision fitness to be called to the bar unless c2 20 INTRODUCTION. case of all students admitted after the last-mentioned date. It is further to be observed that academical instruction in the principles of the law of England may be obtained in other schools than those of the inns of court ; and though no provision for instruction in such law was antiently made, as we have seen, at either Oxford or Cambridge, that deficiency has been long since redressed by the muni- ficence of private donors, who at each of these universities have founded professorships, with appropriate endowments for that purpose ; and in the various colleges affiliated to the university of London, and in the Victoria University of Manchester (formerly Owen's College), there are also now very effective schools of the common law ; likewise also in the various universities or colleges in Scotland and Ireland. he shall have passed a satisfactory usual for the student to obtain examination " in the Roman Civil admission as a pupil to the cham- Law, in the Law of Eeal and Per- bers of a barrister, "whereby he sonal Property, and also in Coimnon has opportunities of observing the Law and Equity." course of actual practice, as well It may be observed, further, that as the advantage of tuition in the legal education is also conducted principles of law. in private channels ; it being very SECT, II.] OF THE >ATIEE OF LAWS IN GENERAL. 21 SECTION II. OF THE NATURE OF LAWS IN GENERAL. [By tlie term Laws it is here intended to denote tlie rules of human action or conduct ; that is, the precepts hy which man, the noblest of all sublunary beings, a creature en- dowed with both reason and free-will, is commanded to make use of those faculties in the general regulation of his behaviour. Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a de- pendent being. A being, independent of any other, has no rule to pursue, but such as he jirescribes to himself ; but a state of dependence inevitably obliges the inferior to take the will of him on whom he depends, as the rule of his conduct ; not, indeed, in every particular, but in all those points w^herein his dependence consists. This prin- ciple, tlierefore, has more or less extent and effect, in pro- portion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently as man depends absolutely upon his Maker for everything, it is necessary that he should, in all points, conform to his Maker's will. This will of his IMaker is called the law of nature. For as God, Avhen he created matter, and endued it with a principle of mobilit}^, established certain rules for the per- petual du-ection of that motion ; so, when he created man, and endued him with free-will to conduct himself in all parts of life, he laid dovm certain immutable laws of human nature, whereby that free-will is in some degree regulated and restrained, and gave him also the faculty of reason to 22 INTKODUCTION. [discover the purport of those laws. Such, among others, are these principles — that Ave should live reputably, should hurt nobody, and should render to every one his due ; to which three general precepts Justinian has reduced the whole doctrine of law(r(f).] The constitution and frame of humanity are in this respect, as in all others, so contrived as to afford a strikicg proof of the benevolence of the great Creator. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each indi- vidual, that if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connexion of justice and human felicity, we ought to con- sider the law of nature not as made u^^ of a multitude of abstracted rules and precepts, referring merely to the fit- ness or unfitness of things, as some have vainly sm^mised, — but as graciously reduced to this one paternal precept, "tliat man should pursue his OAvn true and substantial hapiDiness." [This is the foundation of what we call ethics, or natural law ; for the several articles into which it is branched in our systems, amount to no more than demon- strating that this or that action tends to man's real happi- ness, and therefore concluding that the performance of it is a part of the laAv of natm-e ; or, on the other hand, that tliis or that action is destructive of man's real happiness, and tlierefore that the law of nature forbids it.] But though the real basis of the law of nature is a ten- dency to promote human happiness, and though to a certain extent this consideration affords a practical test, whether a given course of conduct be natm-ally right or not, yet the fallibility of human reason, and its inability to judge of the ultimate consequences of things, Avill in general preclude the application of such a test to particular (a) "Ji(yis pr(Cccp/a miit hac, has been rendered by Blaekstone, hoiieste vivcre, aUcrnm non Iccdcrc, vol. i. p. 40, /(OwwY/y, •n-liich scarcely sHum cuique tribiiere.^'' — List. 1. 1, 3. couveys thg full moiiumg', The word lioncstc in this pussago SECT. II.] OF THE NATURE OF LAWS IN GENERAL. 23 cases ; and accordingly it would seem not to have been the design of the all-wise disposer of the universe that man, even in his perfect state, should be left wholly to the guidance of his own understanding or conscience on the subject of moral duty ; but it is at all events certain that, since the Fall, his corrupt and clouded faculties have proved unequal to the task. [Ample light, however, is now afforded to him by the benign interposition of divine Providence ; which, in com- passion to the frailty, the imperfection and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus de- livered we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, v»hen revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by the unaided reason ; since we find that, until they were revealed, they were hid from the wisdom of ages. As, then, the moral precepts of this revealed law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical "wiiters, and denominated the natural law ; because one is the law of nature, expressly declared so to bo by Grod himself, the other is only what, by the as- sistance of human reason, wo conclude or infer to be that law. If we could bo as certain of the latter as we are of the former, both would have an equal authority ; but, till then, they can never be put in any competition together. Upon these two foundations, the law of nature and the law of revelation, depend all human laws ; that is to say, no human laws should be suffered to contradict these. There are, it is trne, a great number of indifferent point.'^ 24 INTRODUCTION. [in wliieL. Lotli llie divine law and the natural law leave a man at Hs own libertj^, but wliich are found necessary, for the benefit of society, to be restrained within certain limits. And herein it is that human laws have their pecu- liar force and efficacy ; for with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the divine law. To instance the case of murder : this is expressly forbidden by the divine, and demonstrably by the natural law ; and, from these prohibitions, arises the chief unlawfulness of this crime. Those human laws by which it is also interdicted, add comparatively but little to its moral guilt, or to the duty in foro conscientice of abstaining from its perpetration. Nay, if any human law should allow or injoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But, with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws, — such, for instance, as the importation of particular commodities from foreign countries, — here the inferior legis- lature has scope and opportunity to interpose, and to make that action unlawful which before and in itself was not so. But we are further to observe that man was formed for society ; and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor indeed has the courage to do it [h) . However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many ; and form separate states, commonwealths, and nations, entirely in- dependent of each other, and yet liable to a mutual inter- course. Hence arises a third kind of law to regulate this mutual intercourse, called "the law of nations," which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any ; but depends entirely upon the rules of natural law, or upon mutual compacts, {h) Puffcndoi-f, 1. 7, c, 1, coinparocT with Barboyrac'.s Conunentaiy. SECT. II.] OF THE XATTRE OF LAWS IN GENERAL. 2o [treaties, leagues, and agreements between tliese several communities ; in the construction also of which compacts we have no other rule to resort to, but the law of nature ; being the only one to wliieli all the communities are equally subject ; and therefore the civil law very justly observes, that quod natural^ ratio inter homines cojistituit, rocaturjus goifiiiui (c). Thus much it appeared necessary to premise concerning the law of nature, the revealed law, and the law of nations, before a more full exposition was given of the principal subject of this section, municipal law ; that is, the rule by which particular districts, communities, or nations, are governed. It is here called municijxtl law, in compliance with common speech ; for, though strictly that expression denotes the particular customs of one single munieipiiini or free town, yet it may with sufficient propriety be applied to any one state or nation, wliich is governed by the same laws and customs. The true meaning and force of the term (taken in this its ordinary sense) may be more fully developed thus ; it is " a rule of civil conduct prescribed by the supreme power in a state" (r/). Let us endeavour to explain the several properties of the municipal law, as they arise out of this definition. And, first, it is a )-uk' : not a transient particular order from a superior to or concerning a particular person; but some- thing permanent, uniform, and universal {e). Therefore a particular Act of the legislature to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a municipal law : for the operation of this Act is spent upon Titius only, and has no relation to the com- munity in general; it is rather a sentence than a law. (e) Ff. 1. 1, 9. ((■) An order affecting certain in- {(l) " Jm civile est quod qiihque dividuals only was, by the Koman siOi jjopuhis cunstidiity — lust. 1. jurists, termed 2^yivUe(jium. See 2, 1 . Austia on Jurisprudence, vol. i. IX 13. 26 INTRODUCTION. [But an Act to declare that the crime of which Titius is accused shall be deemed high treason : this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, "which we are at liberty to follow or not, as we see proper, and to judge upon the reasonableness or un- reasonableness of the thing advised : whereas our obedience to the law depends not upon our approbation, but upon the maker's v/ill. Counsel is only matter of persuasion, law is matter of injunction ; counsel acts only upon the willing, law upon the unwilling also. It is also called a rule, to distinguish it from a compact or agreement ; for a compact is a promise proceeding from us, law is a command directed to us. The language of a compact is, " I will, or will not do this ;" tliat of a law is, " thou shalt, or shalt not, do it." It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law ; but then the original of the obligation is different. In compacts, we ourselves deter- mine and promise what shall be done, before we are obliged to do it ; in laws, we are obliged to act without ourselves in the first instance determining or promising anything at all. Upon these accoimts law is defined to be " a ruley Municipal law is also " a rule of civil conduct.'" This distinguishes municipal law from the natural, or revealed, the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith. Tliese regard man as a creature, and point out his duty to Grod, to himself, and to his neighbour, consi- dered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour than those of more nature and religion : duties which ho has engaged in by enjoying the benefits of the common union ; and which amount to no more than that he do contribute, on his part, to the subsistence and peace of the society. It is likewise " a rv^a prescribed,''^ Because a bare re- SECT. II.] OF THE NATUKE OF LAWS IN GEXEKAL. 27 [solution confined in the breast of the legislator, -without manifesting itself by some external sign, can never be properly a law ; it is requisite that tliis resolution be noti- fied to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tra- dition and long practice, which supposes a previous pub- lication, and is the case of the common law of England. It may be notified i'ivd voce, by officers appointed to proclaim the law which has been made. It may, lastly, be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner ; not like Caligula, who (according to Dio Cassius) v,Tote his laws in a very small character, and hung them upon high pillars, the more effectually to ensnare the people. There is a still more unreasonable method than this, which is called the making of laws ex post facto ; v/hen, after an action (indifferent in itself) is committed, the legislator then, for the first time, declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law ; he had therefore no cause to abstain from it ; and all punishment for not abstaining must of consequence bo in such a case cruel and unjust. All laws should be there- fore made to commence in fiituro, and be notified before their commencement ; which is implied in the term "^;rc'- scribed.'^ But when this rule is in the usual manner noti- fied, or prescribed, it is then the subject's business to be thoroughly acquainted therewith ; for if ignorance of A\hat he miglit know were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity. But farther : municipal law is " a rule of civil conduct 28 INTRODUCTION. [prescribed hy the siiprewe ^miccr in a state." For legisla- ture is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms ; one cannot subsist without the other. This mil naturally lead us into a short inquiry concern- ing tlie nature of society and civil government ; and the natural and inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws. The only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society either natural or civil ; and that from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing uncon- nected state of nature, is too wild to be seriously admitted : and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which Avere effected by the means of single families. These formed the first natural society among themselves ; vrhich, every day extending its limits, laid the first though imper- fect rudiments of civil or political society ; and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it neccs- Earily subdivided itself by various migrations into more. Afterwards, as agricultm-e increased, which employs and can maintain a much greater number of hands, migra- tions became less frequent : and various tribes, wliich liad formerly separated, reunited again ; sometimes by compid- sion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its SECT. II.] OF THE NATURE OF LAWS IX GEXERAL. 29 [formal beginning from any convention of individuals, ac- tuated Ly their wants and their fears ; yet it is the sense of their weakness and imperfection that Iccejis mankind together ; that demonstrates the necessity of this union ; and that therefore is the solid and natural foundation, as well as the cement, of civil society. And this is what we mean by the original contract of society ; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together ; namely, that the whole should pro- tect all its parts, and that every part should pay obedience to the will of the whole ; or, in other words, that the com- munity should guarantee to each individual member the enjoyment of certain liberties and advantages or (as they are generally termed) rights, and that (in return for this protection) each individual should submit to the laws of the community; without wliich submission of all, it was impossible that protection could be certainly extended to any. For when civil society is once formed, government at the same time results of course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But, as all the members which compose this society were naturally equal, it may be asked in whose hands are the reins of government to be entrusted ? To this the general answer is easy ; but the application of it to particular cases has occasioned one half of those mischiefs, which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in those persons in whom those qualities are most likely to be found, the perfection of which is among the attributes of Ilim who is emphatically styled the 30. INTRODUCTION. [Supreme Being; the three grand requisites, that is to say, of wisdom, of goodness, and of power; wisdom, to discern the real interest of the community ; goodness, to endeavour always to pursue that real interest ; and strength or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well- constituted frame of government. How the several forms of government we now see in the world at first actually began, is matter of great un- certainty, and has occasioned infinite disputes. It is not intended here to enter into any of them. However they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura suinml imperii, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the foundei's of such respective states, either expressly given, or collected from their tacit approbation) the qua- lities requisite for supremacy — wisdom, goodness, and pOAver — are the most likely to be found. The political writers of antiquity will not allow more than three regular forms of government ; the first, Avhen the sovereign power is lodged in an aggregate assembly consisting of all the free members of a community, Avhich is called a democracy ; the second, when it is lodged in a council, composed of select members, and then it is styled an aristocracy ; the last, when it is entrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three. By the sovereign power, as was before observed, is meant the making of laws ; for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administra- tion of tlio government may put on. For it is at any time in the option of the legislature to alter that form SECT. II.] OF THE NATURE OF LAWS IN GENERAL. 31 [and administration by a new edict or rule, and to put the execution of tlie laws into whatever hands it pleases ; by constituting one, or a few, or many executive magis- trates : and all the other powers of the state must obey the legislative power in the discharge of their several functions, or else the constitution is at an end. In a democracy, where the right of making laws resides in the people at large, public virtue or goodness of in- tention is more likely to be found, than either of the other qualities of government. Popidar assemblies are frequently foolish in their contrivance, and weak in their execution ; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found, tlian in the other frames of government ; being composed, or intended to bo composed, of the most ex- perienced citizens : but there is less honesty than in a republic, and less strength than in a monarchy. A mon- archy is indeed the most powerful of any; for, by the entire conjunction of the legislative and executive powers, all the sinews of government are knitted together, and united in the hand of the prince : but then there is im- minent danger of his employing that strength to impro- vident or oppressive pm-poses. Thus these three species of government have, all of them, their several perfections and imperfections. Demo- cracies are usually the best calculated to direct the end of a law ; aristocracies to invent the means by which that end shall be obtained ; and monarchies to carry those means into execution. And the antients, it was observed, had in general no idea of any other permanent form of government but these three ; for though Cicero declares himself of opinion ''esse optime constifxtam rcmpuhlicam, qme ex trihus (jenerihns UUs, rcgaU, opfinw, et popuhri, sit modice confusa " (/) ; yet Tacitus treats this notion of a (/) In his fragments Dc Hop. 1. 2. 32 INTRODUCTIOX. [mixed government, formed out of them all, and j)artaMng of tlie advantages of eacli, as a visionary whim, and one that, if effected, could never be lasting or secure {g). But, happily for us of this island, the British consti- tution has long remained (and may it long continue !) a standing exception to the truth of this observation. For as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy : and as the legislature of the kingdom is en- trusted to three distinct powers, entirely independent of each other ; first, the sovereign ; secondly, the lords spiri- tual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property ; and, thirdly, the House of Commons, freely chosen by the people from among them- selves, which makes it a kind of democracy ; and as this aggregate body, actuated by different springs, and atten- tive to different interests, composes the British parliament, and has the supreme disposal of every thing ; there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two ; each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous. Here then is lodged the sovereignty of the British constitution ; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the thi'ee great qualities of government so well and so happily united. If the supreme power were lodged in any one of the thi'ee branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy : and so want two of the three (^) " Cunclas nationcs ct ttrhcs qtiam evenirc, vel, si crcuit, haud poptitus, aict primores, aut siiigidi diuturna esse potest ^ — Auii.lib.lv. reyunt : delecta ex his ct constiti/ta c. 33. rcip>ihli(/ ; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down : another directory ; whereby the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, remedial ; whereby a method is pointed out to re- cover a man's private rights, or redress his private wrongs : to which may be added — in case of a law by which any public wrong is prohibited, or public duty enjoined — ■ a fourth, viz., the part which contains the miiction, that is, the provision for enforcing or promoting its observance. With regard to the first of these, the dcclaratori/ part of municipal lavr, this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves a more particular explication. Those rights then which may be called natural rights, such as life and liberty, need not the aid of human laws to be eflectually invested in every man ; neither do they receive any material increase of strength Avhen declared by the municipal laws to be inviolable. On the contrary, no human legislature can justifiably abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfei- ture. Neither do natural duties (such, for instance, as the worship of God, the maintenance of children, and the like) receive a much stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes i)iala in se, such as murder, theft, and perjury ; which contract but little additional turpitude from being declared unlawful by the legisla- ture of a state. For that legislature in all these cases acts only, as was before observed, in subordination to the great Lawgiver, transcribing and publishing his precepts. So that, upon tlu^ whole, the declaratory part of the 1)2 36 INTllODUCTIOX. [municipal law has very little force or operation with regard to actions that are naturally and intrinsically right or wrong. But, with regard to things in themselves indifferent, the case is entirely altered. These become either right or wrong, just or unjust, duties or misdemeanors, according as tlie municipal legislator sees proper for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. And sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties, — obedience to superiors is the doctrine of revealed as well as natural religion : but who those superiors shall be, and in what circumstances, or to what degrees, they shall be obeyed, it is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide in what cases the seizing another's cattle shall amount to a trespass or a theft ; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent. Thus much for the declarator i^/ part of municipal law : and the dlredorij stands much upon the same footing : for this virtually includes the former, the declaration being usually collected from the direction. The law that says "thou shalt not steal," implies a declaration that stealing is a crime. And we have seen that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit them. The roncdial part of a law is so necessary a consec[uence of the former two, that laws must be very vague and im- perfect without it. For in vain would rights be declared, in vain directed to be observed, if there Avere no method of recovering and asserting those rights, when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law. "When, for instance, the declaratory part of the law has said, "that SECT. 11.] OF THE XATl RE OF LA\\ .S IX GEXERAT,. 37 [the field or inheritance, Avhich belonged to Titius's father, is vested by his death in Titins ; " and the direc- tory part has " forbidden any one to enter on another's property Avithout the leave of the owner : " if Gains after this will presnme to take possession of the land, the reme- dial part of the law will then interpose its office ; will make Gains restore tlie possession to Titius, and also pay him damages for the invasion. With regard to the sanction of laws it is observed, that human legislators have for the most part chosen to make it rather vlndlcatonj than remnnemtori/, or to consist rather in punishments, than in actual particular rewards. Because, in the first place, the quiet enjoyment and pro- tection of all our civil rights and liberties, which arc the sure and general consequence of obedience to the muni- cipal law, are in themselves the best and most valuable of all rewards ; because, also, were the exercise of every virtue to be enforced by the proposal of particular re- wards, it were impossible for any state to furnish stock enough for so profuse a bounty ; and farther, because the dread of evil is a much more forcible principle of human actions than the prospect of good (/). For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law ; but do con- stantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the dis- cretion of the judges, and those who are entrusted with the care of putting the laws in execution. Laws attended with a vindicatory sanction are said to compel and ohligc : not that by any natural violence they so constrain a man, as to render it impossible for him to (() Locke on the Hiunan Understanding, b. 2, c. 21. 38 INTRODUCTION. [act otlierwise than as they direct, -wliioli is the strict sense of obligation ; but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law ; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty ; for rewards, in their nature, can only per made and allure ; nothing is compuhonj but punishment.] It is held by the soundest ethical writers, that there is also an obligation in point of conscience to observe the laws. It is related of Socrates that he made a promise with himself to observe the laws of his country : and this is nothing more than what every man ought both to pro- mise and perform ; and he ought also to promise that he will exert all his power to compel others to obey them (/.■). It has, indeed, been argued that this principle must be understood with some restriction, and that though it holds as to rights determined by law to exist, as to natural duties, and as to offences mala in se, yet that, with regard to those laws which enjoin only positiro duties, or forbid things not mala in se, but prohibit a merely, without any intermixture of moral guilt, conscience is no further con- C3rned than by directing a submission to the penalty imposed for a breach of those laws (/). The distinction, however, will perhaps hardly bear the test of a close inquiry. To form a true judgment on the subject, it is necessary to take into consideration that the true prin- ciple both of moral and of positive laws is in effect the same, viz. utility, or the general welfare, and that disobedience to either sort of precept nmst be presumed to involve in it some kind of mischievous consequence. fSupposing the existence of a law of the merely positive (/.) Note by Christian, to 1 Bl. (0 1 Bl. Com. 58. Com. p. 59. .SECT. 11.] Ol- TliK .NAl'LKE OF hA\V:S IN CiKNEHAL. '6d class, wLich liappeus to be considored by the public at large as useless or even detrimental to society, yet a conscientious man will feel himself bound to observe it, if for no other reason, yet for this, that his taking the contrary course miglit eucom-age others to violate laAvs of a more benefieial character, and lessen the general reverence for the institu- tions of his country. 40 INTIIODUCTUN. SECTION III. OF THE LAWS OF ENGLAND. Ouii plan now leads us to investigate the different parts of the laws of England ; but before commencing this subject, connected as it is to some extent with the civil and canon laws, a general account of what is meant by those laws may be here desirable. [By the ciril law is generally understood the municipal law of the Roman empire, as comprised in the Institutes, the Code, and the Digests of the Emperor Justinian, and the Novel Constitutions of himself and some of his suc- cessors ; and of this body of law the following is a short and general account [a]. The Itoman laws — founded, first upon the regal con- stitutions of theu' antient kings, next upon the twelve tables of the decern riri, then upon the laws or statutes enacted by tlie senate or people, the edicts of the prcetor, and the respoiisa prndoifiiin, or opinions of learned lawyers, and lastly upon the imperial decrees, or constitutions of successive emperors, — had grown to so great a bulk, or, as Livy expresses it, " faiii i)nmenHus aliarum supci- alias acervatanini legitin ciiDiu/ns '' (b), ihsit they were computed to be many camels' load, by an author who preceded Justinian (c) . This was in part remedied by the col- {(i) Ample iirformation on this by numerous modern writers, subject will be found in Vinuius amongst whom Ave will content on the Institutes, Voct on the ourselves with mentioning the Pandects, Perezius on the Code, names of Kent and Savigny. and in the works of Byukershoeck, {h) L. 3, c. 34. Heineccius, and Pcjtliier ; and their {r) See Taylor's Elements of researches have been followed up Civil Law, 17. SECT. III.] OF VIH'. LAWS Ol-' ?:NGI.AND. 41 [lections of three private lawyers, Gregorius, Hermogenes, and Papirius ; and then by the Emperor Theodosius the younger, by whose orders a code was compiled a.d. 438, being a methodical collection of all the imperial constitu- tions then in force ; which Theodosian code was the only book of civil law received as authentic in the western part of Europe till many centuries after {d) ; and to this it is probable that the Franks and Groths might frequently pay some regard, in framing legal constitutions for their newly erected kingdoms : for Justinian commanded only in the eastern remains of the empire ; and it was under his auspices that the present body of civil law was compiled and finished by Tribonian and other lawyers, about the year 533. This consists of, 1, The Institutes, which contain the elements or first principles of the Iloman law, in four books (r). 2. The Digests, or Pandects, in fifty books; containing the opinions and writings of eminent lawj-ers, digested in a sj'stematical method. 3. A New Code, or collection of imperial constitutions, in twelve books ; the lapse of a vN'hole century having rendered the former code of Theodosius imperfect (/). 4. The Novels, or new con- stitutions posterior in time to the other books, and amount- ing to a supplement to the code; containing new decrees of successive emperors, as new questions happened to arise (y).] (f/) Tliis is at least true of the Ulpian. The manuscript of Gaius ■western part of Eiu-ope generally, was discovered accidentally by as the code of Justinian was not Niebuhr, in the year 1816, whUe recognized there generally till the at work in the library at Verona, twelfth centmy. But that code (/) Itisculled the "New Code," seems to have been recognized by not in reference to the Theodosian the Roman Church, at least, much code, but to a code which was pro- earlier. See Ilallam's Mid. Ag. niulgatcd by Justinian, but sup- vol. iii. p. .513 ; and " Histou-e du pressed by him on the publication Droit Eomain au Moyen-Age, par of the New Code. M. de Savigny," ch. xxii. ss. 164, {(/) It is remarked by LordMac- 167. kenzie in his studies on Koman {(■) The Institutes of Justinian Law (p. 2o), that Justinian him- are chiefly founded on those of self is the author of most of the Gaius, and on the fragments of Novels, viz., of 154 out of 168. 42 INTKODUCTIOX. These form the body of Roman law, or corpus Jit i-is civilis, as published about the thne of Justinian ; which, how- ever, fell soon into neglect and oblivion, until, in the twelfth century, the policy of the Roman ecclesiastics began to give new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded. [The ca)io)i law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pre- tends to have, the proper jurisdiction over(/). This is compiled from the opinions of the antient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the holy see ; all Avhich lay in the same disorder and confusion as the Roman civil law, till, about the year 115], Gratian, an Italian monk, in imitation of Justinian's Pandects, reduced the ecclesiastical constitutions also into some method, in three books, Avhich he entitled Concordia Discordantium Canouum, but which are generally known by the name of Deer ct ton Gratiani (/.•). These reached as low as the time of Pope Alexander the third. The subsequent papal decrees, to the pontificate of Grregory the ninth, Avere published in much the same method, under the auspices of that pope, about the year 1230, in five books, entitled DecretaUa Gregorii Koiii. A sixth book was added by Boniface the eighth about the year 1298, which is called Sexfus Decretedium. The Clementine Constitu- tions, or decrees of Clement the fifth, were in like manner authenticated in 1317 by his successor John the twenty- second, who also published twenty constitutions of his OAvn, (j) A disquisition on this subject, the Preface to his "Ecclesiastical including our national canon law, Law," p. xx., that the "decrees" will be found in Reeves's Hist. Eng. of the canon law, having first been Law, 4th vol. chapters xxiv., XXV. ; collected hj Ivo in the year 1114, and see Robertson's Chas. V. vol. i. were afterwards "j)olished and n. 24. perfected by Gratian, a monk of (/r) It is said by Dr. Burn, in Bononia, in the year 1149." .SECT. HI.] OF TiJJ; LANN.S t)i-' KNCiJ-AM). 43 [called the E.vtravagcudes Joanuis ; all ■which iu Eome measure answer to the novels of the civil law. To these have Leen since added some decrees of later popes, in five hooks, called E.clravafjardcs Communes : and all these together, Grratian's Decree, Gregory's Decretals, the Sixth Decretal, the Clementine Constitutions, and the Extrava- gants of John and his successors, form the corpus Juris canonici, or hodj of the Roman canon law. Besides these pontifical collections, which, during the times of popery, were received as authentic in this island as well as in other parts of Chi'istendom, there is also a kind of national canon law, composed of legatine and j^ro- vincial constitutions, and adapted only to the exigencies of our own church and kingdom (/). The legatine constitu- tions are ecclesiastical laws, enacted in national synods held under the Cardinals Otho and Othobon, legates from Pope Grregory the ninth and Pope Clement the fourth, in the reign of king Henry the thii'd, about the years 1220 and 1268 [)n). The jJi'ovincial constitutions are principally the decrees oi 2)rovincial synods, held under divers archbishops of Canterbury, from Stephen Langton, iu the reign of Henry the third, to Henry Chichele, in the reign of Henry the fifth ; and adopted also by the province of York iu the reign of Henry the sixth (;/). At the dawn of the Eeformation, it was enacted by statute 25 Hen. VIII. c. 19, that a review should be had of the canon law ; and that, till such review should be made, all canons, constitutions, ordinances, and synodals provincial, being then already made and not repugnant to the law of the land or the king's prerogative, should still be used and executed (o).] (/) See Hist. Eng-. Law, by on the provincial constitutions. (See Eeeves, vol. ii. p. 78. Eeeves, vol. iv. p. 117.) (w) On these constitutions Athon {v) See also three temporary sta- is the chief commentator. See tutes to the same effect, viz., 27 Pref. to Burn's Ecclesiastical Law, Hen. 8, c. 15 ; 35 Hen. 8, c. 16, and p. xxii. 3 & 4 Edw. 6, c. 11. The2o Hen. {h) Ibid. Lyudwode's Proviu- 8, c. 19, was revived and confirmed ciale is the chief work of aiithority by 1 Eliz. c. 1. 44 INTKODUCTIOX. And, as no siicli review has yet been perfected (7;), it would seem tliat upon tliis enactment depends the authority of the canon law in England, the limitations of which appear upon the whole to be as follows, — that no canon contrary to the common or statute law, or the prerogative royal, is of any validity ; that, subject to this condition, the canons made anterior to the parliamentary provision above men- tioned, and adopted into our system (for there are some which' have had no reception among us) , are binding both on clergy and laity ; but that canons made since that period, as they have had no sanction from parliament, are, as regards the laity at least, of no force {q). [Accordingly, with regard to those canons in particular which were enacted by the clergy in convocation under James the first, in the year 1G03, and which were never confirmed in parliament, but sanctioned by the king's charter only (r), it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the antient canon law, but are introductory of new regulations, they do not bind the laity, whatever regard the clergy may be bound to pay them («).] To proceed, then, to the subject now before us, we [p) See Watson's CI. Law, ch. siastical treated upon by the Bislioii iii. p. 17, Srd ed. ; Burnet's Hist. of London, President of the Convo- Eeform, vol. ii. p. 197 ; Adams' cation, tSrc, and agreed upon with Relig. World, vol. i. p. 411. the Eug's Majesty's Licence, in {q) See Caudrcy's case, 5 Rep. their Synod begun at London, a.d. xxxii. ; 12 Rep. 72; Co. Litt. 344 a; 1G03, in the first year of King Pref. to Burn's Ecc. Law ; Wolfer- James." They constitute the pre - stan V. Bishop of Lincoln, 2 Wils. sent standard of the Church of 1 74 ; Middleton v. Croft, Stra. 1056 ; England. 2 Atk. G59, 6G9 ; Alston v. Atlay, (.s) See Middleton v. Croft, ubi 7 Ad. & El. 289. sup. ; More v. More, 2 Atk. 158 ; (;•) Middleton r. Croft, ubi sup. Bishop of St. David's v. Lucy, These are 141 in number, and arc Carth. 485 ; Rex ^•, Bishop of a collection out of the several pre- Lichfield, 2 W. Bla. 968 ; Mar- ceding canons. They are intitided shall v. Bishop of Exeter, Law " Constitutions and Canons Eccle- Rep., 3 H. of L. Cas. 17. SECT. III.] OF THE I,A^^■S OF ENGLAND. 4-5 may, for our present purpose, divide the " municipal law of England," or the rule of civil conduct prescribed to the iuliahitants of this kingdom, into two kinds : the lev non scfipta, the unwritten (or common) law; and the /ex scripta, the written (or statute) law. j^With regard to our " unwritten " law, it is not, however, to he understood that the whole of it is at present merely oraJ, or communicated to us from the former ages to the present solely by word of mouth. It is true, indeed, that in the profound ignorance of letters which formerly over- spread the whole western world, all laws were entirely traditional ; for this plain reason, because the nations among which they prevailed had but little idea of writing. Thus the British as well as the Gallic druids committed all their laws as well as learning to memory (/) ; and it is said of the primitive Saxons here, as well as their brethren on llie continent, that leges sold mcinorid et usu retine- hant{u). But with us, at present, the monuments and evidences of our legal customs are contained in the records of the several cotu'ts, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. And these parts of our law are styled leges non seripfa', because their original institu- tion and authority are not set down in writing, as acts of parliament are ; but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom. Om" antient lawyers, and particularly Fortescue (x), insist with abundance of warmth, that these customs are as old as the primitive Britons, and continued down, through the several mutations of government and inliabit- anis, to the present time, unchanged and unadulterated. This may be the case as to some ; but the assertion (as observed by Selden) nmst be understood with many grains {t) Ctes. de B. G. lib. G, c. 13. M C. 17. {>() Spelm. Gl. 3G2. 46 INTRODUCTIOX. [of allowance ; and ouglit only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another ; though douhtless the Romans, the Piets, the Saxons, the Danes, and the Normans, must have insensibly introduced and incor- porated many of their own customs with those that were before established (//) ; thereby, in all probability, improving the textm^e and wisdom of the whole by the accumulated wisdom of divers particular countries. Our laws, saith Lord Bacon, are mixed as our language (~) ; and as our language is so much the richer, the laws are Ihe more complete. And indeed our early historians do positively assure us, that our body of laws is of this compounded nature. For they tell us that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile a Dom-hoc or Liber Judicialis, digesting them into one uniform code of laws for the general use of the whole kingdom ; and this book is said to have been extant so late as the reign of king Edward the fourth, but to have been since lost ; it pro- bably contained tlie principal maxims of the common lav/, the penalties for misdemeanors, and the forms of judicial proceedings {a) . Tlie irruption and establishment of the Danes in Eng- land, which followed soon after, introduced new customs, {>/) Mr. Spence, in his " Sistori/ Hist. Ang.-Sax. vol. ii. p. 149, 6th of the Equitable Jurisdiction of the ed.) considers the dom-boe as the Court of Chancery,^'' insists that the same "with the laws of Alfred, in most important part of the common the Leg"es Anglo- Sax. published law is a legacy from the Romans. by Wilkins. A docnment called (r) See his proposals for a digest. ^^ Alfred's Booms " was printed by {(>) 1 Bl. Com. 65. In the the Record Commissioners in 1810, opinion, however, of ]\Ir. Hallam bnt Sir F. Palgrave remarks, that (Midd. Ages, vol. ii. p. 402, 7th it is insufficient to support the as- cd.) there is no sufficient proof sertions of Blackstone as to Alfred's that Alfred "compiled a dom-boc, achievements as a law compiler or general code for the government (Rise, itc. of the British Common- of his kingdom." Turner (in his wealth, c. 11). SECT. 111.] OF THE LAWS OF ENGEAXl). 47 [and caused tins code of Alfred in many provinces to fall into disuse, or at least to bo mixed and debased with other laws of a coarser alloy; so that about the beginning of the eleventh century, there were three principal systems of laws prevailing in different districts : 1. The Mevcoi- Lage, or Mercian laws, which were observed in many of the midland counties, and those bordering on the princi- pality of "Wales, the retreat of the antient Britons ; and which were therefore very probably intermixed with the British or Druidical customs. 2. The West-Saxon Lage, or laws of the West-Saxons, which obtained in the counties to the south and vrest of the island, from Kent to Devon- shire. These were probably much the same with the laws of Alfred above mentioned ; being the municipal law of far the most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane-Lage, or Danish law, which was principally maintained in the rest of the midland counties, and also on the eastern coast, (the part most exposed to the visits of the Danes,) the very northern provinces being at that time imder a distinct government {h). Out of these three systems of laws, Roger Iloveden and Eanulphus Cestrensis inform us, that king Edward the Confessor extracted one uniform law, or digest of laws, to be observed throughout the whole kingdom ; though the work had also been projected and begun by his grand- father king Edgar. And indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nation?, which were formed from an assemblage of little provinces governed by peculiar customs (r). However, these undertakings of [h) 1 El. Com. 65. For this he collected hy Abnzo the tenth, in cites Sir M. Hale, Hist. C. L. c. 3. the year 1250, and the coUectiou (f) Blackstone (vol. i. p. 66) in- of the land^s lagh in Sweden made stances the Portug-uese code com- aboiit the same period, and he cites pleted in the fifteenth century, the Mod. Un. Hist. xx. 211 ; xxii. 135 ; Spanish oodo entitled Zr?s Pftrfifla!', xxxiii, 21, 58. 48 IXTKODUCTION. [king Edgar and Edward the Confessor were probably no more than a new edition, or fresli promulgation, of Alfred's code or Dom-boc, with such, additions and im- provements as the experience of a century and a half had suggested. For Alfred is generally styled by the same historians the kgiim Anglicanarum conditor, as Edward the Confessor is the restitutor.'] But whatever may be thought of these points of legal history or tradition, there can be no doubt that, under the first princes of the Norman line, our ancestors were engaged in a frequent struggle to maintain certain insti- tutions known by the appellation of the *' laws of Edward the Confessor," and which Avould seem to have been a body of laws or customs observed (though not first esta- blished) in the reign of that monarch [d) ; and it is certain that the Norman princes made frequent engagements to restore and maintain these laws as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. Nor is it unreasonable to believe that these, or some other remains of the law established in this country before the Conquest, gave rise (in part at least) to that collection of maxims and customs which is now known by the name of the common law [it) ; a name either given to it in contradistinction to other laws, — as the statute law, the civil law, the law merchant, and the like — or more probably, as a law common to all the realm. To assign however to the common law no other origin-al than this, would be to take an imperfect and erroneous view of the subject. Our system of tenures was chiefly (rf) The laws so called, contained the historian of the Middle Ages, in Lamhard and Wilkins, are con- though inclined in general to as- sidered spui'ious. (See Hallam's cribe our common law to a date Midd. Ages, vol. ii. p. 444, 7th not much antecedent to the publi- edit.) cation of Glanville (temp. Hen. 2), (e) That much of our common yet admits that ' ' some features of it law was in force in this island " may be distinguishable in Saxon before the Conquest is maintained " times." (Hallam, ubi sup., pp. both by Hale and Blackstonc. And -IGG, 408, 7th ed.) SECT. III.] OF THE LAWS Of EXGI.AXI). ' 49 constructed, if not first founded, by the Norman con- queror (/) ; our antient judicial forms and pleading?, while they have notliing in common with the Anglo- Saxon style, are in striking conformity with the Norman ; and it has been remarked with great truth, that the general language of our jurisprudence and its terms of art are exclusively of French extraction {rj). We can- not hesitate therefore to recognize in the antient law of Normandy another parent of the common law, and one from which it has inherited some of its most remarkable featm-es (//). But though these are the most likely foundation of this collection of maxims and customs, yet the maxims and customs, so collected, are of a higher antiquity than memory or history can reach (/) : nothing being more difficult than to ascertain the precise beginning and first spring of an antient and long-established custom. For which reason it is that, in our law, the goodness of a custom depends upon its ha\'ing been used time out of mind ; or, in the solemnity of our legal phrase, " time whereof the memory of man runneth not to the contrary," (/) 2 Bl. Com. 48 ; Henry, Hist. c. 6, who, jealous for the originality of Eng. vol. vi. pp. 10, 18 ; Hist. of the English law, argues from Eng. Law, by Reeves, vol. i. p. 28, the posteriority in date of the Grand 3rd edit. ; Hallam's Midd. Ages, Coustumier, that, in most of the vol. ii. p. 408. particulars where the conformity is [g] " Omnia vocahula, qucc vo- to be traced, the merit of the first cabula _ artis dicuntur, quihusque introduction presumably belongs to hodie in foro Angli utuntur, Gal- England, though he admits the lica sunt; niliilque cum Saxonica reasonableness of assigning it in lingua habent affine.^^ — Craig, Jus others to Normandy. It does not, Feud. lib. i. s. 7. however, seem very material in (/() The similarity of the English which of the two countries they and Norman laws is strongly illus- were first established. They have trated by a comparison of the Grand at all events no resemblance to the Coustumier of Normandy (compiled Anglo-Saxon institutions, and are as late as Rid. and probably later), evidently due to lawyers of the with our Glanville, who wrote in Norman school, the reign of Hen. II. This subject (/) Hale, ubi sup. c. 3. i.s discussed by Hale in Hist. C. L. VOL. I. K 50 l^^TRODUCTION. a plirase wliicli refers, however, (it is to bo observed,) in our law to a fixed era, and means tliat the custom must aj^pear (for anything that can be proved to the contrary) to have been in use before the commencement of the reign of Eichard the first (k). It is this antiquity that gives it its weight and authority ; and of this nature are the maxims and customs which compose the common law, or lex non scnj)fa, of this kingdom. It has already been remarked that the Romans are amongst the many founders of our common law, by the gradual incorporation of their own customs with those they found established here {/) ; but besides this, there are subjects, — viz. matters maritime and such as relate to the Church {)n), — with regard to which some of the principles of the civil and canon law have been introduced into the law administered by those of our courts w^hich have juris- diction to entertain such matters. As to the former of these subjects, the distinction which exists between pro- ceedings in jjcrsonam and proceedings in re/n will serve to illustrate our meaning. For in case of a collision between two vessels on inland waters, all that the owner of the one can do is to sue the owner of the other and recover damages for the injury he has suffered. But if the collision took place on the "high seas" over which the Admiralty juris- diction extends, the owner of the injured vessel might (by a procedure borrowed from the civil law) sue the vessel in fault, cause it to be arrested, and, unless released on bail, sell it to satisfy his judgment (;?). Thus, also, — in matters relating to the Church, — the ecclesiastical courts may in certain cases pronounce sentence of cxconimiinicatio)}, a (A) See the preamble to stat. 2 & 25 & 26 Vict. c. 26, s. 12, and Uni- 3 Will. 4, c. 71 ; Co. Litt. 116 a ; versitj^ Commission Report, p. 5. Jenkins v. Hai-vey, 5 Tyi'W. 396. [n] See Supreme Court of Judi- (/) Vide sup. p. 46. cuture Act, 1875 (38 & 39 Vict. c. (m) Blackstone (vol. i. p. 83) 77) ; App. A., Part I., No. 11, Or- refers also to the military and the ders and Rules of 1883, "Writ of Wiiversiti/ courts. The former are Summons in Admu'alty action in out of use. As to the latter, see rem.'''' SEf'T. 111.] OF Tin-: LAA\S OF KNOLAXD. 51 power derived from the cauon law and still exercisable nuder proper restrictions as defined by statute (o). [It is further to be observed that those portions of the civil and canon law which thus, in the sense above explained, form part of our o^\-n, are properly ranked under the head of legea non scripfcc or unwritten laws, although (as we have seen) they are set forth by authority in pandects, codes, and institutions, and are enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. But it is not on account of their being irritten laws that either the canon law, or the civil law, have any obligation within this kingdom : neither do their force and efficacy depend upon their ov,ii intrinsic authority ; which is the case of our written laws, or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors, were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here ; for the legislature of England doth not, nor ever did, recognize any foreign power as superior or equal to it in this kingdom, or as having the right to give lav/ to any, the meanest of its subjects. But all the strength that either the papal or imperial laws have obtained in this realm is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts, where they form a branch of the kgcs non scn'pfce, or cus- tomary laws ; or else because they are in some other cases introduced by consent of parliament ; and then they owe their validity to the leges scripfco, or statute law. This is expressly declared in those remarkable words of the statute 25 Hen. YIII. c. 21, addressed to the king's royal majesty : " For this your grace's realm, recognizing no superior *' under God but only your grace, hath been and is free " from subjection to any man's laws, but only to such as " have been devised, made, and ordained n-ifJtin this realm, {o) See 53 Geo. 3, o. 127. e2 52 IXTRODUCTIOX. [" for the wealtli of the same ; or to such other as, hy " sufferance of your grace and your progenitors, the people " of this your realm have taken at their free liberty, by *' their own consent, to be used among them ; and have " bound themselves by long use and custom to the ob- " servance of the same ; not as to the observance of the " laws of any foreign prince, potentate, or prelate; but as to " the accustomed and antient laws of this realm, originally " established as laws of the same, by the said sufferance, " consents, and custom ; and none otherwise."] Our unwritten or common law is distinguishable into I. General customs, which are the universal rule of the whole kingdom ; and II. Particular customs, which affect only the inhabitants of particular districts. I. [As to general customs, or the common law, properly so called, this is that law by which proceedings and determinations in the courts of justice are principally guided and directed ; this, for the most part, settles the course in which lands descend by inheritance ; the manner and form of acquiring and transferring property ; the solemnities and obligations of contracts ; the rules of expounding wills, deeds, and acts of parliament ; the re- spective remedies for civil injuries ; and an infinite number of minuter particulars, which diffuse themselves as exten- sively as the ordinary distribution of common justice requires (7;). Thus, for example, that the eldest son alone is heir to his ancestor ; — that a deed is of no validity unless sealed and delivered ; — that wills shall be construed more favourably, and deeds more strictly ; — these, and many others which might be instanced, are doctrines that are not set down in any written statute or ordinance ; but depend merely upon immemorial usage, that is, upon com- mon law, for their support. Some have divided the common law into two principal grounds or foundations; viz., established cuafoms ; and (;;) Halo's Hist. C. L. c. 2. SECT. III.] OV TIIE LAWS OF ENGLAM). 53 [established maxims. But tliese appear to be one and the same thing. For the authority of these maxims (such, for example, as " the hiug can do no wrong," " no man shall be bound to accuse himself," and the like) rests entirely upon general reception and usage : and the only method of proving that this or that maxim is a rule of the com- mon law, is by showing that it hath been always the custom to observe it. But here a very natural, and very material, question arises : how are these general customs or maxims to be known, and by whom is their validity to be determined ? The answer is, by the judges of the land. They are the depositaries of the laws ; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their know- ledge of that law is derived from experience and study ; from the " viginti annoru))) Ineulirafioncs," which Fortescue mentions (7) ; and from beaig long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authori- tative evidence, that can be given, of the existence of such a general custom as shall form a part of the common law. The judgment itself, and all the material, i. e. formal pro- ceedings previous thereto, are carefully registered and pre- served under the name of records, in public repositories set apart for that particular purpose (r) ; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance {s). And therefore, even so early as the Conquest, we find the '^jjr.') Arthur v. Enkenhnm. 11 Mod. {>j) Co. T>itt. 113 a. f2 G8 INTROBUCTIOX. directed that througliout tlie kingdom there should ho six- teen ounces to the pound (s). And thus much for the second part of the leges non scripfce, or those particular or special customs which affect particular districts only. Let us next proceed to the leges scnpfce, the written laws of the kingdom (a) ; which are statutes, acts, or edicts, made hy the sovereign, by and with the advice and consent of the lords spiritual and temporal, and commons, in parliament assembled (h). The oldest of these now extant and printed in our statute books, is the famous Magna Charfa of king John, as confirmed in parlia- ment (c). The manner of making these statutes will be better considered hereafter, when we examine the constitution of parliament. At present we will only take notice of the different kinds of statutes ; and of the rules of law with regard to their effect and construction ('/). (c) See Noble v. DureU, 3 T. K. 271. [a] Vide suj). p. 45. (A) The Prince's case, 8 Rep. 20. {c) 25 Edw. 1. The statutes from Magna Charta down to the end of Edw. 2 — including also some which (because it is doubt- ful whether to assign them to the reign of Hen. 3, of Edw. 1, or of Edw. 2) are termed incerti tempori.i, — compose what have been called the Vetera Statuia ; those from the beginning of the reign of Edw. 3 being contradistinguished by the appellation of the Nova titatuta. (Dwarris on Statutes, G2G.) It may be observed, that by 19 & 20 Vict. c. 64 ; 24 & 25 Vict. c. 101 ; 2G & 27 Vict. c. 125; 30 & 31 Vict. c. 59 ; 33 & 34 Vict. c. 69 ; 34 & 35 Vict. c. 116 ; 35 & :3G Vict. c. G.I, c. 97, c. 98 ; 36 & 37 Vict. c. 91 ; 37 iS: 38 Vict. cc. 35, 96 ; 38 & 39 Vict. c. 66 ; 39 & 40 Vict. c. 20; 41 & 42 Vict. c. 79 ; 42 & 43 Vict. c. 59 ; 44 & 45 Vict. c. 59 ; and 46 & 47 Vict. c. 49, — a variety of Acts not in use or in force, or now unnecessaiy, are expressly repealed. {d) The method of citing acts of pai-liament is various. Many of the antient ones are called after the name of the place where the j)arlia- ment was held that made them ; — as the statutes of Merton and Marlborough, of Westminster, Gloucester and Winchester. Others are named after their subject ; — as the statutes of Wales and Ireland, the articuH cicri and ijheprcvrogativa regis. Some are distinguished by their initial words, as the statute of Quia cmptores, and that of Cir- c/iDixpecte ayalin. But the most SECT. 111.] OF THE LA^^S OF ENGLAND. 00 Fii'st, as to their several kinds. Statutes are either puhlic or private {e). Thus, the statute 13 EHz. c. 10, which prohibits the master and fellows of any college, the dean and chapter of a cathedral, or any other person having a sj)iritual living, from making leases for longer terms than twenty-one years or three lives, is a puhlic Act (/') ; it being a rule prescribed to spiritual peiisons in general : but an Act to enable the Bishop of Chester to make a lease to A. B. for sixty years concerns only the parties and the bishop's successors, and is therefore a private Act. Again, of private Acts, some are local, as affecting particular places only, others personal^ as confined to fiarticular persons {g). Of the first kind, an inclosm-e Act is an example ; of the second, an Act for a change of name {It). With respect to the distinction between public usual method has been to name the year of the reigning sovereign and the chapter or particular Act, ac- cording to its numeral order ; — as, 9 Geo. 2, c. 4. For all the Acts of one session of parliament taken to- gether make properly but one sta- tute ; and, therefore, -when two ses- sions have been held in one year, we usually mention stat. 1 or 2. Thus the Bill of Rights is cited as 1 W. & M. St. 2, c. 2. It has, of late, been a common plan to insert in an Act a name referring to its subject-matter and date by which it shall be legal to cite it without fui-ther particu- larity, e.g., "The Public Health Act, 187'J." It may be worth re- marking here that it has been held that the title is no part of an Act. (See Att.-Gen. i". "Weymouth, Amb. 22 ; Jeffries v. Alexander, 8 H. of L. Cas. 003, n.) As to the margiHal notes appended to each section, see Claydon v. Green, Law Eep., 3 C. P. oil; Venour v. Sellon, ib. 2 Ch. D. 525, remarked upon in Sutton V. Sutton, 22 Ch. Div. 511. As to the preamble, see Rex v. Pierce, 3 M. & S. 62 ; Salkeld t;. Johnson, 1 Hare, 196. As to the subheadings of particular sections, see Hammersmith Rail. Co. v. Brand,LawRep.,4H. of L.Cas.l71. (e) As to the law of public and private Acts see Lord Cromwell's case, 4 Rep. 13 a; Holland's case, ib. 76 a; Kirk v. Nowill, 1 T. R. 125 ; Samuel v. Evans, 2 T. R. 509. Thus, too, the Roman lawyers dis- tinguish between the scratus con- sulta, which regarded the whole community, and the seiiaitis decrcta, which operated only upon parti- cular persons and private concerns (Gravin. Grig. 1, § 24). (/) Holland's case, 4 Rep. 76 a. {g) In our printed statute book some Acts are described as being " public Acts of a local character." Some private Acts are not printed ut all. (See 5 & 6 Vict. c. 97, s. 5 ; Barnett v. Cox, 9 Q. B. 617.) [h) We find also in oiu* books 70 IM'RODUCTIOX. and private statutes, it is to be observed that the courts are bound to take notice judicially of the former, but not of the latter; but by 13 & 14 Yict. c. 21, every statute made after the year 1850 is to be taken to be a public one, and judicially noticed as such, unless the contrary be therein expressly declared (i). Statutes also are sometimes described as declarator//, or penal, or remedial, according to the different nature of their object or provisions. Declaratory statutes are where the old custom of the kingdom is almost fallen into disuse, or become disputable ; in which ease the parliament has thought proper, in perpetuuni rei fesfiinoiiiuin, and for avoiding all doubts and difficulties, to declare w^hat the common law is and ever hath been. Thus, the statute of treasons, 25 Edw. III. st. 6, c. 2, did not make any new species of treasons ; but only, for the benefit of the subject, declared and enumerated those several kinds of offence, which before were treason at the common law. Penal acts are those which impose penalties or punishments for an offence committed, as in the ease of the statutes relative to game. Remedial acts are such as supply some defect in the existing law, and redress some abuse or inconvenience witJi which it is found to be attended, without intro- ducing any provision of a penal character ; — as in the case of the statute 3 & 4 Will. IV. c. 105, which introduced various improvements in the law relating to dower. But it is not every statute that falls within one or other of these divisions ; for some combine more than one of these objects, and others have objects of a different description. There is also a distinction of acts of parliament, as being either enlarging or restraining, enabling or dimhiing acts. Thus the 32 Hen. YIII. c. 28, which gave bishops and other some Acts tci-med (/wiwrt/ and others (Thorpe v. Adams, LawEep., 6 C. particular; as to which it may be P. 125.) observed, that one of the latter class (i) Known as ' ' Lord Broiigham's is not repealed by a g-encral statute Act;" see Chorlton v. Ling-s, Law later in date, luiless by express re- Rep., 4 C. P. 374. f ercnce or by necessary construction. SECT. III.] OF THE LAWS OF ENGLAND. 71 sole ecclesiastical corporations (except parsons and vicars) a more ample power of making leases than they possessed before, is called an enabling statute : the 13 Eliz. e. 10, above noticed, which afterwards imposed certain limitations as to the making of leases by ecclesiastical persons, is do- scribed as a restraining or disabling statute (/•) . Secondly, as to their interpretation. In interpreting statutes, — as well as in declaring the rule of the common law (/), — the coiu-ts are governed by former adjudica- tions {m) ; or, in the absence of these, by analogy and general reasoning (»). But many specific rules are also laid down for their guidance ; and principally these which follow. 1. A statute begins to operate from the time when it receives the royal assent, unless some other time be fixed by the act itself for the purpose (o). The rule on this subject was formerly different ; for at common law every act of parliament, which had no provision to the contrary, was considered, as soon as it passed, (that is, received the royal assent,) as having been in force retrospectively from the first day of the session of parliament in which it passed, though in fact it might not have received the royal assent, or even been introduced into parliament, until long after that clay. Thus where a statute provided that every deed of annuity granted a/ler the jxissing of the act should be inroUed within t^^'enty days after execution, and the act received the royal assent in May, 1777, but the session had commenced in October, 1776, an annuity deed, exe- [k) Co. Litt. 44 b ; 1 El. Com. 87. receives the royal assent, the latter [l) Vide sup. p. 53. Act takes effect (unless otherwise (/«) By Lord Kenyon, Lacou v. pro%ided, and except as to pcnal- Hoopcr, 6 T. R. 224 ; and see Rex ties,) from the expiration of the V. Leek "Wootton, 16 East, 122. former. Of late years it has been («) Hob. 346. usual to pass an Act in each ses- (o) 33 Geo. 3, c. 13 ; Nares v. sion, contiuuing for a fixed period Rowles, 14 East, 510. But, by certain Acts then about to exph-e. 48 Geo. 3, c. 106, where an Act 41 & 42 Vict. c. 70 (1878) is au expires before a bill for continuing example of such a statute, it, iutroduccd in the same sc.-^.sioD, 72. INTRODVCTIOX. cuted in January, 1777, nearly four montlis "before tlie royal assent was given, but after the commencement of the session, was adjudged to bo void for non-compliance with the provision (;:>) . This strange principle, however, though rigidly observed for centuries, no longer prevails ; it being expressly provided by 33 Geo. III. c. 13, that where no other direction is given, every act shall be con- sidered as commencing from the date indorsed upon it as the date of its receiving the royal assent — a manifest im- provement, it must be owned, on the former law ; though it has been doubted (and with reason) whether even the new rule is placed upon the right basis, and whether some fixed and reasonable period ought not always to be inter- posed between the passing of an act and the time of its coming into operation, so as to give the subjects of the realm an opportunity of becoming acquainted with its provisions {q) . The rule, it will be observed, is laid dowm with an exception of the case where the period of com- mencement is otherwise fixed by the statute itself ; for by force of an express provision, or even by necessary con- struction from the nature of the enactment, the operation of a statute may be cither postponed on the one hand, or have a retrospective relation on the other, so as to affect rights which had vested before it received the royal assent, or transactions which had before then taken place {>•). 2. Statutes are to be construed not according to their mere letter, but according to the intent and object with which they were made («). It occasionally happens there- fore that the judges who expound them are obliged, in favoiu* of the intention, to depart in some measure from the words. And this may be either by holding that a case {p) Latless v. Holmes, 4 T. E. Hitchcock v. Way, 6 Ad. & El. 660. 943 ; Moon v. Durden, 2 Exch. 22 ; {q) Sec Kent's' Comm. Lect. 20 ; Wriglit v. Hale, 6 H. & N. 229. Dwarria on Stats. 683. (a) Bac. Ab. Statute (1), 5 ; ()•) Upon tlic subject of constru- Stradling v. Morgan, Plow. 205 ; ing a statute retrospectively, sec Hex v. Everdon, 9 East, 101. Bum r. Carvalho, 1 Ad. & El. 338 ; SECT. III.] OF THE LAWS OF ENGLAND. 73 •wdtliin the words, is not witliin the meaning ; or that a case not "svithiu the words, is within the meaning. Thus where a statute provides that all who shall commit a cer- tain act shall be deemed felons, yet a madman who does the act shall not be deemed a felon ; for that would be contrary to the presumable intention (/). And so, on the other hand, where an act of parliament gave the owners of inheritances a remedy by action against such tenants hold- ing for life or years as should commit waste (i. e. spoil and destruction) ; the action was held maintainable against a tenant holding only for one year or less, for so the law- makers presumably designed {ii). In all instances where the strict letter of the law is thus corrected by reference to its intention, the construction is said to be by equity [x), a phrase not peculiar to the law of England, but used by foreign jurists in the same sense {y). Thus, in the first example, the case would be said to be out of the equity of the act; in the second to be within its equity (c). It is to be observed, however, that this principle of equitable con- struction is not to be carried beyond certain bounds, and a judge is not at liberty, in favour of a supposed intention, to disregard the express letter of the statute, where, for anything that appears, the wording may correspond witli tlie actual design of the legislature — the maxim in cases of this description being that a verbis legis non rccedendum est (a). It is also important to remark, that the rule in question has been applied more freely to the antient statutes than it has been to those of more modern date, which are interpreted somewhat more strictly, and with closer adherence to the letter (b) . For the style of framing acts of parliament U) Eyston r. Studd, Plow. 4G.5. (r) 3 BL Com. 43\. The latter {>/) Ibid. 467. e.xprcBHioii is of more familiar oc- (.?■) Ibid.; Co. Litt. '24 b. The cm-reuce, however, than the former. term is of verj' early occurrence in («) Edi'ich's case, 5 Rep. llSb; our law (see Bract, lib. 1, c. 4, and see Jones v. Smart, 1 T. R. 52 ; p. 3 a ; lib. 2, c. 7, p. 23 b.) and R. v. Inhabitants of Great {//) Grotius de iEquitate, s. 3 ; Bentley, 10 Barn. & Cress. 520. Pufl'eudorf, Elem. Jur. Un. lib. 1, {b) Per Coleridg-e, J., Rex v. ss. 22, 23. Gardner, 6 Ad. & El. 118 ; and see i 4 INTRODUCTION". has itself imdergone a material change — tliose of a more antient era being comparatively short and general in tlieir character, while the later acts are expanded into minute detail, and intended to reach every specific case ; and, therefore, in adopting a construction not in strict con- formity with the language of the legislature, there is now more danger, than there once was, of going beyond, or falling short of, its real intention. 3. Another maxim (and one that may often serve for our guidance in the application of the last), is, that in the interpretation of statutes in general, the following points are to be considered, — the old law, the mischief, and the remedy ; that is, how the common law stood at the making of the act, what the mischief vv\as for which the common law did not provide, and what remedy the parliament hatli provided to cure this mischief (c) . And here an example may be found in the restraining statute of 13 Eliz. c. 10, to which we have already adverted {d). By the common law the master and fellows of a college, and other such corporations, might let as long leases as they thought proper ; the mischief was that they let long and unreason- able leases, to the impoverishment of their successors ; the remedy applied by the statute was by making void all leases made by them for longer terms than three lives, or twenty-one years. Now in the construction of this statute it was held, that leases, though for a longer term, made by the master and fellov\''3 of a college or a dean and chapter, are not void during the time of the master or the dean ; for the act was made for the benefit and protection of the successor (c), and the mischief is therefore sufiiciently sup- Brandling v. Barrington, 6 Barn. & (d) Vide sup. p. 71. Cress. 475 ; Rex v. Inhabitants of (c) Co. Litt. 45, u. (4), by Harg.; Barbara, 8 Barn. & Cross. 104 ; Bac. Ab. Leases (H.) ; Magdalen Notley V. Buck, ib. 1G4 ; Adam v. College case, 11 E,ep. 73 a. And Inhabitants of Bristol, 2 Ad. & El. see Magdalen Hospital (Governors) 395, 399. V. Knotts, 5 Ch. Div. 175 : on ap- (c) Heydon's case, 3 Rep. 7 ; 1 peal, 8 Ch. Div. 709, and 4 App. Bl. Com. 87 : 2 Innt. 110, Ca. 324. SECT. HI.] OF THE ].A^VS OF ENGLAND. 73 pressed by vacating them after the determination of the interest of the grantors ; but the leases, during the con- tinuance of the grantors, not being within the mischief, are not within the remedy (,/'). 4. It is also an established rule, that remedial statutes are to be more liberally, and penal more strictly, con- strued ((/). The statute of EKzabeth just mentioned may again serve as an example ; for, soon after it was made, the master and fellows of Magdalen College granted certain premises to the queen, her heirs, and successors, on condition that she should convey the same to a certain person named : and it was contended that this conveyance was not restrained by the act ; for that by the general rule of law the sovereign is not bound by a statute unless specially mentioned ; which the com't admitted to be in many cases true. But as this was a remedial act, and made to suppress wrong, it was adjudged that it should bind the queen {h). As to the stricter manner in which a penal act must be interpreted, we may resort to an illus- tration of Lord Bacon's, that if for a certain offence it be enacted that a man shall lose his right hand, and some offender hath had his right hand before cut off in the wars ; he shall not lose his left hand, but the crime shall rather pass without the punishment w^hich the law assigned, than the letter of the law shall be extended (/) . This dis- tinction applies, it will be observed, not only to remedial and penal statutes properly so called, but also to those of a mixed kind, which contain both remedial and penal pro- visions ; the former of which will be construed with more indidgence than the latter (/>•) . 5. In the construction of a statute all other such statutes ought to be taken into consideration as have been made (/) 1 Bl. Com. 87. (0 Bac. Maxims, 12. \g) Ibid. 88. {k) See Piatt v. Sheriffs of Lou- (h) Magdalen College case, 11 don, Plowd. 36; Boncti r. Booth, Rep. 72. AV. B. 1230. 7G INTRODUCTION. in pari materia (/). Thus by the 7 Geo. II. c. 15, it was enacted, tliat ship-owners, carrying goods, were not to be responsible for losses to such goods, incurred (without their privity) by the misconduct of the master and mariners, to any greater extent than the value of the ship, u-ith all her appurtenances, and the freight. By 26 Greo. III. c. 86, they were exempted from liability for loss incurred by robbery of any persons whatsoever, further than the value of the ship, with all her appurtenances, and the freight. By 53 Geo. III. c. 159, s. 1, they were not to be answer- able for losses arising from any act done without their fault or privity, beyond the value of the ship and freight. Upon the last act a question arose, whether the owner of a vessel was answerable for the value of certain fishing stores belonging to the ship, and lost by an accidental collision at sea ; and the court held him answerable ; and remarked, that in subsequent sections of the same act, and also in the tAvo preceding statutes, which were in pari materia, the words used were ship and all her appurtenances ; so that the section in question was to be understood as if the words uifh all her appurtenances were used therein, sup- posing that those words would make any diiference in the sense {nt). This rule, it will be observed, applies whether the prior acts are referred to in the statute on which the question arises, or not. They are considered, indeed, as all forming one continued enactment (;(). 6. A statute, which treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior (o). And therefore, inasmuch as the statute of 13 Eliz. c. 10, before referred to, applied its prohibition to "masters and fellows of colleges, deans and {I) Bac. Abr. Statute (1), 2, 3 ; (w) Gale v. Laui-ie, 5 Barn. & Jones v. Smart, 1 T. E,. 53 ; King, Cress. 156. qui tarn v. Smith, 4 T. E. 419 ; (^) Earl of Aylesbury i'. Pattison, Duck V. Addington, 4 T. R. 44 7 ; 1 Doug. 30. Gale V. Laurie, o Bam. & Cress. (o) 1 Bla. Com. 88. 156. SECT. nr.J OF THE LAWS OF ENGLAND. 77 cliaj)ters of catliedrals, masters of hospitals, parsons and vicars, or any other having any spiritual or ecclesiastical living," a hifihoj) was hold not to he included within its provisions ; for, though he has a spiritual living, he is of higher dignity than any of the persons enumerated {p). 7. Where the provision of a statute is general, every thing which is necessary to make such provision effectual is sui) It may be here remai-ked of England. that such statutes as apply exclu- (c) As to Wales, see Vaugh. 395 sively to Scotland, Ireland, or the — 420 ; Rex v. Cowle, 2 Burr. 850 ; Colonics, are not, as a general 2 Inst. 195; 4 Inst. 239; Buckley i'. rule, noticed in this work, -which Thomas, Plowd. 121, 123, 126. 129. G 2 84 INTRODUCTION. [from one fastness to another, and by repeated losses abridged of their wild independence. Yery early in our history we find their princes doing homage to the crown of England ; till at length in the reign of Edward the first, Avho may justly be styled the conqueror of Wales, the line of their antient princes was abolished {d), and the king of England's eldest son was created their titular prince {c) ; the territory of Wales being then entirely re-annexed, by a kind of feodal resumption, to the dominion of the crown of England (/') ; or, as the statute of Wales expresses it, " terra Wariicc cum incolis suis, prim rcgi jure feodali " suhjeda (of which homage was the sign), jam in pro- '^ priefatis dominium totaliter et cum integritatc conversa " eat, ct coronce regni Anglia' fanquam 2)ars corporis ejus- ^^ dem annexa ct uiiita''{g). By this statute of Wales very material alterations were also made in divers parts of their laws, so as to reduce them nearer to the English standard, especially in the forms of their judicial proceed- ings ; but they still retained very much of their original polity, particularly their rule of inheritance, viz., that their lands were divided equally among all the issue male, and did not descend to the eldest son alone. By other subse- quent statutes their provincial immunities were still farther abridged : but the finishing stroke to their independency was given by the statute 27 Hen. VIII. c. 26 (as con- firmed and enlarged by the statute 34 & 35 Hen. YIII. c. 26) ; which at the same time gave the utmost advance- ment to their civil prosperity, by admitting them to a thorough communication of laws with the subjects of England. Thus were this brave people gradually con- quered into the enjoyment of true liberty, being insen- {(Fj See Turner's Hist. Eng. p. Wales is ahvaj'S conferred on the 3, c. ii. ; Hume's Hist. Eng. c. xiii. lieir apparent by special creation (e) Blackstone says he became and investiture, "their tituhir prince as a matter of (/) Vaugh. 400; Eex v. Cowle, course;" but the expression is not 2 Burr. 851. accnrate; as the title of Prince of (^) 12 Edw. 1. S. IV.] COUNTRIES SlUJECT TO THE LAWS OF ENOl.AXD. 85 [siLlj^ put upon the same footing, and made fellow-citizens, with their conquerors.] By these statutes of Hen, VIII. it was enacted, amongst other matters of less importance : — 1 . That the dominion of Wales shall he for ever united to the king- dom of England. 2. That all "Welshmen horn sliall have the same liberties as other the king's subjects. 3. That lands in Wales shall he inheritable accordiog to the English tenures and rules of descent. 4. That the laws of England, and no other, shall he used in Wales. 5. That Wales shall be divided into twelve counties or shires, exclusive of the county of Monmouth, which is made one of the counties of England. From the time of Hen. YIII., therefore, the civil con- dition of the principality has differed but slightly from that of the kingdom at large : and it may be remarked, that an Act of Parliament, where England only is mentioned, now includes Wales also (//). Wales, how- ever, for a long time possessed within itself superior courts called Courts of Great Session, independent of the process at Westminster Hall ; and was not visited by the English judges of assize (/) : also, such of its counties and towns as were represented in parliament sent each one member only, the usual number in England being two. But, in 1831, by 11 Geo. IV. & 1 Will. IV. c. 70, the jurisdiction of the Coiuis of Great Session was abolished ; and it was by the same statute enacted that assizes should be held in the principality for the trial of all matters criminal and civil, in like manner and form as had been usual for the counties in England. And by the Beform Act of the succeeding year (2 & 3 Will. IV. c. 45), a new arrangement was made as to the return of members for Wales; by the effect of which three of its counties used thereafter respectively to send two knights of the {h) See 20 Geo. 2, c. 42, s. 3. So assimilated to that in Eng-land. also by 8 & 9 Vict. c. 11, the (/) The proceedings in the Courts manner of assigning sheriffs of of Great Session were partly rcgu- counties in Wales is regulated and lated by 13 Geo. 3, c. 51. 86 INTRODUCTION. shire to parliament, and each, of the remaining counties one. And under the Representation of the People Act, 1884 (Z-), and the Eedistribution of Seats Act, 1885 (/), Wales is now placed upon a similar footing to England as regards representation in parliament. The kingdom of Scotland — notwithstanding the union of the crowns on the accession of their king James the sixth to that of England — continued an entirely separate and distinct kingdom for above a century more, though an union had been long projected ; which was judged to be the more easy to be done, as these kingdoms exhibited at the time of the project a very great resemblance, though far from identity, in their institutions. And this is re- marked by Sir Edv/ard Coke (»0, who points out a con- formity, in many things, not only in the religion and language of the two nations, but also in their antient laws {n). As to the latter particular, indeed, this resem- blance did not exist at the time of the Norman conquest, for the Scottish institutions were then, according to the best authorities, exclusively Celtic, and those of England, Anglo-Saxon (o) : but it had become established as soon afterwards as the twelfth centmy {p) ; and not only con- tinued to prevail at the time of the Union, but is even yet in some particulars distinctly perceptible. The diversities [k) 48 Vict. c. 3. though once a subject of dispute, [1) 48 & 49 Vict. c. 23. seems on the -wliole to be sufficiently (>«) 4 Inst. 345. estabhshed,) is so similar to tho («) Blackstone says that both treatise of Glanvil on English law kingdoms "were antiently under in the reign of Hen. 2, that one the same government, ' ' and cites of them is plainly copied from the 1 Jac. 1, c. 1, as declaring that other. There seems little reason, "these two mighty, famous, and however, to doubt that Glanvil' s antient kingdoms were formerly is the original work. As to these one." treatises, see Inst, ubi sup. ; (o) See Hallam's Constitutional Erskine's Instit. b. 1, t. 1, s. 32; Hist. vol. iii. p. 404, 3rd ed. Robertson's Chas. V. vol. i. u. {2A Ths ™ost antient book of (25); Hist. Eng. Law, by Eecves, Scottish law, called Itcgiam Majes- vol. i. p. 225. iairm (the authenticity of which, S. IV,] COUNTRIES SUI5JECT TO THE LA^YS OF ENGLAND. 87 of practice, however, in two large and independent juris- dictions, and the acts of two distinct parliaments, have in process of time naturally tended to introduce great diver- sities ; to which we may add, as a co-operating cause, the autient alliance and connection of Scotland with France, where the civil law chiefly prevailed. For to that law the Scottish jurisprudence ultimately became in many respects conformable; and particularly in all tliat regards contracts and commerce (q). [To recur, however, to the history of the Union : this appeared to Sir Edward Coke, and the politicians of that time, to be attended (notwithstanding the similarity of the t^^'o systems of law) with great difficulties ; but these were at length overcome, and the great work was happily effected in the year 1706, during the reign of Queen Anne (r), when twenty-five articles of union were agreed to by the parliaments of both nations ; the purport of the most considerable being as follows ; — that 1. On the first of May, 1707, and for ever after, the kingdoms of England and Scotland shall be united into one kingdom, by the name of Grreat Britain (-s). 2. The succession to the monarchy of Great Britain shall be the same as Avas before settled with regard to that of England. 3. The united kingdom shall be represented by one parliament (f). 4. There shall be a communication of all rights and privileges between the subjects of both kingdoms, except where it is otherwise agreed. [q) SceErskine'sIustit. b. 1, t. 1, 13 ; and 38 & 39 Vict. c. 32, surveys s. 41. By 19 & 20 Vict. c. GO, the of Great Britaiu were authorized laws of England and Scotland to be taken. were assimilated on several misccl- {t) There is an appellate juris- laneous points affecting trade and diction in the House of Lords over commerce. the Scotch courts in civil cases, as (r) See the Act of Union (6 Ann. to which see 6 Ann. c. 53 ; 48 Geo. c. 11, sometimes printed 5 & 6 Ann. 3, c. 151 ; and 39 & 40 Vict. c. 59, c. 8). s. 3. But as to the coiu't of Justi- (s) "\Ve may here remark that by ciari/, see Mackintosh v. The Lord 4 & 5 Vict. c. 30 ; 33 & 34 Vict. c. Advocate, Law Rep., 2 App. Ca. 41, 88 l^"TKODucTIo^^ , [9. When England raises 2,000,000/. by a land tax, Scotland sliall raise 48,000/. . 16, 17. The standards of the coin, of weights, and of measures, shall he reduced to those of England, throughout the united kingdoms (ii). 18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England (v). But all the other laws of Scotland shall remain in force ; though alterable bj the parliament of Grreat Britain. Yet with this caution, that laws relating to public policy, are alter- able at the discretion of the parliament ; laws relating to private right, are not to be altered but for the evident utility of the people of Scotland.] 22. Sixteen peers are to be chosen to represent the peerage of Scotland in parliament {ic), and forty-five mem- bers to sit in the house of commons; which number of commoners was, however, afterwards raised to sixty (,r), and has now been raised to seventy- two {//). 23. [The sixteen representative peers of Scotland shall have all privileges of parliament : and all peers of Scotland shall be peers of Grreat Britain, and rank next after those of the same degree at the time of the union* and shall have all privileges of peers, except sitting in the house of lords and voting on the trial of a peer (z) . These are the principal of the twenty-five articles of imion, which are ratified and confirmed by statute 6 Anne, c. 11 : in which statute there are also two acts of parliament recited ; the one of Scotland {a), whereby the church of Scotland, and also the four universities of that kingdom, {u) Art. 17 of tlie Act of Uuion tively to amend the representa- was repealed by 41 & 42 Viot. c. 49. tion of the people in Scotland. {v) See Maxwell v. Mayre, 1 Bla. (y) 48 & 49 Vict. c. 23. See also Eep. 271, 364. 48 Vict. c. 3. (w) 6 Ann. c. 78. And see 2 & 3 (z) See Lord Mornington's case. Will. 4, c. 63 ; 10 & 11 Vict. c. 52; Fort. Kep. 165 ; Duke of Queens- 14 & 15 Vict. c. 87. berry's case, 1 Peerc "Wins. 582. {z) See 2 & 3 Will. 4, c. 65, and {a) I W. & M. c. 5 (an Act for 31 & 32 Vict. c. 48, Acts passed in securing tlie Protestant religion and the years 1822 and 1868 respec- Presbytcrinn chiinh goA-erament). S. IV,] roiNTKIES SURJECT TO TTIE LAWS OF EXGI.AM). 89 j]are cstablislied for ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same ; the other of England (/>), whereby the Acts of Uniformity of the thirteenth year of Elizabeth and the thirteenth and fourteenth years of Charles the second (except as the same had been altered by parliament at that time), and all other acts then in force for the preservation of the church of Eugland, are declared perpetual ; and it is stipulated that every subsequent king and queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the town of Berwick-upon-Tweed. And it is enacted that these two Acts " shall for ever be observed as fundamental and essential conditions of the union." Upon these articles and acts of union, it is to be ob- served (<•') — 1. That the two kingdoms are now so inseparably united, tliat nothing can ever disunite them again ; except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be " fundamental and essential conditions of the union." 2. That whatever else may be deemed " fundamental and essential conditions," the preservation of the two churches of England and Scot- land in the same state that they were in at the time of the union, and the maintenance of the acts of uniformity which establish ovir common prayer, are expressly declared so to be. 3. That therefore any alteration in the constitution of either of those churches, or in the liturgy of the church of England, (unless with the consent of the respective churches, collective!}'' or representatively given,) would be (/>) 5 Ann. c. 5 (an Act for se- Tests Act, 1871 " (34 & 35 Vict, curing the Chiu'cli of EngUind as c. 26), and also that the liturgy of by law established) . the chui'ch of England was changed (c) It has not been thought con- in certain particulars by ' ' The venient to modify the way in which Prayer Book (Tables of Lessons) Blackstone here expresses himself; Act, 1871" (34 & 35 Vict. c. 37). but it will be noticed that some See also the 22 Vict. c. 2, abolishing alteration in the act of unifomiity the church ser\'iccs for some parti- was effected by "The Universities cular days. 90 INTROBUCTIOX. [an infringement of tliese " fundamental and essential con- ditions." 4. That the municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered by parliament ; and, as the parliament has not yet thought projier, except in certain instances, to alter them, they still (with regard to the particulars unaltered) continue in full force.] Wherefore the municipal laws of England are, generally speaking, of no force or validity in Scotland ; nor, on the other hand, are those of Scotland of force or validity in England [d) ; and of consequence, in the ensuing Commentaries, we shall have very little occasion to mention, any further than sometimes by Avay of illustration, the municipal laws of the Scottish part of the united kingdom. It is however to be observed, that acts of parliament, passed since the union, extend in general to Scotland, though that country be not expressly mentioned. If it be intended to except Scotland, there must be an express proviso to that effect, or the intention of the legislature to except it must be otherwise sufficiently in- dicated (c). A separate secretary of state for Scotland has been recently appointed (/). The town of Bcncicl--u2)on-Tii-ecd was originally part of the kingdom of Scotland ; and, as such, was for a time reduced by King Edward the first into the possession of the crown of England ; and, during such its subjection, it received from that prince a charter, which, (after its subse- quent cession by Edward Balliol to be for ever united to the crov,ai and realm of England,) was confirmed by King Edward the third, with some additions ; particularly that it should be governed by the laws and usages which it enjoyed during the time of King Alexander, that is, before its reduction by Edward the first. Its constitution [d) Our coiu'ts do not even take certained by evidence. (See Wood- judicial notice of the state of the ham v. Edwards, 5 Ad. & El. 771 ; law in Scotland ; but (as in the case Bradlaugh v. De Em, Law Rep., 5 of a foreign country) if any question C. P. 473.) upon it haiipcns to arise, it is con- (t) Rex v. Cowlc, 2 Biut. 853. sidered as a matter of fact to be as- (/) 48 &; 49 Vict. c. 61. S, n .] tOrNTlUKS SlliJECT TO rHK LAWS OF ENGLAND. 91 was new-modelled and put upon an English footing by a charter of King- James the first ; and all its liberties, franchises, and customs were confirmed in parliament by the statutes 22 Edw. IV. e. 8, and 2 Jac. I. c. 28. Though therefore it hath some local peculiarities, derived from the antient laws of Scotland, yet it is now clearly part of the realm of England, and is accordingly duly represented by burgesses in the House of Commons {[/). And there- fore it was (perhaps superfluously) declared by statute 20 Greo. II. c. 42, s. 3, that Avhere England only is mentioned in any act of j)arliament, the same notwithstanding doth and sliall be " deemed to comprehend and include the town of Berwick-upon-Tweed." Berwick, however, is no part of the county of Northumberland (//) ; but forms, in some sense, a county of itself; that is, a count// of a foicn co)-po- rate (/') : as to the effect of "^'hich, the reader is referred to the observations which we shall have occasion presently to make when we come to explain the nature of counties corporate (/«■). As to Ireland {I), its inhabitants, at the time of the conquest of that island by Henry the second, were go- verned by what they called the Brehon law, so styled from the Irish name of judges, who were denominated Brehons {ni). But on such conquest, the laws of England were received and sworn to by the Irish nation, assembled at the council of Lismore {ji). And afterwards King John, in the twelfth year of his reign, went into Ireland, and carried over with him many able sages of the law ; a,nd there by his letters patent, in right of the dominion of {g) See Hale, Hist. C. L. c. 9 ; {i) Sec 5 & 6 Will. 4, c. 67, ss. 61, Eex V. Cowle, 2 Btut. 853 ; Com. 109 ; 6 & 7 WUl. 4, c. 103, s. 6. Dig. Scotland (B.) ; Mayor of Ber- (/.•) Vide post, p. 133. ■\vick V. Shanks, 3 Bing. 459. (/) As to Ireland, see 4 Inst. 349. (/<) By the 48 & 49 Vict. c. 23, (;«) 4 Inst. 358 ; Edin. Spenser's Berwick is now included (for elcc- State of Ireland, p. 1513, edit, tion pui-poses) in the county of Hug-hes. Northuiuberlaud. [ii) Pryn. on 4 Inst. 249. 92 INTRODUCTION. conquest, is said to have ordained and establislied that Ireland should be governed by the laws of England (o) ; which letters patent Sir Edward Coke apprehends to have been there confirmed in parliament (p). But to this ordinance many of the Irish were averse to con- form, and still stuck to their Brehon law : so that both Henry the third (q) and Edward the first (r) were obliged to renew the injunction ; and at length in a parliament holden at Kilkenny, 40 Edw. III., under Lionel Duke o£ Clarence, the then Lieutenant of Ireland, the Brehon law was formally abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later times. And yet, even in the reign of Queen Elizabeth, the wild natives still kept and preserved their Brehon law ; which is described to have been " a rule of right unwritten, " but delivered by tradition from one to another, in which " oftentimes there appeared great show of equity in deter- " mining the right between party and party, but in many " things repugnant quite both to God's law and man's" (-s). The latter part of this character is alone ascribed to it, by the laws before cited of Edward the first and his grandson. Notwithstanding this settlement of Ireland, it was only entitled the dominion or lordship of Ireland (f), and the king's style was no other than Doniinus Hihernice, lord of Ireland, till the thirty-third year of King Henry the eighth, when he assumed the title of king, which is re- cognized by act of parliament, 35 Hen. YIII. c. 3. [But as Ireland was a distinct dominion, and had parliaments of its own, it is to be observed, that though the immemorial (o) See Craw v. Ramsay, Vaiigh. sonant, adco quod leges cciiseri noii 294 ; 2 Pryn. Eec. 85 ; Calvin's dcbeant, nobis et concilio nostro satis case, 7 Rep. 23 ; Campbell v. Hall, videtur cxpcdicns, cisdoin ntendas con- Cow^. 210. cedere leges Anglicanasy — PrjTi. (jo) Co. Litt. 141. Rec. 1218. \q) A. R. 30 ; 1 Rym. Feed. 442. (a) See Spenser'ri State of Ire- • (*■) A. R. 6. — " Fro eo quod leges land, p. 1513. quibus utuntur Hybcrnxci Leo de- (t) Stat. HiLcrnite, 20 Hen. 3. testahilcs existunt, ct omni jnri dls- S. IV.] COrMRIES SUBJECT TO THE LAWS OF ENGLAND. 93 [customs (or common law) of England were made the rule of justice in Ireland also, yet no acts of the English j)arlia- ment, since the twelfth of King John, extended into that kingdom ; unless indeed it were specially named, or included under general words, such as " within any of the king's dominions." And this is particularly expressed, and the reason given, in the Year Books ; whore it is said, " a tax " granted by the parliament of England shall not bind " those of Ireland, because they are not summoned to our " parliament ;" and again, " Ireland hath a parliament of " its own, and maketh and altereth laws; and our statutes " do not bind them, because they do not send knights to " our parliament [ii] ; but their persons are the king's " subjects, like as the inhabitants of Calais, Gascoigne, " and Guienne, Avhile they continued under the king's " subjection" (r). The general run of laws, enacted by the superior state, are supposed to be calculated for its own internal government, and do not extend to its distant dependent countries, which, bearing no part in the legis- lature, are not therefore in its ordinary and daily contem- plation. But when the sovereign legislative power sees it necessary to extend its care to any of its subordinate dominions, and mentions them expressly by name, or in- cludes them under general words, there can be no doubt but then they are bound by its laws (//) . The original method of passing statutes in Ireland was nearly the same as in England, the chief governor hold- ing parliaments at his pleasure, which enacted such laws as they thought proper (s). But an ill use being made of this liberty, particularly by Lord Gormanstown, deputy- lieutenant in the reign of Edward the foui-th {a), a set of statutes was enacted in the tenth year of Henry the seventh (v) Lord Coke, citing this in (.r) 20 lien. G, 8 ; 2 Ricli. 3, 12. Calvin's case, inserts the following' Q/) Year Book, 1 Hen. 7, 3 ; parenthesis, viz. ("which is to he Calvin's case, 7 Rep. 22. understood lotlcss specially iiai/wd''). {z) Irish Stat. 11 Eliz. st. 3, c. 8. 7 Rep. 22. (o) lb. 10 lien. 7, c. 23. 94 INTRODUCTION. [(Sir Edward Pojnings being tlien Lord Deputy, whence tliej are called Poynings' laws), one of which, (b), in order to restrain the power as well of the deputy as of the Irish parliament, provides, — 1. That, before any parliament be summoned or holden, the chief governor and council of Ireland shall certify to the king, under the great seal of Ireland, the considerations and causes thereof, and the articles of the acts proposed to be passed therein ; and 2. That after the king, in his council of England, shall have considered, approved or altered the said acts or any of them, and certified them back under the great seal of England, and shall have given licence to summon and hold a parliament, then the same shall be summoned and held ; and therein the said acts so certified, and no other, shall be proposed, received, or rejected (c). But as this precluded any laws from being proposed but such as were pre-conceived before the parliament was in being, which occasioned many inconveniences, and made frequent dis- solutions necessary, it was afterwards provided by the Irish statute of 3 & 4 Ph. & Mary, c. 4, that any new propositions might be certified to England in the usual forms, even after the summons and during the session of parliament. Still, however, there was nothing left to the parliament in Ireland, but a bare negative or power of rejecting, not of proposing or altering any law.] But the usage afterwards was, that bills were often framed in either house, under the denomination of " heads for a bill or bills :" and in that shape they were offered to the con- sideration of the lord lieutenant and privy council : who, upon such parliamentary intimation, or otherwise upon the application of private persons, received and trans- mitted such heads, or rejected them without any trans- mission to England. With regard, however, to " Poyn- ings' laws " in particular, none of them could be repealed or suspended unless the bill for that purpose, before it (/>) Irish Stat. 10 Hen. 7, c. 4, (^0 4 Inst. 353. expounded by 3 & 4 Ph. & M. c. 4. S. IV.] COUNTRIES STJUECT TO THE LAWS OF EXOLANT). 95 was certified to England, had been approved Ly both houses {■) 3 & 4 Will. 4, 0. 85, s. 65. 34 & 35 Vict. c. G2, and 37 & 38 (.s) Sect. 43. Vict. c. 13. S. IV,] COUNTRIES SUBJECT TO THE LAWS OF EN'GLAND. 113 the territories of India were to continue under the govern- ment of the East India Company until 30th April, 1854, but before the arrival of that time it was provided by another statute (16 & 17 Yict, c. 95) that even after that time these territories should so continue until parliament should otherwise provide. Such new provision, however, was in fact shortly afterwards made, and it was hastened by circumstances of an unexpected and disastrous kind. The Sepoy soldiery in India, having been led early in 1857 to entertain the belief that government was about to compel them in the course of their military duty to bite cartridges greased with the fat of certain animals (an act abhorrent from the Hindoo superstition, and fatal to caste), broke out into open mutiny, which soon ripened into an extensive rebellion of the natives in general against the British power, in the course of which many fearful atrocities were committed by them, and which was not suppressed till the close of 1858. Under these circum- stances it appeared to parliament in the course of that year that a time had now arrived at which, for the more effectual administration of affaii^s, it was expedient that the crown should take to itself the sole and unqualified dominion over India; and by 21 & 22 Yict. c. lOG (in- tituled An Act for the better Grovernment of India), it was accordingly provided that all powers and rights vested in the East India Company in trust for her Majesty should cease, and should become vested in her and be exercised in her name {//) ; and, conformably to this, the Act was soon afterwards followed by a proclamation of the Queen in council to the princes, chiefs and people of India, in which she formally claimed their allegiance. This Act contains — besides the establishment of its general principle (z), and the determination of the functions and powers theretofore vested in the Court of Directors (y) Some years later, \-iz., in Vict. c. 17. 1874, the "Company was dissolvcil (:;) 21 & 22 Vict. c. 106, s. 1. by Act of Parliament, 3G & 37 VOL. I. I 114 INTRODUCTION. and Court of Proprietors in relation to the government of India (a), and the abolition of the Board of Control (Z*), and the provision that all persons v/ho then held offices, employments or commissions, under the company in India, should thenceforth be deemed to hold them under her Majesty and he paid out of the revenues of India (r) — a variety of enactments as to the manner in which the busi- ness to be transacted in this country, in relation to the Indian government, and the correspondence therewith, should in future be conducted {d) . But of these our limits enable us to say no more, than that such business and correspondence are to be conducted by a principal secretary of state in council (e) ; and that such council — of which he is to be president, with a power himself to vote(/) — is to consist of fifteen members under the style of the " Council of India," by way of distinction from the council of the governor-general already established in that country {[/) ; and that the members of the council are to be salaried {/t), and are to hold office during good behaviour (/), but are not to be capable of sitting or voting in parliament (/.) . It will be expedient, however, to specify another of the enactments of this statute, namely, that all Acts and provisions then in force, under charter or otherwise concerning India, shall, subject to the provisions of the statute, continue in force; and be construed as referring to the secretary of state in council, in lieu of the company and the court of directors and coui't of proprietors thereof (/). (ff) 21 & 22 Vict. c. 106, s. 50. also 39 & 40 Vict. c. 7. (/.') Sect. 61. {I) 21 & 22 Vict. c. 106, a. 04. (r) Sect. 58. Some of the principal statutes re- {d) Sect. 19. lating to India prior to 1858 arc {c) Sects. 3, 21. referred to sup. pp. 110, 111. In (/) Sect. 2 1 . addition to those, th e following may (ff) Sect. 7. be here noticed. As to administra- (A) Sect. 13. tion of justice, 37 Geo. 3, c. 142 ; (0 Sect. 11. 39 & 40 Geo. 3, c. 79 ; 4 Geo. 4, {k) Sect. 12. As to the constitu- c. 71 ; 6 Geo. 4, c. So; 9 Geo. 4, tion of the "Council of India," sec c. 74. As to trade with India and S. IT.] COUNTRIES SUMECT TO THE LAWS OF ENGLAND. 115 Witli a view to the recognition of the transfer of govern- ment from the East India Company to her Majesty by the 21 & 22 Yict. c. 106, above mentioned, it was subsequently thought expedient that an appropriate alteration should take place in the style and titles appertaining to the Im- .perial Crown of the United Kingdom and its depen- dencies ; and accordingly, under the 39 & 40 Vict. c. 10, and a Royal Proclamation made under its authority, her Majesty, in the year 1876, added to her previous style and title the words " Empress of India." [With regard to any foreign dominions which may happen in the course of events to belong to the person of the sovereign by hereditary descent, by pm'chase or other acquisition — as these do not in anywise appertain to the crown of these kingdoms, so they are entirely unconnected with the laws of England, and do not communicate with this nation in any respect whatsoever. Cliina, 3 & 4 Will. 4, c. 93 ; 3 & 4 Vict. c. 56; 16 & 17 Vict. c. 107, ss. 327, 329 ; 17 & 18 Vict. c. 104, 8. 108. As to the dii-ectors, the presidencies, the governor-general and his council, and the age, quali- fications and appointmeut of mem- bers of the civil or military service of the company, 5 «& 6 Will. 4, c. 52 ; 16 & 17 Vict. cc. 95, 107 ; 17 & 18 Vict. c. 77. The statutes relating to India which have passed since the 2 1 & 22 Vict. c. 106, comprise the follow- ing: — As to revenue, &c., 22 Vict. c. 11 ; 22 & 23 Vict. c. 39 ; 23 & 24 Vict. cc. 5, 102, 130 ; 24 k 25 Vict. cc. 3, 25, 118 ; 25 & 26 Vict. c. 7; 26 & 27 Vict. c. 73 ; .32 & 33 Vict. c. 106; 34 & 35 Vict. c. 29 ; 36 & 37 Vict. c. 32; 37 & 38 Vict. c. 3; 40 & 41 Vict. c. 51. As to loans to India, 44 & 45 Vict. c. 54 ; 45 & 46 Vict. c. 79 ; 48 & 49 Vict. cc. 28, 67. As to India stock, 44 & 45 Vict. c. 63 ; and unclaimed stock, 48 & 49 Vict. c. 25. As to the army and naval force, 23 & 24 Vict. c. 100 ; 29 & 30 Vict. c. 47 ; 31 & 32 Vict. c. 38 ; 37 & 38 Vict, c. 61 ; as to the marines, 47 & 48 Vict. c. 38. As to the civil ser- vice, 24 & 25 Vict. c. 54 ; 33 & 34 Vict. c. 3. As to the council of the governor-general, and the go- vernment of the presidencies and provinces, (fee, 24 & 25 Vict. c. 67; 28 & 29 Vict. c. 17 ; 32 & 33 Vict, cc. 97, 98; 33 & 34 Vict. c. 3; 34 & 35 Vict. c. 34; 37 & 38 Vict. c. 91. As to the courts of justice, &c., 24 & 25 Vict. c. 104 ; 28 & 29 Vict. c. 15 ; 34 & 35 Vict. c. 34 ; 37 & 38 Vict. c. 27. As to the "elder widows' fimd," 36 & 37 Vict. c. 17 ; 41 & 42 Vict. c. 47. As to the "Bombay civil fund," 45 & 46 Vict. c. 45. 2 116 INTRODUCTION. [We come now to consider the kingdom of England in particular, tlie immediate subject of those laws, which we are to treat of in these Commentaries. But first let us observe that the high seas are, in one sense, part of the realm of England, for thereon our courts of admiralty have jmisdiction ; but they are not subject to the common law{)n). The high seas begin at the low water-mark; between the high water-mark and the low water-mark, where the sea ebbs and flows, the common law and the admiralty have an alternate jurisdiction ; one upon the water, when it is full seo., the other upon the land, when it is an ebb (;/). The territory of England is liable to two divisions ; the one ecclesiastical, the other civil (o). I. The ecclesiastical division is, primarily, into two provinces, those of Canterbury and York. A province is the circuit of an archbishop's jurisdiction. Each pro"vdnce contains divers dioceses, or sees of suffragan bishops {p) ; and every diocese is divided into archdeaconries, each {m) Co. Litt. 260. The extent mation will be fovuid in the preface of admii-alty jurisdiction in respect to the Population Abstract of 1831, of offences committed by foreigners vol. i. p. xiv. •within three miles of the English (j^j) Bishops are here tenncd "suf- coast was much discussed in the iragan^' [a-wovd. signiiyhig dcjmti/) case of The Queen v. Keyn, Law in relation to theu' archbishop (Co. Rep., 2 Ex. D. 63, and has now Litt. by Harg. 94 a, note (3)). As been made the subject of express to " suffragan bishops " in relation legislation. See 41 & 42 Vict. c. 73 to the bishop of then- diocese, A'idc (The TeiTitorial Waters Jurisdic- post, bk. iv. pt. ii. c. i. It may be tion Act, 1878). See also the Sea remarked tha,t bishoimcs or dio- Fisheries Act, 1883 (46 & 47 Vict. eeses are almost as antient as the c. 22), regulating the North Sea introduction of Christianity. Of fisheries outside tenitorial waters ; those now extant, the greater num- also, the Submarine Telegraphs ber were formed in Saxon or in Act, 1885 (48 & 49 Vict. c. 49). British times. (Report on Rcli- («) Finch, L. 78 ; Constable's gious Worship, p. xxxvii.) See case, 5 Rep. 107 a. 35 & 36 Vict. c. 14, an Act for the {o) As to the territorial divisions alteration of the boundaries of dio- of England, some valuable iiifor- cckcs. S. IV.] COUNTRIES SUHJECT TO THE LAWS OF ENOLAM). 117 [arclideaconry into rural deaneries, and every rural deanery is divided iuto parishes {q). A parish is that circuit of ground which is committed to the charge of one parson, or vicar, or other minister liaving cure of souls therein (>•). How antient the division of parishes is, may at present he difficult to ascertain ; for it seems to he agreed on all hands, that, in the early ages of Christianity in this island, parishes were unknown, or at least signified the same that a diocese does now (s). There was then no appropriation of ecclesiastical dues to any particular church ; but every man was at liberty to contribute his tithes to whatever priest or church he pleased, provided only that he did it to some ; or if he made no special appointment or appropriation thereof, they were paid into the hands of the bishop, whose duty it was to distribute them among the clergy, and for other pious purposes, according to his own discretion {t). Mr. Camden says, England was divided into parishes by Archbishop Honorius, about a,d. 636 (ti). Sir Henry Hobart lays it down, that parishes were first erected by the council of Lateran, which was held a.d. 1179 (.^•). Each widely differing from the other, and both of them perhaps from the truth ; which will probably be found in the medium between the two extremes. Eor Mr. Selden has clearly shown (y) that the clergy lived in common, {q) Co. Litt. 94. Tho number (a) SeeCliitty'sBlackstone, vol. i. of parishes and population of each p. 106, n. ; and 3 Burn, Ec. L. 60, diocese in 1831 arc given in the 7th ed. ; Hall. Mid. Ages, vol. ii. Population Abstract of that year p. 205, 7th cd. (vol. i. p. xix.). (t) Sold, of Tith. 9, 4; 2 Inst, (;■) " rarochia est locus in quo 616; Slade v. Drake, Hob. 296. degit populus alicujus ecelesice.'''' — As to the modern law of tithes, see 5 Kep. 67 a, JcfEcry's case. (Sec 6 & 7 Will. 4, c. 71, et post, bk. iv. ShariDley v. Overseers of Maple- pt. ii. c. in. thorpe, 3 Ell. & Bl. 906.) It is (m) Sec Camden's Britannia, stated in the Population Abstract vol. i. p. ccxxviii. of 1831 (vol. i. p. xviii.) that tho {x) Slade v. Drake, ubi sup. number of parishes and parochial And sec Bishop of Winchester's chapch-ies at that period inEngland case, 2 Rep. 44 b. and Wales might, for any general [y) Seld. of Tithes, c. 9. puipose, be sai'dy taken at 10,700. 118 INTKODliCTlON. ["without any division of parishes, long after the time mentioned by Camden. And it appear from the Saxon laws, that parishes were in being long before the date of that council of Lateran to which they are ascribed by Hobart. We find the distinction of parishes, nay even of mother- churches, so early as in the laws of King Edgar, about the year 970. Before that time the consecration of tithes v/as in general arhitrary ; that is, every man paid his o^\ti, (as was before observed,) to what church or parish he pleased. But this being liable to be attended with either fraud, or at least caprice, in the persons paying ; and with either jealousies or mean compliances in such as were competitors for receiving them ; it was ordered by a law of King Edgar, that " dentur omnes decimce ^jr/;>?r/r/fls cccksue ad qiunn parocMa pcrtinct^^ (s). However, if any thane, or great lord, had a church, within his own de- mesnes, distinct from the mother-church, in the nature of a private chapel ; then, provided such church had a ceme- tery or consecrated place of burial belonging to it, he might allot one-third of his tithes for the maintenance of the officiating minister : but if it had no cemetery, the thane must himself have maintained his chaplain by some other means ; for in such case all his tithes were ordained to be paid to the priman'a ccclesia or mother-church {a) . This proves that the kingdom was then generally divided into parishes, which division happened probably not all at once, but by degrees. And it seems pretty clear and certain, that the boundaries of parishes were originally ascertained by those of a manor or manors ; since it very seldom happens that a manor extends itself over more parishes than one, though there are often many manors in one parish. The lords, as Christianity spread itself, began to build churches upon their own demesnes or wastes, to accommodate their tenants in one or two adjoining lordships ; and, in order to have divine service (r) C. 1. King Canute, c. 1 1 , about the year \n) C. 2. See also the Laws of 1030. S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 119 [regularly performed therein, oLliged all tlieir tenants to appropriate their tithes to the maintenance of the one officiating minister, instead of leaving them at liberty to distribute them among the clergy of the diocese in general ; and this tract of land, the tithes whereof were so appropriated, formed a distinct parish, — which will well enough account for the frequent intermixture of parishes one with another. For if a lord had a parcel of land detached from the main of his estate, but not sufficient to form a parish of itself, it was natural for him to endow his newly-erected church with the tithes of those disjointed lands, especially if no chm-ch was then built in any lordship adjoining to those outlying parcels. Thus parishes were gradually formed, and parish churches endowed with the tithes that arose within the circuit assigned. But some lands, either because they were in the hands of irreligious and careless owners, or were situate in forest and desert places, or for other reasons, were never united to any parish, and therefore continue to this day extm-parocJiial ; and their tithes are now by immemorial custom payable to the king, instead of the bishop, in trust and confidence that he will distribute them for the general good of the Church {h).'\ As a parish is an ecclesiastical division, so the persons who bear the chief authority in a parish, as such, viz. the rector, (or vicar, or perpetual curate,) and the chm-ch- warclens, are also of an ecclesiastical character ; and the nature of their offices and duties is a subject that conse- quently belongs not to the present part of the work, but to [h) 2 Inst. 617 ; Bishop of Win- the bed of a public na^-igablc river; Chester's case, 2 Eep. 44 ; "Wright but either may belong to the ad- V. Wright, Cro. Eliz. 512. In the johiing parish. See 20 Vict. c. 19, Population Abstract of 1831 (vol.i. an Act to provide for the relief of p. xxii.) extra-parochial places are the poor and other purposes in stated to have been usually the extra-parochial places. And as sitoof royal palaces, religioushouses to the repair of the highways in or antient castles. The sca-shoro such places, 25 & 2G Vict, c, Gl, is ^rJ/Hrt /«£■(> oxtra-parochial ; also, s. 32. 120 I^'TRODI:cT[ON. that division in wliich we sliall have occasion to treat of the law of the Church (e). It is material, however, to observe, here, both as to parishes and parochial officers, that though primarily and properly they have relation to ecclesiastical purposes, yet there are some secular aspects in which they also require to be considered. For there has been a gradual tendency, more particularly in modern times, to treat a parish as a civil, not less than an ecclesi- astical division. Thus the collection of the poor-rate, or fund for the relief of the poor, and in a general point of view its application also, is imvochlal ; and the case is the same with respect to several other species of local taxa- tion {d). The affairs of a parish, as such, (whether civil or'ecolesiastical,) are regulated in rcstry, which is, properly speaking, an assembl}^ of the minister, churchwardens and parishioners, — that is, of such of the parishioners as con- tribute to the public burden (e) — and which, from being commonly held in the " vestry " adjoining or belonging to the church, takes its name from thence, as the place itself does from the priest's vestures, which are usually deposited there (/) . The vestry is summoned, or called together, by the churchwardens, with the consent of the minister {g) ; who has been generally considered as entitled, when pre- (c) Vide post, bk. rv. pt. ii. or some ecclesiastical or cliaritable id) See 23 & 24 Vict. c. 51, object or purpose approved by tbe providing for an annual return of bishop ; nor in the vestry room taxes, rates, tolls and dues levied attached to the church, except in for local purposes ; in which, how- cases of urgency and with previous ever, the poor's-rate is not included. approval of the Poor Law Board ; {e) Steer's Par. L. 2.53. but that the same shall be held in (/) By 13 & 14 Vict. c. 57, the such other room as shall be pro- Poor Law Board may, upon appli- Aided within the parish. And by cation of the churchwardens, pur- 21 & 25 Vict. c. 125, provisions arc suant to a resolution of vestry in made for the purchase by the over- nny parish where the population seers with the consent of the vestrj^ exceeds 2,000 by the then last (in parishes whose population ex- census, make an order that no cecds 4,000) of fit offices for the meeting shall be held in the parish transaction of parish business. ■ church except for divine worship {(/) Steer's Par. L. 252. S. IV.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 121 Bent, to preside at the meeting (//) ; and its principal rights and duties are those of investigating and controlling the expenditure of the parochial funds, and electing certain of the parochial officers, though there are various other matters in which it possesses an authority (/). TVe here speak of its original character at common law : hut it is liable to modifications in particular places by force of special custom or enactment (/i) ; and is regulated besides by the general Yestry Act, 58 Gfeo. III. c. 69 (/),— amended by 59 Geo. III. c. 85, and by 16 & 17 Yict. c. 65. By these statutes (;>?), a vestry is not to be sum- moned except on three days' notice (») ; and when it meets, a chairman is to be appointed, unless the rector, vicar, or perpetual curate, is present ; and the chairman shall have the casting-vote and sign the minutes of the proceedings. They also contain provisions as to the right of voting ; which is adjusted upon a certain scale, having relation to the amount in which the voter is assessed to the relief of the poor(o). The constitution of vestries is moreover in some places regulated by 1 & 2 Will. lY. c. 60 {])) ; which provides for the election, by the ratepayers, of a certain number of vestrymen and auditors, under whose manage- (/;) Wilson v. Math, 3 B. & Aid. Building Acts for ecclesiastical 241, n. (i) ; see Mawley v. Barbct, piii-poses only, and not separately 2 Esp. 687. maintaining its otvti poor. (See (i) Steer's Par. L. 257; and see The Queen r. Barrow, Law Eep., 58 Geo. 3, c. 69, s. 6; 1 & 2 Will. 4, 4 Q. B. 577.) c. 60, ss. 27, 39. («) By 7 WiU. 4 & 1 Vict. c. 45, {k) Steer's Par. L. 2G0 ; and see the notice for calling a vestry is to Gelding v. Fenn, 7 Barn. & Cress. be affixed on or near the chui'ch 765; R. r. Brain, 3 B. & Adol. 614; door, -without any publication (as R. V. St. Martin's in the Fields, ibid. formerly) in the parish church. 907; E,. f. Clcrkenwell, 1 Ad. & Ell. (o) As to voters in aiTcar of 317. rates, see 16 & 17 Vict. c. 65. As {l) Known as " SturgesBoiu-ne's to the manner of voting, see R. v. Act." (See Reg. v. D' Oyly, 1 2 A. Rector of Birmingham, 7 Ad. & El. & E. 139.) 254. (;«) These Acts do not extend to {p) Known as "Sir J. Hobhouse's London or Southwark, or to any Act." (Sec Reg. r. Hedgcr, 12 A. parish created imdcr the Church & E. 157.) 122 INTRODUCTIOX. ment the parochial accounts are to be kept and audited {q) . This statute has no application, however, to parishes not forming part of a city or town, and not having- more than 800 ratepayers : and the adoption of its arrangements is in no case compulsory : no parish being subject to them unless it voluntarily consents to place itself under the Act. There is a statute also of 59 Greo. III. c. 12, which em- powers parishes to establish vestries of a certain descrip- tion for the management of the poor ; and, as far as their- relief is concerned, the bodies so appointed supersede the authority of the ordinary parish officers : though they are themselves, on the other hand, by a subsequent enactment, made subject to the control of the Poor Law Board (r). On the subject of parishes it only remains to be observed, that, by certain statutes lately passed for extending church accommodation, and making more effectual provision for the cure of souls («), — it is provided that by such autho- rities and under such circumstances, and with such con- sents, as therein specified, any part or parts of any parish may be constituted a separate district {t), for spiritual purposes ; and that any parish may also be divided into {q) R. V. St. Pancras Tinistees, 5 vestry dcrJc, whose duties tlic Act Ncv. & M. 219 ; E. f. Vestry of St. defines. Mary-le-bone, 5 Ad. & El. 268. By («) The most important of these 18 & 19 Vict. c. 120, s. 1, the stat. statutes are 58 Geo. 3, c. 45; 59 1 & 2 Wilh 1, c. CO, is repealed as Geo. 3, c. 134 ; 6 & 7 Will. 4, c. to the metropolis ; and vestries of a 77 ; 3 & 4 Vict. c. 113 ; 6 & 7 Vict, new constitution created there. c. 37 ; 7 & 8 Vict. c. 94 ; 19 & 20 (>•) See 4 & 5 Will. 4, c. 7G, ss. Vict. cc. 55, 104. (See also as to 21, 54 ; 10 & 11 Vict. c. 109, s. 10; division into separate benefices, 1 & Queen t;. Green and others, 21 L.J. 2 Vict. c. 106, s. 16; 2 & 3 Vict. (M. C.) 137. See also 13 & 14 Vict. c. 49, s. 6.) A further account of 0.57, enabling the Poor Law Board these statutes will be foimd, post, upon api)lication of the church- bk. rv. jjt. ii. c. iv. wardens, pursuant to a resolution {I) See 6 & 7 Vict. c. 37, s. 10 ; of vestry, in any parish where the 7 & 8 Vict. c. 50, s. 6, as to the population exceeds 2,000 by the registration of a map or plan of then last ceusus, to make an order the boimdaries of districts formed for the aiipuiutmcnt of a paid under these Acts. S. 1\'.] COUNTRIES SUBJECT TO THE LAWS OF ENGLAND. 123 two or more distinct and separate parishes, for all eccle- siastical purposes whatsoever {ii). In pursuance of which provisions many such new constitutions and divisions have, for piu'poses of that description, accordingly taken place (,r). And thus much for the ecclesiastical division of this kingdom. II. [The civil division of the territory of England is into counties, of those counties into hundreds, of those hundreds into tithings or towais. This division is of remote and undefined antiquity ; and was not peculiar to England, similar distributions liaving been in use among several nations of the continent {//). As to the tithings, they were so called, from the Saxon, because ten free- holders with their families composed one. These all dwelt together, and were sureties or free pledges to the king, for the good behaviour of each other ; and if any offence was committed in their district, they were bound to have the offender forthcoming (::). And therefore antiently no man was suffered to abide in England, above (») Sec also 45 & 46 Vict. e. 58. Some of the Acts also authorized the estabhshment of select vestries for ecclesiastical purposes (see 59 Geo. 3, c. 134, s. 30 ; 3 Geo. 4, c. 72, s. 10) ; but these vestries have been, abolished by 14 & 15 Vict. c. 97, s. 23. {x) AVith respect to parishes, see 2 & 3 Vict. c. 62, S9. 34—36 ; 3 & 4 Vict. c. 15, 8. 28 ; 8 & 9 Vict. c. 118, 8. 39; and 12 & 13 Vict. c. 83, providing that the antient boundaries between parishes and townships may be adjusted, or new boundaries defined (see H. v. Made- ley, 15 Q. B. 43). See also the Stat. 5 & 6 Vict. c. 18, authorizing the sale of parish property and paying parish debts out of the poor rate;— the 19 & 20 Vict. c. 50, enabling parishioners, &c. to sell advowsons held by or in trust for them ; " the 23 & 24 Vict. c. 30, enabling two-thii-ds of the rate- payers of a j)arish to make rates for maintaining public walks, «S:c. therein; and the 45 & 46 Vict, c. 15, providing for the api)lication of the compensation paid to pa- rishes on the extinction of their rights of common. (y) The division has been ascribed to Alfred, but Mr. Ilallam ques- tions his claim to the distinction, and observes that counties are men- tioned in the Laws of Ina. (See Hallam's Middle Ages, vol. ii. pp. 389, 402.) (--) Flet. 1, 47. 124 INTRODUCTION. [forty clays, unless lie were enrolled in some tithiag or decennary {a). One of tlie principal inhabitants of the tithing was annually appointed to preside over the rest, being called the tithingman, the headborough, (words which speak their own etymology,) and in some counties, the borsholder, or borough's-ealder, being supposed the disereetest man in the borough, town, or tithing (b). Tithings, towns, or vills, are of the same signification in law ; and are said to have had each of them originally a church and celebration of divine service, sacraments and burials : though that seems to be rather an ecclesi- astical than a civil distinction {c). The word fo>rn {d) or rill is indeed, by the alteration of times and language, now become a generical term, comprehending under it several species and varieties.] Taken in this sense, towns are distinguished from each other as being either corpo- rate or not corporate ; the townsmen forming, in the first kind, a coryoratiou, that is, a society, with certain legal properties and capacities, on the nature of which we shall treat at large in a subsequent division of these Commen- taries ; and shall at the same time consider the provisions of the Act for regulating municipal corporations (45 & 46 Vict. c. 60), by the effect of which, all towns of this description are now placed under one uniform plan of internal government (/) ; and this sub-division of counties has been recently carried to a great length, and boroughs also have been sub-divided, by the Bedistribution of Seats Act, 1885 (48 & 49 Yict. c. 23). For the object of local taxation, too, the division into counties is of practical effect and importance ; for as each parish is subject to a rate for relief of the poor, so is every county to a county (u) Formerly actions in the su- mitted elsewhere may, neverthe- peiior courts of a local character less, be ordered to be tried in that were tried in the county in -which court. And by the Mutiny Acts, the cause of action arose. But persons subject to those acts may there is now no local venue in ac- be tried in any place where they tions brought in the High Court may be found after the commission of Justice, and the place of trial is of the offence. These jirovisions arranged in a different way. (Sec may be considered as by way of Orders and Rules of 1S83, Order exception to the principle stated xxxvi.) in the text. See also the 39 & 40 {x) By 4 & 5 Will. 4, c. 36, was Vict. c. 57, extended by 40 & 41 established the " Central Criminal Vict. c. 46 ; and 42 & 43 Vict. c. 1, Court," for trial of offences com- uniting counties together fur the mitted in London, Middlesex, and purpose of trj-ing prisoners, some parts of Essex, Kent, and (y) 2 & 3 WiU. 4, c. 45, ss. 12, 13, Surrey; and by 10 & 20 Vict. c. 10, 14, and sec 21 & 25 Vict. c. 112, persons charged with offences com- ss. 1, 7. S. IV.] COUNTRIES SUBJECT TO THE J-AW.^ OF ENGLAND. 129 rate, wliicli is levied on the occupiers of land within the county under the authority of various acts of parliament {z), and applied to many miscellaneous purposes («). [Three counties, viz. Chester, Durham, and Lancaster, arc counties palatine. The two former are such by prescription or immemorial custom, or at least as old as the Norman Conquest {h) ; the latter was created a county palatine by King Edward the third, in favour of Henry Plantagenet, first Earl and afterv/ards Duke of Lancaster (c) : whose heiress being married to John of Caunt, the king's son, the franchise was greatly enlarged and confirmed in parliament, to honour John of Graunt liimself {d) ; whom, on the death of his father-in-law, the king had also created Duke of Lancaster (e). Counties palatine are so called a pahtfio, because the owners thereof, the Earl of Chester, the Bishop of Durham, and the Duke of Lancaster, had for- merly in those counties jura regalia as fully as the king in his palace ; regalem potestatcm in omnibus, as Bracton expresses it (/). They might pardon treasons, murders, and felonies ; they appointed all judges and justices of the peace : all writs and indictments ran in their names, as in other couaties in the king's ; and all offences were said to (s) See 22Heu. 8, c. 5; 12 Geo. 2, apiilied, are the malntenauce of c. 29 ; 55 Geo. 3, c. 51. As to bor- the rural police, lunatic asylums, rowing money on Middlesex county gaols, and bridges. As to borrow - rate, see 8 & 9 Vict. c. 32. As to ing money for county purposes, see the assessment and collection of 35 & 36 Vict. c. 7, and 38 & 39 county rate, see 7 & 8 Vict. c. 33 ; Vict. c. 83. 15 & IG Vict. 0. 81 ; 21 & 22 Vict. {!>) Seld. Tit. Hon. 2, 5, 8. 0. 33; 29 & 30 Vict. c. 78; and (c) Pat. Rot. 25 Edw. 3, p. 1, East Looe v. Cornwall, 3 Best & m. 18 ; Sold, ubi sup. ; Sandford's Smith, 20. See also 5 & 6 Will. 4, Gen. Hist. 112 ; 4 Inst. 204. c. 76, s. 92 ; 17 & 18 Vict. c. 71, as {d) Cart. Rot. 36 Edw. 3, m. 9. to borough rates in the nalurc of {e) Pat. Rot. 51 Edw. 3, m. 33; county rates. Case of Duchy of Lancaster, Plowd. {a) See County Rate Com. Rep. 215; 7 Rym. 138. (16 June, 1836). Among the pur- (/) L. 3, c. 8, s. 4. poses to which the county rate is A"()T,. I. K 130 INTRODUCTION. [be done against tlieir peace, and not, a'3 in other places, coufra 2Mcem domini rcjls {[/). As to whicli indeed it may be remarked tliat by tlie antient law, in all peculiar jurisdictions, offences were said to be done against bis peace in whose court they were tried : in a court leet, contra pacem domini ; in the court of a corporation, contra pacem haUivonini ; in the sheriff's court or tourn, contra jMcem vice-corn itis (h). Tliese palatine privileges, so similar to the independent regal jurisdictions usurped by the great barons on the continent during the weak and infant state of the first feodal kingdoms in Europe (/), were in all probability originally granted to the counties of Chester and Dui'ham, because they bordered upon inimical countries, Wales and Scotland ; in order that the inhabitants, having justice administered at home, might not be obliged to go out of the county, and leave it open to the enemy's incursions ; and that the owners, being encouraged by so large an authorit}^, might be the more watchful in its defence. And upon this account also there were formerly two other counties palatine, Pembrokeshire and Hexhamshire (the hitter now united with Northumberland), but these were abolished by parliament ; the former in the twenty-seventh year of Ilenry the eighth, the latter in the fourteenth year of Elizabeth. In the twenty-seventh year of Ilenry the eighth, moreover, the powers before mentioned of owners of counties palatine were abridged ; the reason for their continuance having in a manner ceased (/.•).] And in modern times, alterations have taken place in regard to the administration of justice in tlie counties palatine, whicli have assimilated them in that matter to the rest of England. Thus by 11 Geo. IV. & 1 Will. IV. c. 70, the jurisdiction of the court of session of the county palatine of Chester was abolished, and the county sub- jected in all things to the jmisdiction of the superior {(j) 4 Iiist. 205. (i) See Robertson, Cha. V. i. GO. (//) Seld. in Ilcng. ITagn. c. 2. (/) Inst, iibi sup. S. IV.] COUNTRIES SI liJECT TO THE LAWS OF EXGLAND. 131 courts at Westmiuster; aud by the Judicature Act, 1873, the jurisdiction of tlie Court of Common Pleas of Lan- caster and the Court of Pleas of Durham was transferred to the High Court of Justice by that Act established (/). It is also to be remarked, that of the counties palatine none now remains in the hands of a subject. For the earldom of Chester, as Camden testifies, was united to the crown by Plenry the third, and has ever since been one of the titles of the sovereign's eldest son [vi) ; and the palatine jurisdiction of Durham, which was long vested in the Bishop of Durham for the time being, was taken from him by 6 & 7 AVill. IV. c. 11) (amended by 21 & '^2 Yict. c. 4'j), and vested as a separate franchise and royalty in the crown. [As to the county palatine or duchy of Lan- caster, it was the property of Henry Bolingbroke, the son of John of Graunt, at the time when he wrested the crown from King Richard the second, and assumed the title of Henry the fourth. But he was too prudent to suffer his duchy to be united to the crown ; lest if he lost the one he should lose the other also. For as Plowden (») and Sir Edward Coke (o) observe, " lie knew he had the duchy of " Lancaster by sure aud indefeasible title, but that his " title to the crown v/as not so assured : for that after the " decease of Richard the second the right of the crown was " in the heir of Lionel Duke of Clarence, second son of " Edward the third ; John of Gaunt, father to this Henry *' the fourth, being but the/b;^r/// son." And therefore he procured an Act of Parliament, in the first year of his reign, ordaining that the duchy of Lancaster, and all other his hereditary estates, with all their royalties and fran- chises, should remain to him and his heirs for ever ; and should remain, descend, be administered aud governed in (/) 36 & 37 Vict. c. 06, s. 16. [m) C;imJcn's Britiinuia, vol. iii. As to the chat tec ry court of the p. 46. county palatine of Lancaster, see [n) P. 215. 13 & 14 Vict. c. 43 ; and 21 & 22 {o) 4 lust. 205, Vict. e. 27. K 2 132 INTRODUCTION. [like manner as if he never had attained the regal dignity ; and thus they descended to his son and grandson, Henry the fifth and Henry the sixth: many new territories and privileges being annexed to the duchy by the former (j)). Henry the sixth being attainted in the first year of Edward the fourth, this duchy Avas declared in parliament to have become forfeited to the crown (q) ; and at the same time an Act was made to incorporate the duchy of Lancaster, to continue the county palatine — which might otherwise have determined by the attainder (r), — and to make the same parcel of the duchy : and, fm-ther, to vest the whole in King Edward the fourth and his heirs, Ja'nfjs of England, for ever ; but under a separate guiding and governance from the other inheritances of the crown. And in the first year of Henry the seventh, another Act was made to resume such part of the duchy lands as had been dis- membered from it in the reign of Edward the fourth ; and to vest the inheritance of the whole in the king and his heirs for ever, as amply and largely, and in like manner, form, and condition, separate from the crown of England and possession of the same, as the three Henrys and Edward the fom-th, or any of them, had and held the same(-s').] Witli regard to the Isle of Ely, we may observe that this was never a county j^^^^itine, though sometimes erroneously called so. It was, however, a royal franchise ; the Bishop of Ely having been formerly entitled, by grant of King Henry the first, to Jura rcf/alia within the district, whereby ho exercised a jurisdiction over all causes as well criminal as civil {t). But by G & 7 Will. IV. c. 87 (p) Tarl. 2 Ilcn. 5, m. 50; 3 notice here that by 18 & 19 Vict. Hen. 5, m. 15. c. 58, the chancellor and council of (//) Fishcx" V. Button, 1 Ventr. the Duchy of Lancaster are enabled 155. to sell and piu-chasc land on behalf (r) 1 Vontr. 1157. of her Majesty in right of the (s) A3 to the effect of this Act, Duchy, sec Plowd. 220, I, 2 ; Lamb. Ar- {t) 4 Inst. 220 ; see Grant v. cheion, 233 ; 4 Inst. 206. "We may Bagge, 3 East, 128. S. IV.] COUMKIES Sr INJECT TO THE LAWS 01-' EXGLAXD. 133 (amended by 7 Will. IV. & 1 Yict. c. 53), this secular authority of the bishop was taken away and vested in the crown. [There are also counties corporate — otherwise called couufic^ of cities or tonus — 's^"hich are certain cities and towns, some with more, some with less territory annexed, to which out of special grace and favour the kings of England have granted the privilege to be counties of themselves and not to be comiirisecl in any other county ; but to be governed by their own sheriffs and other magistrates (?/), so that no officers of the county at large have any power to intermeddle therein (r).] As counties corporate constitute no part of the counties in which they are locally situate, so they had formerly, in general, no share in voting for the members to serve for those counties in parliament. However, thirteen of the number were latterly included within their respective counties, so far as regards the right of election for knights of the shire (.r) ; and this practice has been largely adopted in the Eedistri- bution of Seats Act, 1885 (48 & 49 Yict. c. 23). And we may add, that by 38 Geo. III. c. 52, all offences com- mitted in a county corporate may be tried in the next adjoining county at lai'ge (y) ; a regulation from which certain towns and cities indeed were at first excepted, but almost the whole of these exceptions were repealed by the Act of 1835, for regulating municipal corporations (z), — a repeal which is continued by the Municipal Corporations Act, 1882. («) As to slieriffs of counties Other provisions as to counties cor- corporate, see 5 & G Will. 4, c. 70, porate not requii-ing specific notice 8. 61; and 6 & 7 Will. 4, c. 105, in the text are contained in 51 Geo. s. 5 ; and now 45 & 46 Vict. c. 50. 3, c. 100 ; 00 Geo. 3 & 1 Geo. 4, c. 4, [v) See 3 Geo. 1, c. 15; 5 & 6 s. 6 ; 7 Geo. 4, c. 64, s. 25 ; 9 Geo. WiU. 4, c. 76, ss. 61, 109. 4, c. 61 ; 5 & 6 Will. 4, c. 76, 6. [x) 2 & 3 Will. 4, c. 45, s. 17. 113 ; 2 & 3 Vict. c. 72 ; 17 & 18 ((/) See also 14 & 15 Vict. c. 55, Vict. c. 35 ; and see now the Muni- ss. 19, 21—24 ; and c. 100, s. 23. cipal Corporations Act, 1882 (45 (;) 5 & 6 Will. 4, c. 76, s. 109. & 46 Vict. c. 50). 134 INTRODUCTION. Thus much of the countries subject to the laws of Eug- lancl; the consideration of which involves, in a general point of view, that of the persons also, to whom these laws are applicable. Tor it is to be observed that all persons found within these territories fall under the operation of these laws, though in different degrees : British subjects — that is, persons born within any part of the dominions of the crown, (and in some cases their descendants also, though born in foreign parts,) and persons naturalized by Act of Parliament — being in a full and absolute sense entitled to the rights conferred by these law^s, and liable to the obligations they impose ; but aliens (or those who are not British subjects) in a limited sense only, as we shall have occasion more particularly to explain hereafter {a). (a) See 33 & 34 Vict. c. 14, an Act have occasion to speak fuiihcr in passed to amend in certain points onr second volume, where some the laAv relating to the legal coudi- account is given of the legal posi- tion both of aliens and of British tion of aliens in this country, subjects. Of this statute we shall NEW COMMENTARIES ON THE LAWS OF ENGLAND. BOOK I. OF PEESONAL EiaHTS. In a disquisition of such extent and variety as that on which we are about to enter, it is obviously of the first importance to lay down a proper preliminary arrangement of the subject ; and tlie plan of division which appears to be most suitable to a treatise of this description, is one founded on a consideration of the nature of municipal law in the abstract, and of the objects or purposes towards which it is directed. It will be necessary, therefore, to recur for a moment to the views taken of this subject in a preceding part of the work. We have seen that municipal law is a rule of civil conduct prescribed by the supreme power in a state (a) ; whose authority to prescribe it has been referred to the contract implied in civil society, that its members should submit to certain restraints of their natural freedom, in order to secure to each the enjoyment of defined liberties and advantages ; and these we have comprehended under the general name of rights {h). It results from these considerations, that in every country, the true and proper {ft) Vide Slip. p. 2.5. (/) Vide sup. p. 29. l.'3'G BOOK I. — OF TEUSOXAL IIIGHTS. objects of the law consist in tlie establishment and mainte- nance of the rights, severally due to the different members of the community. The idea of rights, however, naturally suggests the cor- relative one of irronr/s ; fOr every right is capable of being violated. A right to receive payment for goods sold (for example) implies a wrong on the part of him who owes, but withholds, the price ; and a right to live in personal security implies a wrong on the part of him who commits personal violence. And, therefore, while in a general point of view the law is intended for the establishment and maintenance of rights, we find it on closer examina- tion to be dealing both with rights and wrongs. It &st fixes the character and definition of rights, and then, with a view to their effectual security, proceeds to define wrongs, and to devise the means by which the latter shall be pre- vented or redressed. These considerations form the most convenient basis upon which to construct the principal division of the laws of England ; and we shall therefore sever them (like former writers) into two portions, one of which regards JRightu, and the other IFroinjs (c). But, again, if rights be analyzed, they will be found to consist of several kinds. For, first, they are such as regard a man's own person ; secondly, such as regard his do- minion over the external and sensible things by which he is surrounded ; thirdly, such as regard his private relations, as a member of a famil}^; fourthly, such as regard his social state or condition as a member of the community : the first of which classes may be designated as j^^'^^oiuil rights, the second, as rights of properfi/, the third, as rights ill lyrivate relations, and the fom-th, asjJiiblic rights. In these divisions of rights, it is to bo observed, that we everywhere mean to include the converse or reciprocal consideration of duties. For whatever is due to one man, {(■} Sec the Preface to Ilalc's Analysis of the Laws of England, and Bl. Com. vol. i. p. 122. BOOK I. — OF PEllSONAL IITGIITS, 137 or set of men, is necessarily due from anollier. Thus the right of one man to receive from another the price of a commodity sold, casts upon the latter the duty of paying that price ; and the general right of each individual to live in personal security, implies the converse duty on the part of others not to suhjeet him to any violence. The party, too, who possesses the right, is in general himself subject to some resulting duty. Thus the people have a right to live under the form of government established by law, and are under a corresponding duty of submission to that government. In the discussion of rights, therefore, it is often necessary to speak also of duties. Indeed, it is under the aspect of duties principally, that some rights require to be considered. To avoid, however, any misapprehension from the use of the term "duties," we may remark that there are some duties which have no connection with rights in the sense which we have affixed to the latter expression ; and of such duties our law consequently takes no cognizance. These are such as the law of Cfod or conscience prescribes, but the violation of which by the individual is attended with no direct mischief to others. Thus public sobriety is a duty recognized by the law, having regard to the right of each citizen to be protected from disgusting or contami- nating exhibitions of vice ; but private sobriety is not enforced by any legal sanction ; because secret intoxica- tion, though equally opposed, with open drunkenness, to conscience and the law of God, is no violation of any human right, nor is its commission, if by any means detected, a fit subject for human punishment. Wrongs also may be subdivided ; but as regards these we are necessarily led to adopt a different principle of distribution. For the leading distinction here depends not on the character of the right violated, but on the party who is supposed to sustain injury from its violation. According to the view which our law takes of this subject, the violation of a right "may in some instances amount to I'SS BOOK I. — OF PERSONAL RIGHTS. an injury to the particular individual only, but in others it may take the character of an injmy to the public at large (d). When viewed in the first aspect, it is usually called a civil iiijar//, xvlien in the last, a crime. Thus the withholding of a debt, is a wrong to the individual, and consequently a civil injury ; but it is considered as not affecting the public, and therefore it is no crime. On the other hand, to deprive a man of his money by theft or robbery, is held to be a WTong to the public, and therefore a crime ; though it is also a civil injury if considered in relation to the damage which the party individually sus- tains. The considerations ^^'hich tend to determine whether a given species of wrong shall be treated as an injury to the individual, or as an injury to the public, constitute a subject upon which it would be prematm-e to enter in this place, and which belongs to a later portion of the treatise. It is sufficient at present to have thus stated the general nature of the distinction between civil injuries and crimes, and to remark that it is one of great practical importance ; for the law deals very differently with the two kinds of wrong ; the former being merely a subject for redress, the latter for 2^unisJnnc)it. The extensive subject under consideration appearing tlms naturally to resolve itself into the several divisions above indicated, we shall adopt them for the purpose of the present work ; and our method, or order of discussion, Avill be as follows : — Book I. Of Personal Eights. II. Of Eights of Property. III. Of Eights in Private Eelations. IV. Of Public Eights. V. Of Civil Injuries ; including also the modes of Eedress which the law provides for them. VI. Of Crimes ; comprising also the modes of Criminal Prosecution. [(I) Sec i Bl. Com. pp. •^, C. 1500K I. — OF TERSONAL RIGHTS. 130 We are now first to consider Personal Rights, or those which relate to a man's own person. As these are the most important, so are they also the most simple of all that are secured to men by the institutions of society ; and the law has heen much less frequently employed in fixing their definition and boundaries, than in devising redress or punishment in case of their yiolation. The discussion of these rights will consequently lie in a comparatively nar- row compass. They consist of two principal or primary articles, the right of Personal SecKrit//, and the right of Persona/ Libert//. I. The right of Personal Security consists in a person's legal and uninterrupted enjoyment of his life and limbs, of his body, of his health, and of his reputation. 1. [Life is the immediate gift of Grod, a right inherent by nature in every individual; and it begins, in contem- plation of law, as soon as an infant is able to stir in the mother's womb (c) : indeed an infant en ventre sa mere is supposed to be already born for many purposes (/). And if a woman is quick with child, and by a potion or other- wise designedly killeth it in her womb ; or if any one beat her, with a like design, whereby the child dieth in her body, and she is delivered of a dead child ; this, though not murder, was by the antient law homicide or man- slaughter {[/).'] But by the modern law, the offence is, in neither case, considered in this light ; though to procure a miscarriage is, in all cases, a heinous crime : and if (c) The rule of tlie civil law is receive the profits for his own iise the same. (Ff. 1, o, 26.) till the birth of the child. (See (/) For example, such infant 331. Com. vol. 1, p. 130; Co. Litt. may take an estate as legatee, or 390 a; 12 Car. 2, c. 24, s. 8; by descent, or under the limitations 10 Will. 3, c. 22; Beale v. Eeale, of a deed, and it may also have 1 P. Wms. 245 ; Doe v. Clark, assigned to it a guardian. (See 2 H. Bl. 399 ; WaUis v. Hodson, Pearce v. Can-ington, Law Eep., 2 Atk. 117; Doe v. Lancashu-e, 8 Ch. App. 969 ; Occleston v. 5 T. R. 49 ; Goodtitlo v. Newman, FuUalove, ib., 9 Ch. App. 147.) 3 Wils. 526.) In case of descent, however, tlie {[/) Bracton, 1. 3, c, 4. presumptive heir may enter and 140 r,OOK I. — OF TEllSONAL RIGHTS, means be used, with intent to kill a cliilcl in the womb, and the child is horn alive, and afterwards dies by reason of the means so used, the case amounts to murder iji) . A man's limbs— by which we here intend those members which may be useful to him in fight, the destruction of which only amounts to niai/I/cm by the common law, — are also the gift of the wise Creator, to enable him to protect himself from external injuries in a state of nature. To these, therefore, as to life itself, he may be said to have a natural inherent right, which draws after it certain legal consequences to which we shall now advert. [A man's life and limbs are held of such high value by om' law that it pardons even homicide, if committed se defcndendo, or in order to preserve them. Indeed, what- ever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and com- pulsion. Therefore, if a man through fear of death or mayhem is prevailed upon to execute a deed, or to do any other legal act ; these, though accompanied with all other the requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-com- pliance (/). And the same is also a sufficient excuse for the commission of many misdemeanors, as will appear in the course of these Commentaries (/r). The constraint a man is under in these circumstances, is called in law duress (from the Latin dii rides), of which there are two sorts : duress of imprisonment, where a man actually loses his liberty ; and duress per minas, where the hardship is only threatened and impending ; the duress in each case being duress to the person, as opposed to duress to or through a man's goods ; and with the latter species of duress wo are not now concerned. Duress j;fr minas is either for fear of loss of life, or else for fear of mayhem or loss of limb. And this fear must be upon sufficient reason; that is, (as Bracton expresses it,) ^^ non suspieio {h) 3 Inst. 50. (0 2 Inst. 483. (/.) Vide post, bk. vi. BOOK 1. — OF TERSONAL RIGHTS. Ill [cujusUbei vani ct nieticulosi ho)ninis, sed talis qui possil cadcre in virum conntaidem ; talis cniin debet esse nietus, qui in se contineat vitce pericuhim, aut corporis cruciatuni^' (/). A fear of battery or being beaten, though well grounded, is no duress to the person ; neither is the fear of having one's house burned, or one's goods taken away and destroyed ; because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages ; but no suitable atonement can be made for the loss of life or limb (ui). The law not only regards life and protects every man in the enjoyment of it, but also furnishes him with every- thing necessary for its support. For there is no man so indigent or wretched, but he may demand a supply suf- ficient for all the necessities of life from the more opulent part of the community, by moans of the statutes enacted for the relief of the poor, of which in their proper place (/?).] These rights of life and member can only be deter- mined by the death of the person ; which is either a civil or a natural death (o). Civil death occurs where a man is outlawed or attainted ; for he loses thereupon (sub- ject to some exceptions) his civil rights and capacities, and becomes, as it were, dead in law(^;). It also took place, formerly, where any man, by the process of the common law, took sanctuary and abjured the realm (q) ; or entered into religion, that is, went into a monastery, and became there a monk professed : in both of which cases he was absolutely dead in law, and his next heir had his estate. [For sucli banished man was entirely cut off from society ; and such a monk, upon his profession, (?) Bract. 1. 2, c. 5; Co. Litt. (;/) As to tlio laws relating to the 162 a, 253 b ; see K. v. Southerton, poor, vide post, Lk. iv. pt. iii. c. ii. 6 East, 144. (o) Co. Litt. 132 a. (w) 2 Inst. 483. Blackstouc (vol. (jy) 3 Inst. 213; 4 Bl. Com. 380. i. p. 131) remarks that the doc- As to the doctrine of rt/i^rtiwr/tv, vide trine of the civil law with regard post, bk. vi. to duress agrees with our own, and {q) Co. Litt. 133 a ; Newsome r. cites Ff. 48, 21, 1-. Bowyer, 3 P. Wms. 37, n. (B). 142 BOOK I. — OF TERSOXAL RIGHTS. [renounced solemnly all secular concerns ; and besides, as the popish clergy claimed an exemption from the duties of civil life and the commands of the temporal magistrate, the genius of the English laws would not suifer those persons to enjoy the benefits of society, who secluded themselves from it, and refused to submit to its regula- tions. A monk was therefore accounted civilifcr inorfiiu'i: and when he entered into religion might, like other dying men, make his testament and executors; or, if he made none, the ordinary might grant administration to his next of kin, as if ]ie were actually dead intestate. And such executors and administrators had the same power, and might bring the same actions for debts due to the religious, and were liable to the same actions for those due//'o;;^ him, as if he were naturally deceased (r). Nay, so far was this principle carried, that in a case where one became bound in a bond to an abbot and his successors ; and afterAvards made his executors, and professed himself a monk of the same abbey, and in process of time was himself made abbot thereof : here it was held that the law gave him., in the capacity of abbot, an action of debt against his own executors to recover the money clue (.s) . In short, a monk or religious was so effectually dead in law, that a lease made even to a third person, during the life (generally) of one who afterwards became a monk, determined by such his entry into religion ; for which reason leases, and other conveyances for life, were usually made to have and to hold for the term of one's natural life (/).] But, even in the times of popery, the law of England took no cogni- zance oi 2)rqfessioii in any foreign country, because the fact could not be tried in our courts {u) ; and therefore, after the lleformation, it was held that civil death could no longer take place by profession (a-), nor (by the effect of {)■) Litt. s. 200. («) Co. Litt. 132 b. (.v) Co. Litt. 133 b. [x] Kcx v. Lady Portington, 1 (t) Arclibisliop of Canterbury's Salic. 1G2 ; and see In re Metcalfe, case, 2 Rep. 48 b ; Co. Litt. 132 a. 33 L. J., Cli. 308. HOOK T. — OF PERSONAL RIGHTS. 143 21 Jac. I. c. 28, s. 7, abolishing sanctuaries) by abjura- tion (//). This natui'al life being, as was before observed, the immediate donation of the great Creator, cannot legally be disposed of or destroyed by any individual, neither by the person himself, nor by any other of his fellow creatures, merely upon their own authority. Yet, nevertheless, it may be la-s^^Eully taken away (as before observed) in the necessary defence of life or limb {z) ; and is also capable of being forfeited for a breach of those laws of society which are enforced by the sanction of capital punishments ; of the nature, restrictions, expedience and legality of which we may hereafter more conveniently inquire in a subse- quent part of these Commentaries (a). At present it may suffice to observe, that it results from the very nature of the social compact, on which we have supposed all muni- cipal law to be founded {b), that no privation or restraint ought in any case to be inflicted on the individual, unless it be indispensable to the protection of some public interest of adequate importance. All laws therefore savour of injustice and oppression, which authorize the destruction of life in order to secure a public object of comparatively trivial character; or even an object of the highest con- sequence to the public, but capable of being sufficiently seeiu-ed by some more lenient method. We shall find accordingly, that, though the lav/ of England in some cases affects the life of the delinquent, it is only for the prevention of crimes of the deepest dye — the severity by which our penal system was once unhappily distinguished having been progressively, and now at length effectually, softened by the milder spirit of modern legislation. To this it may be proper to add, that our form of govern- ment, or constitution, is an utter stranger to any arbitrary power of killing or maiming the subject without the ex- press waiTant of law. \_'^Kt(niis liber homo^^ says the great (y) 1 Hale, P. C. G05. («) Vide post, bk. vi. (;) Vide sup. p. 140. (A) Vide sup. p. 28. 144 BOOK I. — OF PERSONAL RIGHTS. [cliarter, "aliqiio modo destritatur, nisi jjo- legale judicium 2)arium suorum aut per legem term" {c). Wliich words, ''aliquo modo destruatur," include, according to Sir Edward Coke [d), a prohibition not only of killing and maiming, but also of torturing (to wbich our laws are strangers), and of every oppression by colour of an illegal authority. And it was also enacted by a statute of 5 Edw. III. c. 9, that no man should be forejudged of life or limb, contrary to the great charter and the law of the land : and again, by statute 28 Edw. III. c. 3, that no man should be put to death without being brought to answer by due process of law.] 2. A man is also entitled, as to his whole body, to security from all corporal insults or injuries, whether by menaces, assaults, beating, wounding, or otherwise, though they may amount not to destruction of life or member. 3. To the preservation of his health from such practices as may prejudice or annoy it ; and 4. To the security of his reputation or good name from slander. But these three last articles it will suffice to have barely mentioned among personal rights. It is to their infringe- ment, rather than to the rights themselves, that the pro- visions of the laws have been in general directed; and a more convenient place for their further discussion will consequently be found in that part of the work wliich relates to Krongs {(). II. [Next to personal security, the law of England regards, asserts, and preserves the right of personal liberty. This personal liberty consists in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclination may direct, with- out imprisonment or restraint, unless by duo course of law. Concerning which we may make the same observa- (r) C. 29. (f) As to Wrongs, videijost, bk. v. {d 2 Inst. 48. ami bk. Vi. BOOK I. — OF TERSOXAL RIGHTS. 145 [tions as upon the preceding article ; that it is a riglit strictly natm-al ; that the laws of England never ahrldge it without cogent reason ; and that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. Here again the language of the Grreat Charter is, that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land (/). And many subsequent old statutes expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king or his council, unless it be by legal indictment, or the process of the common law {g). Again, by the Petition of Eight, (3 Car. I.,) no freeman shall be imprisoned or detained without cause shown, to which he may make answer according to law. So, also, by IG Car. I. c. 10, it was enacted, that if any person should be restrained of his liberty by order or decree of an illegal court, or by command of the king's majesty in person, or by warrant of the council board, or of any of the privy council ; ho should upon de- mand of his counsel, have a writ of liahcas corpus to bring his body before the court of King's Bench or Common Pleas ; who should determine whether the cause of his com- mitment were just, and thereupon do as to justice should appeitain.] And b}^ 31 Car. II. c. 2, commonly called the Habeas Corpus Act, amended and made more effectual by oG Geo. III. c. 100, the methods of obtaining this writ are so plainly pointed out and enforced, that, so long as this statute remains unlmpeached, no subject of England can be long detained in prison, except in those cases in which the law requires and justifies such detainer. More- over, lest the liaJicas coipus should be evaded by demanding unreasonable bail or sureties for the prisoner's appearance, it is declared by 1 "W". & M. sess. 2, c. 2, that excessive bail ought not to be required; though on the other hand, to prevent such abuses as are naturally apt to occur in the (/) C. 29. (y) 5 Edw. 3, c. 9 ; 25 Edw. 3, St. 5, c. 4 ; '28 Edw. 3. c. 3. VOT,. T. L 146 BOOK I. — OF PERSONAL RIGHTS. resort to a writ of this description, it is a rule witli the courts that they will not grant a habeas corpus as of course and without probable cause shown (A). [Of great importance to the public is the preservation of this personal liberty ; for if once it were left in the power of any, the highest, magistrate to imprison arbi- trarily whomever he or his officers thought proper, as in France was once daily practised by ihe crown, there would soon be an end of all other rights and immunities (/). Indeed, some have thought that unjust attacks, even upon life or property, at the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his estate, with- out accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny tliroughout the whole kingdom ; but confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes, when the state is in real danger, even tliis may be a necessary measure. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great, as to render this measure expedient ; for it is the p»arliament only (or legislative power) that, whenever it sees proper, by suspending the llaheas Corpus Act for a short and limited time, can enable the crown to impiison suspected persons, without the possibility of their obtain- ing tlieir discharge, during tliat period, by any inter- ference of the courts (/.•) ; as the senate of Home was wont (//) Hobhouse's case, 3 Barn, di: further iiiforniation respecting- the Aid. 420. And see 53 Geo. 3, statutes of Jiaheas corpus, y'lUm ])os,t, 0. 100, bj' the express provisions of Tol. iii. bk. v. c. xii. ■which there must, in the cases to [i) See 1 Bl. Com. p. 135. •which it applies, be "an affidavit (/.) The Habeas Corpus ■ Act was showing a probable and reasonable suspended by 57 Geo. 3, cc. 3, 55 ; frround" f(;r the romi)laint. For and .igain (so far as regards Ire- HOOK I. — OF PERSOXAL RlCillTS. 147 [to liave reeoursG to a dictator, a magistrate of absolute authority, when the j judged the republic in any imminent danger. The decree of the senate, which usually preceded the nomination of this magistrate, " dent operam consuks, " ne quid reqmhUca detn'inenti capiat,'^ was called the senatns conmUuin uUhme necessitatis : and in like manner this experiment ought only to be tried in cases of extreme emergency : in these, the nation parts with its liberty for a while, in order to preserve it for ever. The confinement of the person in any wise, is an im- prisonment. So that the keeping a man against his will in a private hoTise, putting him in the stocks, arresting or forcibly detaining liim in the street, is an imprisonment (/). And the law so much discourages unlawful confinement, that if a man is under duress of intpj'i-so>niiciit, i. e., i/ter/a//;/ restrained of his liberty, until he seals a bond or the like, lie may allege this duress, and afterwards avoid the extorted bond ; but if a man be tecjalhj imprisoned, and, on any fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty afterwards to avoid it (/;/). To make a commitment to prison legal or lawful, it must either be by process from the courts, or by warrant from some person having authority to commit ; which warrant must be in writing, under the hand and seal of him by whom it is given, and must express the causes of the commitment, in order to be examined into, if neces- sary, upon a haheas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect (saith Sir Edv\'ard Coke), like Festus the Eonian governor, that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him {)i). land, in reference to the Fcniau c. 25). (;onKpinx::y there) by 20 k 30 Viet. {/) 2 Inst. 589. c. 1. And see the Peace Prcserva- (w) lb. 482. tion (Ireland) Act, 1881 (44 Vict. («) lb. 52, 53. See 1 Chittv, c. 6), and the Prevention of Crime Crim. Law, 110 et seq. (Ireland) Act, 1SS2 (45 & 40 Vict. 1.2 148 LOOK I. OF PERSONAL RIGHTS. [A natural and regular consequence of this riglit of personal liberty, is, that every Englishman may claim to abide in his own country so long as he pleases, and not to be driven from it unless by the sentences of the law. The king indeed, by his royal prerogative, may issue his writ ne exeat rerjno, and prohibit any of his subjects from going into foreign parts without licence : for this may be neces- sary for the public service and safeguard of the common- wealth (o). But no power on earth, except the authority of parliament, can send any subject of England out of the land against his will ; no, not even a criminal.] For exile ■was never sanctioned by the common lav»', except in the case of abjuration above referred to {p) ; and though in comparatively modern times persons were conveyed to parts beyond the seas, under sentence of "transportation" (^z), they were so dealt with either by their own choice to escape a capital punishment, or else by the express direc- tion of some act of parliament (;•). [To this purpose the Grreat Charter declares that no freeman shall be banished, unless by the judgment of his peers, or by the law of the land {/). And by the Habeas Corpus Act, 31 Car. XL c. 2, (o) F. N. B. 85. The writ of that of transportation. (See 20 & ne exeat regno in now only used as 21 Vict. c. 3 ; 22 Vict. c. 2o.) a means of in-eventing- a defendant (;•) It is said that exile was first in a civil cause from leaving' Eng- introduced as a punishment by the land. See Lees v. Patterson, Law legislature in the thirty-ninth year Rep., 7 Ch. D. 866 ; Drover v. of Ehz., when a statute enacted Beyer, 13 Ch. Div. 242. See also that " such rogues as were dan- the Bankruptcy Act, 1883 (46 & 47 gcrous to the inferior people should Vict. c. 52), 8. 25; and the Ab- be banished the realm" (39 Ehz. sconding Debtors Act, 1870 (33 & c.4 ; see Bar. Ant. Stat. 269); and 3-4 Vict. c. 76) ; also Colvcrson v. that the first statute in which the Bloomfield, 29 Ch. Div. 341; and word "transportation" is used is Debtors Act, 1869 (32 & 33 Vict. the 18 & 19 Car. 2, c. 3, which gave c. 62). a power to the judges at their dis- {p) Co. Litt 133 a. Vide sup. cretion either to execute, or trans- p. 141. port to America for life, the Moss- {q) Convicts are still sometimes troopers of Cumberland and North- conveyed to parts bej'ond the seas, umberland. under that sentence of penal scrri- (s) C. 29. ii«h which is now substituted for IJOOK I. — OF PEKSONAl. IIIGHTS. 149 [it is enacted, that no subject of this realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places beyond the seas — Avhere they cannot have the full benefit and protection of the common law — but that all such imprisonment shall be illegal : that the person who shall dare to commit another, contrary to this law, shall be disabled from bearing any office, shall incur the penalty of a py(cnut)ih-e, and be incapable of receiving the king's pardon :] and that the party injured shall also have his private action against the person committing, and all his aiders, advisers and abettors, whereby he shall recover his costs and also damages to the extent of at least five hundred pounds [t) . [The law, as above explained, is so benignly and libe- rally construed for the benefit of the subject, that, though ivithin the realm the king may command the attendance and service of all his liegemen, yet he cannot send any man out of the realm, even upon the public service ; excepting sailors and soldiers, the nature of whose employ- ment necessarily implies an exception.] Thus (saj's Coke) the sovereign cannot even constitute a man lord lieu- tenant of Ireland against his will, nor make him a foreign ambassador. For this might, in reality, be no more than honourable exile {ti). What has been hitherto said ou the subject of personal liberty, refers, it will be observed, chiefly to its illegal restraint by the authority of government. When imj^ri- sonment is illegally infiicted by a private subject, relief may, in the same manner, be had by habeas corpus : and redress may also be obtained by action, or the offender may bo punished upon indictment. But the consideration of these methods, and the further discussion of the mode of proceeding upon liaheax coipux, more properly belong to our divisions of civil injuries and of crimes. They are (t) As to the writ of habeas carpus, {/i) Sec 2 Tust. 46. see furthei", bk. v. c. xii. l-jO IJOOK 1. ()!•• I'EUSONAl. RIGHTS. glanced at in this place only in illustration of tlie im- portance attached by the law to the right now under consideration. In connection with the rights of personal liberty and security, is the right of the subject to carry such arms as are proper for his defence. This is declared by the statute 1 "W. & M. sess. 2, c. 2 ; and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanction of society and laws are found insufhcient to restrain the violence of oppression. There is an antient enactment, however, against going armed under such circumstances as may tend to terrify the people, or indicate an intention of dis- turbing the public peace (.r). And, by a modern statute, the training of persons, without lawful authority, to the use of arms is prohibited; while any justice of the peace is authorized to disperse such assemblies of persons as he may find engaged in that occupation, and to arrest any of the persons present {//). (.(■) 2 Edw. 3, c. 3 ; see Hawk. mentioned in the text, any more Pleas of the Crown, bk. 1, c. 63, than the mihtia, yeomanry or regu- Bi. 9, 10. lar troops of the line. And see the (y) 60 Geo. 3 & 1 Geo. 4, c. 1. It Army Annual Act, 1882 (45 & 4G maybe remarked, that the volun- Vict. c. 7) ; the Reserve Forces Act, tc or rifle and artillery forces, being 1882 (45 & 46 Vict. c. 48); the trained under lawful authority, viz. Militia Act, 1882 (45 & 4 G Vict, under the provisions of the Volun- c. 4!.i) ; and the Army Annual Acts, tecrActs, 1863 and 1860 (26 & 27 1883 (c. 6), 1884 (c. 8), and 1885 Vict. c. 65, and 32 & 33 Vict. c. 81), (c. 8). arc not affected bv the enactments BOOK II. OF EiailTS OF PROPERTY. AS TO PROPERTY IN GENERAL. The rights of property consist in a man's free use, enjoj'- ment, and disposal, according- to the laws of the com- munity, of all his acquisitions in the external things around him. It may be desirable to premise a few obser- vations on the nature and origin of these rights, before wo proceed to distribute and consider their several objects. [The rights in question, though we speak of them in tho plural, in regard to the different objects over which a man may have ownership, and the different modifications of that ownership, are yet capable of being reduced, and for the purpose of abstract discussion are usually reduced, to one general head — the right of property, or the prin- ciple by which one man claims and exercises a sole and despotic dominion over the external things of the world, in total exclusion of all other individuals. However generally recognized that right may be, there are very few that will give themselves the trouble to consider its origin and foundation. Pleased as we are with tho possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title ; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built {a) . "We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or (a) Bl. Com. vol. ii. p. 2. 152 liOOK II, — OF IIIGHTS OF PIIOPERTV. [by tlio last will and testament of the dying owner : not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land ; why the son should have a right to exclude his fellow-creatures . from a determinate spot of ground, because his father had done so before him; or why the possessor of a particular field, or of a jewel, when lying on his death-bed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them shall enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these jiositive constitutions of society. In the beginning of the world, as we are informed by holy writ, the all-bountiful Creator gave to man " dominion " over all the earth ; and over the fish of the sea, and over " the fowl of the air, and over every living thing that " moveth upon the earth" (h). Hence the earth, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. And while the earth continued with few inhabit- ants, it is reasonable to suppose that all was in comraou among them, and that every one took from the public stock, to his own use, such things as his immediate neces- sities required. These general notions of property were then sufficient to answer all the purposes of human life ; and might perhaps still have answered them, had it been possible for mankind to have remained in a state of primeval simplicity : as may be collected from the manners of many {/>) Genesis, i. 28. AS TO PKOrHKTY IX (il.XKKAl,. l-JO [American nations wlien first discovered by tlie Europeans ; and from the antient method of living among the first Europeans themselves, if we may credit either the memo- rials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, in which " ormf omnia commioiia ct indivim omnibus, rcJuti luiKni ciincfis pafrinionium esscf''{e). Not that this com- munion of goods seems ever to have been applicable, even in the earliest ages, to aught but the substance of the thing ; nor could it bo extended to the use of it. Eor, by the law of nature and reason, he who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer ; or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted (r/). Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it — for rest, for shade, or the like — acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the lav/ of nature, to have driven him by force : though the instant that he Cjuitted the use or occupation of it, another might seize it without in- justice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to its produce ; and yet any private individual might gain the sole property of the fruit which he had gathered for his own repast. A doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken in it is, for the time, liis own {e). But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion, and to ajipropriate to indi- {(■) Justin, 1. 43, c. 1. commune sit, rede tamcn did potest, {d) Barbeyr. Puff. 1. 4, c. 4. ejus esse cum locum quern quisquc {e) " Quemadmodum ihca{rum,ci()ii orcuparit." — De Fin. 1. 3, c. 20. 154 jiuoK 11. — OF iiicaiTs 01-' rjiOPPnri'Y. [viduals not the immediate use only, l)ut the very suhHtance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world have been continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it. As human life also grew more and more re- fined, abundance of conveniences were devised to render it more easy, commodious and agreeable ; as halntations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that he quitted posses- sion ; — if, as soon as he walked out of his tent, or pulled off his garment, the next stranger who came by w^ould have a right to inhabit the one, and to wear the other. In the case of habitations in joarticular, it was natural to observe, that even the brute creation, to whom every thing else was in common, maintained a kind of permanent pro- perty in their dwellings, especially, for the protection of their young ; that the birds of the aii- had nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. Hence a property was soon established in every man's house and homestall ; which seem to have been originally mere temporary huts or moveable cabins, suited to the design of Providence for more speedily peopling the earth, and adapted to the wandering life of their owners, before any extensive pro- perty in the soil or ground was established. And there can be no doubt, but that moveables of every kind became sooner appropriated tlian the permanent substantial soil ; partly because they were more susceptible of a long occu- pancy, which might be continued for months together without any sensible interruption, and at length by usage ripen into an cstablislied right ; but principally because few of them could be fit for use till improved and melio- AS lo ruuriijav in cajxiiKAL. 155 [rated by the bodily labour of tbe occupant ; which bodily labour, bestoAvod upon any subject which before lay in common to all men, is universally allowed to strengthen, very materially, the title that mere occupancy gives to an exclusive property therein. The article of food was a more immediate call, and therefore a more early consideration. Such as were not contented with the spontaneous product of the earth, sought for more solid refreshment in the flesh of beasts, which they obtained b}^ hunting. But the frequent dis- appointments, incident to that method of provision, in- duced them to gather together such animals as were of a more tame and sequacious nature ; and to establish a per- manent property in their flocks and herds, in order t(j sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The support of these their cattle made the article of icatcr also a very important point. And therefore the Book of Uenesis (the most venerable monument of anticj^uity, con- sidered merely with a view to history) will furnish us with frequent instances of violent contentions concerning wells ; the exclusive property of which appears to have been esta- blished in the first digger or occupant, even in such places Avhere the ground and herbage remained yet in common. Thus we find Abraham, who was but a sojourner, assert- ing his right to a well in the country of Abimelech, and exacting an oath for his security, " because he had digged that well"(/). And Isaac, about ninety years after- wards, reclaimed this his father's property; and, after much contention with the Philistines, was suffered to enjo}^ it in peace {g). All this time the soil and pasture of the earth remained still in common as before, and open to every occupant ; except perhaps in the neighbourhood of towns, where the necessity of a sole and exclusive property in lands (for the sake of agricultm'e) was earlier felt, and therefore more (/) Genesis, xxi. 30. {g) lb. xxvi. 15, 18, &c. 156 IJOOK ir. — OK RTGIIIS OF PROPERTY. [readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience on one spot of ground, it was deemed a natural right to seize upon and occupy such other lands as would more easily supply their necessities. This practice is still retained among the wild and uncultivated nations that have never been formed into civil states, like the Tartars and others in the east ; where the climate itself, and the boundless extent of their territory, conspire to retain them still in the same savage state of vagrant liberty which was uni- versal in the earliest ages ; and which Tacitus informs us, continued among the Germans till the decline of the Eoman Empire (//). We have also a striking example of the same kind in the history of Abraham and his nephew Lot (/). When their joint substance became so great that pasture and other conveniences grew scarce, the natural consequence was, that a strife arose between their ser- vants ; so that it Avas no longer practicable to dwell to- gether. This contention Abraham thus endeavoured to compose : " Let there be no strife, I pray thee, between " thee and me. Is not the whole land before thee ? Sepa- " rate thyself, I pray thee, from me. If thou wilt take " the left hand, then I will go to the right ; or if thou " depart to the right hand, then I Avill go to the left." This plainly implies an acknowledged right in either to occupy whatcA'or ground he pleased, that was not pre- occupied by other tribes. "And Lot lifted up his eyes, " and belicld all the plain of Jordan, that it was well " watered everywhere, even as the garden of the Lord, " Then Lot chose him all the plain of Jordan, and jour- *' neyed east ; and Abraliam dwelt in the land of Canaan." Upon the same principle was founded the right of mi- gration, or sending colonies to find out new habitations, when the motlier country was overcharged with inha- bitants, which was practised as well l)y the Phccnicians (//) " f'olioU dhcnli ei divcrsl ; citU.'" — De Mor. Ger. 16. ut fonx, ut campus, ut nemus, jjla- ((') Genesis, c. xiii. AS TO PROPERTY IN GEXERAI.. iot [and Greeks, as Ly the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desert uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seizing on countries already peopled, and dri\-ing out or massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour ; how far such conduct was consonant to nature, to reason, or to Christianity, deserved well to be consider€d by those who have rendered their names immortal by thus civilizing mankind. As the world by degrees grew more populous, it daily became more difficult to find out new spots to inhabit, without encroaching upon former occupants ; and by con- stantly occupying the same individual spot, the fruits of the earth were consumed, and its spontaneous produce destroyed, without any provision for a future supply or succession. It therefore became necessary to pursue some regular method of providing a constant subsistence ; and this necessity produced, or at least promoted and en- couraged, the art of agriculture. And the art of agricul- ture, by a regular connection and consequence, introduced and established the idea of a more permanent property in the soil, than had hitherto been received and adopted. It was clear that the earth would not produce her fruits in sufficient quantities without the assistance of tillage ; but who would be at the pains of tilling it, if another miglit watch an opportunity to seize upon and enjoy the product of his industry, art, and labour ? Had not, therefore, a separate property in lands as well as moveables been vested in some individuals, the world must have continued a forest, and men have been mere animals of prey ; which, according to some philosophers, is the genuine state of natm'e. Whereas now (so graciously has Providence in- terwoven our duty and our happiness together) the result of this very necessity has been the ennobling of the human 158 BOOK 11. — OF IIIGHTS OF PROPERTY. [species, l)j giving it opportunities of improving its rational faculties, as well as of exerting its )iafuraL Necessity begat property ; and in order to ensure that property re- course was had to civil society, which brought along with it a long train of inseparable concomitants; states, govern- ments, laws, punishments, and the public exercise of re- ligious duties. Thus connected together, it was found that a part only of society was sufficient to provide, by their manual laboiu', for the necessary subsistence of all ; and leisure was given to others to cultivate the human mind, to Invent useful arts, and to lay the foundations of science.] Upon the question therefore how property came to be established, or what it is that gave man an exclusive right to retain in a permanent manner that specific land, or moveable, which before belonged generally to everybody, but particularly to nobody, — it seems on the whole that property had its original foundation in occupancy, but that it was confirmed and strengthened by such labour as was bestowed npon the subject-matter, — as where land once discovered and taken possession of was improved by agri- culture, or where vegetable or mineral productions once found were rendered more valuable by manufacturing processes. [There is, indeed, some difference among tbe writers on natural law, concerning the reason why occu- pancy should convey this right, and invest one Avith this absolute property : Grotius and Puffendorf insisting that this right of occupancy is founded on a tacit and implied assent of all mankind, that the first occupant sliould become the owner ; and Barbeyrac, Locke, and others holding that there is no such implied assent, neither is it necessary that there should be ; for that the very act of occupancy alone, being a degree of bodily labour, is from a principle of natural justice, without any consent or com- pact, sufficient of itself to gain a title. A dispute that savours too much of nice and scholastic refinement. IfowoviT, both sides agree in litis, tliat occupancy is AS TO PROl'EUTY IX GENERAL. 150 [the thing by which the title was in fact originally gained ; every man seizing to his own contIn\ied use such spots of ground, or such moveables, as he found most agreeable to his own convenience, provided he found them unoccupied by any one else {J). Property, both In lands and moveables, being thus originally acquired by the first taker — which taking amounts to a declaration that he intends to appropriate the thing to his own use — It remains In him by the prin- ciples of universal law, till such time as he does some other act which shows an intention to abandon it ; for then it becomes, naturally speaking, ptihrtci Juris once more, and is liable to be again appropriated by the next occupant. So if one be possessed of a jewel, and cast It into the sea or on to a public highway, this Is such an ex- press dereliction, that a property will be vested In the first fortunate finder that will seize it to his own use. But if he hide it privately in the eai'tli or other secret place, and it is discovered, the finder acquires no property therein ; for the owner hath not by this act declared any intention to abandon it, but rather the contrary ; and if he lose or drop It by accident. It cannot be collected from thence that he designed to quit the possession ; and therefore in Fueh a case the property still remains in the loser, who may claim it again of the finder. In this manner, then, both lands and moveables became everywhere permanently appropriated. However, there are some few things which, notwithstanding the general introduction and continuance of property, must still un- avoidably remain In common, being such wherein nothing but an usufructuary property is capable of being had ; and therefore they still belong to the first occupant, during the {j) lu Maiue'.s Treatise oq An- individuals, is contrasted witli the ticnt Law (p. 2ol), the theory, tliat doctrine of Savigny, that property the origin of property is the asseut was acqnii-cd by adverse possession of mankind to the occupation by gradually ripened by prescription. 160 BOOK II.— OF RIGHTS OF PROPERTY. [time he liokis possession of them, and no longer. Such among others are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences ; and such also are the generality of those animals which are said to be ferce iiatiine, or of a wild and untameable disposition, which (subject to certain restrictions) any man may seize upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance ; but if once they escape from his custody, though without his voluntary abandonment, it naturally follows that they return to the common stoelc, and any man else has in general an ecjual right to seize and enjoy them afterwards. The doctrine of ownership once established, soon drew after it that of transfer. It was found, that what became inconvenient or useless to one man, was highly convenient and useful to another ; who was ready to give in exchange for it some equivalent that was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant, or conveyance ; whicli may be considered either as a continuance of the original possession which the first occupant had ; or as an abandoning of tlie thing by the previous owner, and an immediate successive occu- pancy of the same by the new proprietor. The voluutarj^ dereliction of the owner, and delivering the possession to another individual, amount to a transfer of the property ; the proprietor declaring his intention no longer to occupy the thing himself, but that his own right of occupancy shall be vested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property : and Titius, being the only or first man acquainted with such my intention, immediately steps in and seizes the vacant possession : thus the consent AS TO PUOrEUTY IN GENERAL. IGl [expressed by tlio conveyance, gives Titiiis a good riglifc against me ; and possession, or occupancy, confirms that right against all the world besides. If all property ceased upon death, it would follow by the principles before established, that the next immediate occupant would acquire a right in all that the deceased possessed. But as, under civilized governments, which are calculated for the peace of mankind, such a constitu- tion would be productive of endless disturbances, the uni- versal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of them, or is not permitted to make any disposition at all, the municipal law of the country then steps in, and declares who shall be the successor, representative, or heir of the deceased ; that is, who alone shall have a right to enter upon this vacant possession, in order to avoid that confusion which its becoming again common would occasion (Z). And fiu'ther, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occu- pancy from again taking place, the doctrine of escheats has been adopted in almost every country ; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances to which no other title can be formed (/).] As to the right, however, of the childi-en or nearest relations of the deceased to inherit, (which was allowed much earlier than that of devising by testament,) its origin is, perhaps, to be traced to a higher soui'ce than the mere institutions of civil society. There is a general and intui- ik) Thus, to prevent any vacancy properly descend, as continue in of possession, the civil lavr con- the hands of the survivor. (See sidered father and son as one per- Tf. 28, 2, 11.) son ; 80 that, upon the death of [1) As to escheats, vide post, either, the inheritance did not so pfc. i. c. xii. VOE. 1. M 1-62- J500K II. — OF RIGHTS OF PROPERTY. tive feeling tliat it has nature on its side ; and tliero seems in truth good reason to refer it to the same natural title of occupancy, on which the right of property itself is founded. [No doubt its merits, as a civil institution, aro such as might be sufficient in themselves to have recom- mended it for the adoption of a wise legislature ; for the transmission of one's possessions to posterity has an evidgit tendency to make a man a good citizen and a useful mem- ber of society ; it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with him- self, but be transmitted to those with whom he is connected by the dearest and most tender aifections. Yet, reasonable as this foundation of the right of inheritance may seem, it is probable that its immediate original arose not from speculations altogether so delicate and refined. A man's children or nearest relations are usually about him on his death-bed, and are the earliest witnesses of his decease. The}^ become therefore generally the next immediate occu- pants, till at length in process of time this frequent usage ripened into general law. And therefore, also, in the earliest ages, on failure of children, a man's servants born under his roof were allowed to be his heirs, being imme- diately on the spot when he died. For we find the old patriarch Abraham expressly declaring, that since God had given him no seed, his steward Eliezer, one born in his house, was his heir (;;?). While property continued only for life, testaments were useless and unknown : and when it became inheritable, the inheritance was long indefeasible, and the chilth-en or heirs at law were incapable of exclusion by will ; till at length it was found that so strict a rule of inheritance made heirs disobedient and headstrong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigencies of their families required. This introduced pretty gene- (»n^ Gen. xr. 3. AS TO PROPERTY IN GENERAL. 163 [rally the right of disposing of one's property, or a part of it, by testament ; that is, by -^aitten or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased, which we therefore emphatically style his tciU. This was established in some countries much later than in others.] "With us in England, as the law stood in the reign of Henry the second, the testa- mentary power of a man over his moveable possessions was limited, for he could then only dispose of one-third of them to the exclusion of his wife and children ; but this restriction soon fell out of use. As to lands, these, before the Conquest, were fully devisable ; but afterwards, and until the reign of Henry the eighth, the general law (subject to special customs in particular places) was that they could only be devised for a term of years, and only a certain portion of them even to that limited extent : and it was not till after the Restoration, that the power of devising real property became so universal as at present [ii). Wills and testaments are obviously in their nature of a date posterior to the formation of civil society, and must be considered as the mere creatures of the municij^al law ; by which also it is clear that the particular modifications of the law of inheritance and succession are alone regulated. [Accordingly wo find that every distinct country has diffe- rent ceremonies and re(iuisites to make a testament com- pletely valid : neither does anything vary more than the right of inheritance under different national establishments. In England, particularly, this diversity is carried to such a lengtli, as if it had been meant to point out the power of the laws in regidating the succession to jiroperty, and how futile every claim must be that has not its foundation in the positive rules of the state. In general only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inherit- [n) Tliis arose in consequence of Car. 2, c. 24; vide post, bk. ii. pt. i. the conversion of tenure in chivalry c. ii. and c. xx. into tenure in socage, by the st. 12 m2 1G4 BOOK II. — OF RIGHTS OF PROPERTY. [ance : in real estates, males are preferred to females, and the eldest male will usually exclude the rest : in the divi- sion of personal estates, the females of equal degree are admitted together with the males, and no right of primo- geniture is allowed.] Such is the origin that we are disposed to assign to property itself, and to the power of transferring or trans- mitting property, considered in the abstract. However, it is clear that all proprietary rights, as we now find them established in any country, rest on the municipal law as their immediate basis — being indeed some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty ; and, like those re- lative to life and limb, they have always been guarded by the laws of England witli peculiar vigilance, and have been frequently recognized in distinct and emphatic terms by the legislature. [Thus the Grreat Charter has declared, that no freeman sliall be disseised or divested of his free- hold, or of his liberties, or free customs, save by the judg- ment of his peers, or by the law of the land (o) . And by a variety of antient statutes it is enacted, that no man's lands or goods shall be seized into the king's hands against the Great Charter and the law of the land; and that no man shall be disinherited, nor put out of his franchise or freehold, unless he be duly brought to answer and bo forejudged by course of law ; and if anj'thing be done to the contrary, it shall be redressed and holden for none (7?).] Even for the general good of the whole community, no unnecessary violation of tlie rights of property is, in any instance, allowed by our law. If a new road, for example, is to be made through the grounds of a j^rivate person, in a case where it would be extensively beneficial to tho public, the legislature never permits itself to do tliis witli- out the consent of tho owner of tho laud, or at least with- (0) C. 29. {,p) Sec 5 Edw. 3, c. 9 ; 2.5 Edw. 3, st. 5, c 4 ; 2S Edw. 3, c. 3. AS TO PROPERTY IX GENERAL. 1G5 out securing to liim a complete indemnification. In vain may it be urged that the good of the individual ought to yield to that of the community. The true principle appli- cable to all such cases is one to which we have had occasion already to refer, and which is constantly borne in view by the English law, viz. that the private interest of the indi- vidual is never to be sacrificed to a greater extent than is necessary to secure a public object of adequate import- ance {q). The public, therefore, is considered in all such transactions as an individual treating with an individual, for an exchange. All that the legislature does is to oblige the owner to alienate his possession for a reasonable price ; and even this is an exertion of power which it indulges with caution, and which nothing but the legislature can perform (r). Nor is this the only instance in which the law of the land has postponed the public interest to the sacred and inviolable rights of private property. Thus no subject of England can be constrained to pay any aids or taxes, even for the defence of the realm or the support of the govern- ment, but such as are imposed by his own consent or that of his representatives in parliament. For by the statute 25 Edw. I. c. 1, it is provided that the king shall not take any tallage or aid but by the assent of the arch- bishops, bishops, earls, barons, knights, burgesses, and other freemen of the land (.s') ; and again, by 14 Edw. III. st. 2, the prelates, earls, barons, and commons, citizens, bui'gesses, and merchants, shall not be charged to make (q) Vide sup. p. 145. to the Great Charter (edit. Oxon.), (r) See 8 & 9 Vict. c. 18 (called sub anno 1297; wherein it is shown "The Lands Clauses Consolidation that this statiite, (called De tallaffio Act, 1845"), for consolidating into non concedendo,) supposed to have one Act the pro\'isions usual in Acts been made in 34 Edw. 1, is in authorizing the taking of lands for reality nothing more than a sort of tmdertakiiigs of a public nature. translation into Latin of the Con- The above statute was amended by Jirmatiocartarum, 25 Edw. 1, which 23 (fe 24 Vict. c. lOfi. was originally published in the (s) See however the introduction Norman language. IGG BOOK II. — OF KIGIITS OF PROPERTY. any aid, if it be not by the common assent of tlie great men and commons in parliament. [And as this funda- mental law had been shamefully evaded under many suc- ceeding princes, by compulsory loans, and benevolences extorted without a real and voluntary consent, it was made an article in the Petition of Right, 3 Car. I., that no man shall be compelled to yield any gift, loan, benevo- lence, tax, or such like charge, without common consent by act of parliament. And, lastly, by the statute 1 Will. & Mary, sess. 2, c. 2, it is declared, that levying money for or to the use of the Crown, by pretence of prerogative, without grant of parliament, or for longer time or in other manner than the same is or shall be so granted, is illegal.] ( 1G7 ) PART I. OF THINGS REAL. The subjects of dominion or property, in tlie law of Eng- land, are things, as eontradistinguislied ivom. persons ; and things are distributed into two kinds, things real, and things personal. Things real, (otherwise called realty,) consist of tilings substantial and immoveable, and of the rights and profits annexed to or issuing out of these. Things personal, (otherwise called personalty,) consist of goods, money, and all other moveables, and of such rights and profits as relate to moveables {a). The First Part of the present Book will consequently relate to things Peal, and the Second to things Personal. (rt) Blackstone says, ^' things real ' ' are such as are permanent, fixed " and immoveable, which cannot " be carried out of theii- place, as " lands or tenements — things pcr- " sonal are goods, monej, and all " other moveables Tvliich may at- ' ' tend the owner's person ■wherever " he thinks proper to g"0." (2 Bl. Com. p. IC.) It has been thought expedient to deviate from these de- finitions, which, among other ob- jections to them, appear to be too limited, as referring to things of a substantial or solid kind only, with- out embracing incorporeal rights. His definition of things personal, however, does .not appear to be fairly open to the objection that has been sometimes made to it, of not being extensive enough to comprise chattels real. Tor it is more correct and convenient to keep the idea of the subjects in wliich property may be acquired, separate from the idea of the estate or interest that may be acquii-cd in these subjects. A chattel real is, properly speaking, not a thing personal, but rather a particular kind of estate in a thing real. It is, however, for many pui'poscs, properly designated t.s personal estate. This is a matter that we shall have occasion to notice more fully hereafter. 168 BK. II. OF IIIGHTS OF rilOPEIlTY. — PT. I. THINGS REAL. CHAPTER I. OF THE DIVISIONS OF THINGS REAL. Things real are usually said to consist inlands, tenements, •or hereditaments. [Land, says Sir Edward Coke, compre- liendeth in its legal signification any ground, soil, or earth whatsoever ; as arable, meadows, pastures, woods, moors, waters, marshes, furzes and heath {a) . It legally includeth also all castles, houses, and other buildings : for they con- sist, saith he, of two things ; /and, which is the foundation, and structure thereupon ; so that if I convey the land or ground, the structure or building passeth therewith. It is observable that icaferis here mentioned as a species of land, which may seem a kind of solecism ; but such is tlie language of the law : and therefore I cannot bring an action to recover possession of a pool or other jiiece of water by the name of icater only ; either by calculating its capacity, as for so many cubical yards ; or by superficial measure, as for twenty acres of water ; or by general description, as for a pond, a water-course, or a rivulet : but I must bring my action for the land that lies at tlio bottom, and must call it twenty acres of hind covered tciih mifer {b). And so if I grant a certain icafer, though the j'ight of fishing passes, yet the soil does not (c). Eor water is a moveable wandering thing, and must of neces- sity continue common by the law of nature ; so that I can only have a temporary, transient, usufructuary property (a) Co. Litt. 4a; and sec E^vel• (/') Chiilloncr ;•. Thomas, Bro-wnl. V. lltiydcn, Cro. Eliz. 470 ; Cooke 142. V. Yates, 4 Bing. 90, (c) Co. Litt. 4 b. CIIAr. I.— OF THE DIVISIONS OF THINGS HEAL. 1G9 [therein : wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it {d). But the land which that water covers, is permanent, fixed and immoveable : and therefore in this I may have a cer- tain substantial property, of which the law will take notice, and not of the other. Land hath also, in its legal signifi- cation, an indefinite extent upwards as well as downwards. Ciijiis est solum, ejus est usque ad cceJum, is the maxim of the law ; upwards, therefore no man may erect any building, or the like, to overhang another's land ; and downwards, whatever is in a direct line between the surface of any land and the centre of the earth, belongs in general to the owner of the surface. So that the word "land" includes not only the face of the earth, but everything under it or over it (r) . And therefore if a man grant all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are equally sufficient to pass them (/) ; but the capital dis- tinction is this, that by the name of a messuage, toft, croft, or the lilve, nothing else wdll pass, except what falls with the utmost propriety under the term made use of ; but by the name of land, which is nomen gencralissinunn, everything terrestrial will pass [g).'] The word tenement is of still greater extent, and though {(I) See Eace r. Ward, 4 Ell. & {(/) Co. Litt. 4 a— G b. This Bl. 702. •word land is used in a still larger (<■) Shep. Touch. 90; Eaine v. sense in certain statutes ; as in 3 & Alderson, 1 Arnold, 329. 4 Will. 4, c. 106 (for regulating the (/) Blackstone here adds, "ex- law of inheritance), -where it is pre- cept in the instance of watery vidcd, that, so far as the enact- But it would seem that the case ments of that statute are concerned, of water cannot properly be con- "land" shall comprise every in- sidered as an exception, because terest, real or personal, capable of "water" is woHhe particular name, being inherited, and also money to in contemplation of law, of the be laid out in the purchase of land, thing intended to be passed ; vide «S:c. ; see also c. 105, the Act for the sup. p. 168. regulation of the law of dower. 170 J5K. 11. OF lUGllTS OF PROPEKTY. — PT. 1. THINGS KEAL. in its ordinary acceptation it is only applied to houses and other buildings, yet in its original proper and legal sense, it signifies everything that may be holden, that is, be the subject of tenure, of which we shall speak at large in the following chapter. In ordinary legal intendment, it in- cludes not only land (which is the primary subject of tenure), but rents, commons, and several other rights and interests issuing out of or concerning land (//). Eut hereditament, says Sir Edward Coke, is by much the largest and most comprehensive expression (/) ; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, or mixed. Thus an heir-loom, or implement of furniture, which by custom descends to the heir together with the house or land, is neither land nor tenement, but a mere moveable : yet, being inheritable, is comprised under the general word hereditament : and so a condition, the benefit of which may descend to a man from his ancestor, is also a hereditament {k) . It is under the larger term of hereditaments, though it be not strictly confined to things real, that the subjects of real property have been usually arranged ; and to this method it will therefore be most convenient to adhere. Hereditaments, then, are of two kinds, corporeal and in- corporeal. Corporeal consist of such as affect the senses, such as may be seen and handled by the body ; incorporeal are not the objects of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in con- templation. If we apply the word hereditaments to the realty only (which is its most ordinary use), "corporeal" hereditaments are in fact the same with land, of which (/») Co. Litt. 6 a, 20 a, 78 a; and Denu, 2 Bos. & Piil. 251 ; Pocock see R. r. Dersingham, 7T. R. 671; v. Bishop of Loudon, 3 Brod. & Vin. Ab. Grants (T). Bing. .3:3. (i) Co. Litt. G a. As to the tonn (/••) Winchester's case, 3 Rep. hereditaments, sco also Moore v. 2 b. CHAr. I. — OF THE UIVISIOXS OF THINGS HEAL. 171 enough has heen said ; " incorporeal " are the rights and profits annexed to or issuing out of land. It is to cor- poreal hereditaments, that our attention must be first directed ; and whatever is said generally, hereafter, as to the law of real property, is to he understood as refemng to its corporeal subjects only, imtil those of the incorporeal kind present themselves, in their turn, for separate con- sideration, in a distinct chapter (/). (1) As to incorporeal hereditaments, vide post, bk. n. pt. i. c. xxiii. 172 15K. II. 01- RIGHTS OF PROPERTY. PT. I. THINGS REAL. CHArTER II. OF TENURES. Ix proceeding to treat of corporeal hereditaments, we sliall consider, in the first place, the tenures by which they may be holden ; secondly, the estates which may be had in them (a) ; and, lastly, the title to them, or the manner in which those estates may be acquired and lost {b). And, first, as to tenures. These it will be impossible to understand with any degree of accuracy, unless we have some previous acquaintance witli the nature of feuds, or the feudal law (r) ; a system established during the middle ages throughout the greater part of the Euroi:)ean continent, and from thence derived to England, where its spirit still lives in several of her institutions. This chapter will therefore be dedicated, in the first instance, to an inquiry into the feudal system ; after which we shall revert to our own municipal law, and particularly that branch of it which relates to the Tenure of real property, a doctrine that we shall find to be alto- gether founded upon feudal principles. Feuds were introduced under the new dynasties founded by tlie barbarous tribes, who, during the fourth, fifth, and sixtli centuries, poured themselves from Germany and the neighbouring countries into the Eoman empire (d). In («) Vide post, Lk. II. pt. I. CO. III. "learning-, hath not turned into — IX. ' ' this field, from Tvhence so many (A) Ibid. cc. X — xxn. " roots of our law have, of old, (r) "I do marvel many times," " been taken and transplanted." — eays Spelman, " that my lord Coke, Spel. Orig. of Terms, c. vin. "adorning our law with so many (d) See Spelman on Feuds, and "flowers of antiquity and foreign Wright on Tenures; Co. Litt. by CHAP. II.— OF TENURES, 173 every province which they subjugated, large tracts of territory were divided by lot among the conquerors, some portion falling to the king or general of the invading tribe, and the rest to his soldiers, who received their shares as free and independent property, subject only to tlie condition of bearing arms, as occasion might require, in the defence of the community from hostile aggression. Of the lands assigned to the sovereign of the tribe, cer- tain portions were afterwards usually distributed by him among his adherents, and chiefly among his courtiers or companions [coniitcii) : but the interest they derived under these grants was not strictly in the nature of pro2:)erty ; it was of a beneficial or usufructuary kind only, a mere stipendiary return for services (commonly services of a military description) which they were expected to render to their master, and subject at some future period to re- sumption ; the proprietas, or actual ownership of the land, being considered as still residing in the sovereign himself. This species of interest, which we find at first described as a benefice [e], was called, about the close of the tenth century (and, as there is reason to suppose, much earlier) a feud {/), — a term which signified in the Grerman lan- guage a stipendiary estate, and stood in contradistinction to alludium {g), the phrase applied to that independent Harg. Gi a, ii. (1), 191 a, n. by pounded of od, possession or es- Butkr. tate, and feo, wages, pay. — Eobert- (c) The portions of land thus dis- son's Hist. Ch. V. vol. i. n. (8), tributed were at first revocable at citing Wachteri, Gloss. Germ. voc. the will of the lord, and were then, Feodum. it is said, called mnnera. They [g) ^?/orfi«;« is stated by Eobert- ■were afterwards held for some son (ubi sup.) to be compounded of limited time (usually one year) , the German particle an and lot, and and called bencficia. In process of to signify laud obtained by lot; and time they began to be granted in he cites the same glossary, voc. perpetuity, and were then called Allodium. Another derivation, fcmla according to Spelinan, who however, is given by Blackstonc, cites Cujacius, Feud. lib. 3, p. 180. who considers it as compounded of (See Sijelman on Feuds, 4, 6, 9 ; all (lotuin), and odh (projjrietas) in Cowell's Inteiiireter, i« reilj.) the Northern languages. — 2 Bl. (/) Fciidnm is said to be com- Com. p. 45, n. 174 UK. II. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. species of property, before described, ^\■llicll bad originally become vested by allotment in the conquerors of the country. There began thus to arise two distinct modes of holding or possessing land. The stipendiary held of (that is, in relation to and in dependence upon) a superior ; the allodialist held of no one, but enjoyed his land as free and independent property ; the iirst of these methods ap- plying exclusively to roj-al domains granted out in the manner we have described, the other to such land as had been allotted to the troops on the original conquest, or to land never appropriated by the barbarians, but left in the possession of the antient owners ; for the holding of this was of the same independent character, and received the same appellation of allodium. The interest of the stipendiary or beneficiary tenant did not originally extend beyond his own life, if it was not even determinable at the royal pleasure ; but in course of time it gradually improved in stability, and acquired an hereditary character, which led by a natural progress to the practice of subinfeudation ; for the stipendiary, (or feudatory, as he should now rather be termed,) consider- ing himself as substantially the owner, began to imitate the example of his sovereign, by carving out portions of the benefice or feud, to be held of himself by some other person, on terms and conditions similar to those of the original grant ; and a continued chain of successive de- pendencies was thus established, connecting each stlj)en- diary, or vassal as he was termed [li), with his immediate superior or lord. The beneficiary or feudal relation was well suited to those times of violence and insecurity, and was found by experience to be attended with great advantage both to the lord and the vassal : to the former, as it secured to him a band of military retainers, attached by duty and by (/i) From gwas, a Celtic word for a servant.— Ilallum's Middle Ages, p. loo, 7th ed. ClIAr. IT. — OF TENURES. 1<0 sentiment to liis person ; and to the latter, as it brought tliom into close connection with a powerful superior, under whom they found that shelter from oppression, which the law was then too weak to afford. The effect of this, as regarded the allodial species of property, was remarkable : the allodialist, though enjoying a nominal independence, found himself exposed to all the evils and dangers attendant on a state of civil confusion, and began to contemplate with envy the comparative security of the feudal vassal : he was therefore gradually induced to place himself under the same relation by changing the nature of his property from allodial to feudal ; in order to effect which ho gave up or surrendered his land to some powerful lord, and received it back again from him in the shape of a benefi- cium or feud, to be held upon some kind of service ; or, instead of resorting to this formal transaction, he w^ould in other cases merely acknowledge himself to hold as a vassal to some chosen lord, under specified services, as if by the effect of a former grant, which had, in trutli, never taken place. In one or other of these methods, allodial lands were gradually changed into feudal, in every part of the continent where the feudal system had been introduced ; and this conversion became, in some countries, almost uni- versal ; though, in others, there were many estates which always continued to be held allodially (/). Such, according to the best informed and most discri- minating writers on the subject, is the true history of the origin and establishment of the feudal system (/.•) ; by which we may perceive that it was not, according to the theory adopted by Blackstone, an invention of govern- ment applied systematically by the barbarous tribes to the management of the conquered countries, with a view to security from foreign invasion or domestic insurrection (/), (i) See Co. Litt. by Ilarg. 65 a, lam's Middle Ages, vol. i. p. 142 — • n. (1). 323, 7tli edit. {Ic) See i^ariicularly Eobcrtsou's (/) 2 Bl. Com. pp. 45, 46, Charles V. vol. i. n. (8) ; and Hal- 176 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. but ratlier a conventional arrangement of property, esta- blislied by gradual usage among tbe new dynasties, and brought into general acceptance by its tendency to aggran- dize powerful lords, and to protect persons of inferior rank from the inconveniences of civil disorder. It seems pro- bable, however, that the principle of the heneficinm, or of that contract by which the temporary use of land was bestowed on the one hand, as the stipend for military service to be performed on the other, had been known to the barbarians in their native countries, and before their invasion of the Roman provinces ; and some authority for the supposition seems to be supplied by the passage which Blackstone cites from Floras, relative to the demand wliich the Cimbri and Teutones are recorded to have made of the Roman people, about a century before the Christian era : — " Ut martins impuhis aliqnid sihi tcrrcc claret, quasi stipcndium ; caicruui, tit vcUct, maidhus atqiie annis suis uterctur " {m). [The feud was conferred by words of gratuitous and pure donation, dcdi ct conccssi, which would still be the operative words in a modern infeudation or deed of feoff- ment in the English law. This was perfected by the ceremony of corporal investiture, or open and notorious delivery of possession in the presence of the other vassals ; which perpetuated among them the era of the new acqui- sition, at a tune when the art of writing was very little known, and therefore the evidence of property was reposed in tlio memory of the neighbom-liood ; who, in case of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs adduced by the parties litigant, but also by the internal testimony of their own private knowledge. Besides an oath of fealfi/, or profession of faith to the lord, which was the parent of our oath of allegiance, the (//)) 2 Bl.Com. p.iG. Some writers biirLurous tribes from the Euraau have supposed that tlie iilca of teuure of Enii)hytcusis. (Sec Maiuo feudalism was borrowed by the on Auticnt Law, p. 302.) CHAP. II. — OF ■]^■:^'URL:s. 177 [vassal or tenant, upon investiture, usually did Jiomage to bis lord ; openly and humbly kneeling, being ungirt, un- covered, and holding up his hands both together between those of the lord, who sat before him, and there professing that " he did become his man, from that day forth, of life and limb and earthly honoiu*;" and then he received a kiss from his lord {)i). Which ceremony was denominated homaghun, or manhood, by the feudists, from the stated form of words, devenio vesicr homo (o).] Besides the fealty and homage, the relation of lord and vassal was ordinarily attended with the following feudal incidents (^j) : — 1. Aid, which was originally a mere bene- volence voluntarily granted by the vassal to his lord in time of diiliculty and distress {fj) ; but in process of time came to be considered as a matter of right. 2. Relief, which was a tribute paid to the lord, for " taking up " the estate which had lapsed or fallen in by the death of the last tenant : for while the feuds were not properly here- ditary, but granted by favour of the lord only to the children of the former possessor, the heir used generally to pay a fine or acknowledgment to the lord, in horses, arms, money, or the like, for the renewal of the feud ; and this was called a relief, because, in the words of the feudal writers, '' ineerfani et cadncani hiereditatem relevat," And this relief afterwards, when the feuds became absolutely hereditary, continued to be paid on the death of the tenant, though the original reason of it had ceased to applj'. 3. Fine on aUenatio)\, being a sum of money paid to the («) Litt. s. 85. tliat in au autient game described (o) It was an observation of Dr. by Jiilius Pollux {Oiwmastic.^ 1. 9, Arbuthnot that tradition is nowhere c. 7), under the title of basiUnda, or preserved so pure and incorrupt as tlte kUig I am, the ceremonies and among children, whose games and language of feudal homage are pre- plays are delivered down invariably served with great exactness, from one generation to another. {p) Hallam'sMiddle Ages, vol. i. (Warbui'ton's notes on Pope, vi. p. 181, 7th ed. 131, Svo.) It will not, perhaps, (7) See Bract, lib. ii. tr. 1, c. 16, be thought puerile to remark iu s. 8. confirmation of this observation, vol.. I. If 178 15K. 11. OF jntniTs of property. — pt. i. things real. lord by the tenant whenever he had occasion to make over his land to another. [This depended on the nature of the feudal connection ; for, the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he should, witliout the lord's consent, be at liberty to transfer this gift, either from himself, or from his posterity who were presumed to inherit his valour, to others who uiight prove less able. And as the feudal obligation was looked upon as reciprocal, the feudatory being entitled to the lord's protection in return for his own fealty and service, therefore the lord could no more transfer his seigniory or protection, without the attornment, that is to say, the consent of his vassal, than the vassal could transfer his feud without the consent of his lord (r) ; it being equall}^ unreasonable that the lord should extend his protection to a person to whom he had exceptions, and that the vassal should owe subjection to a superior not of his own choosing.] 4. Escheat and forfeiture, being two different modes by which the relation between the lord and vassal might be dissolved (-s). The first was where the tenant in possession of a feud not granted for life only, but transmissible by hereditary descent, died without leaving any heir behind him upon whom, according to the terms of the original grant, the feud could any longer descend ; in which case it reverted to the lord, that is, the gift, being determined, resulted back to the giver. The second case (that of forfeiture) occurred where the tenant committed some act in violation of his duty towards his lord, such as rendered him unfit to be longer trusted as a vassal ; and the effect of this was that his interest in the feud became forfeited, and returned to tlic lord, as for a breach of that condition of fidelity on which the grant was made (/) . [Feuds, as we have seen, did not originally extend (r) Wright's Tenures, 30. c. xiv. (s) As to escheat, vide post, bk. ii. {t) Wright, ubi sup. 44. pt. I. c. XII. : as to forfeiture, ib. CTIAP. IT. — OF TENrilP.S. 170 [beyoud the life of the first vassal ; but in process of time they were universally extended to his sous, or perhaps to such one of them as the lord should name ; and in this case the form of the donation was strictly observed : for if a feud was given to a man and his so)is, all his sons suc- ceeded him in equal portions ; and, as they died off, their shares reverted to the lord, and did not descend to their children, or even to their surviving brothers, as not being specified in the donation {ii). But when such a feud was given to a man and his Iieirs, in general terms, then a more extended rule of succession took place ; and when the feudatory died, his male descendants in infinitum were admitted to the succession. When any such descendant, who thus had succeeded, died, his male descendants were also admitted in the first place : and, in defect of them, such of his male collateral kindred as were of the blood or lineage of the first feudatory, but no others. For this was an unalterable maxim in feudal succession, that "none was capable of inheriting a feud but such as was of the blood of, that is, lineally descended from, the first feuda- tory " (.r). And the descent, being thus confined to males, originally extended to all the males alike ; all the sons, Avithout any distinction of primogeniture, succeeding to equal portions of the father's feud.] But this was found upon many accounts inconvenient, particularly by dividing the services, and thereby weakening the strength of the feudal union ; and, moreover, honorary feuds, or titles of nobility, had been gradually introduced, which were not of a divisible nature, but could only be inherited by the eldest son {)j) ; and, at length, in imitation of these last, military feuds (or those we are now describing) began also in most countries to descend, according to the same rule of primo- genitiu'e, to the eldest son, in exclusion of all the rest {z). [These were the principal and very simple qualities of the genuine or original feuds, which w^ere all of a military (m) "Wright's Tenures, 17. {y) Feud. ii. oo. \x) Ibid. 183. (c; Wright, ubi sup. 32. n2 180 CK. II. OF RIGHTS OF PROPERTY. — FT. I. THINGS REAL [nature, and in the hands of military persons ; though the feudatories, being under frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit part of them to inferior tenants, obliging them to such returns, or red it us — that is to say, rents — in ser- vice, corn, cattle, or money, as might enable the chief feudatories to attend to their military duties without dis- traction. And by tliese means the feudal polity was greatly extended, these inferior feudatories (who held what are called in the Scots law " rerefiefs ") being under similar obligations of fealt3^ to do suit of court, to answer the stipulated renders or rent-service, and to promote the w^elfare of their immediate superiors or lords {a). But this at the same time demolished the antient simplicity of feuds ; and an inroad being once made upon their con- stitution, it subjected them, in course of time, to great varieties and innovations. Feuds began to be bought and sold, and deviations were made from the old fundamental rules of tenure and succession, which were held no longer sacred, when the feuds themselves no longer continued to be purely military. Hence these tenures began now to be divided into /coda j)i-oj)n'n et iinpropria, proper and improper feuds ; under the former of which divisions were compre- hended such, and such only, of which we have before spoken, and under that of improper or derivative feuds were comprised all such as do not fall within the other descripti(m ; such, for instance, as were originally bartered and sold to tlie feudatory for a price ; such as were held upon base or less honourable services, or upon a money rent, in lieu of military service; such as were in them- selves alienable, without mutual licence ; and such as might descend indifferently either to males or females. But where a difference was not expressed in the creation, such new-created feuds did in all respects follow the nature of an original, genuine and proper feud {b). i") Wri-lit's Tomires, 20. {b) Ibid. 36. ( llAl'. 11.— OF IKM KE.S. 181 [The feudal polity of wliicli we have hero presented an outliue seems not to have been received in this part of DUX island, at least not universally, and as a part of the national constitution, till the reign of William the Nor- man {(•). Not hut that it is reasonable to believe, from abundant traces in our history and laws, that even in the times of the Saxons, — who were a swarm from what Sir William Temple calls the same northern hive, — something similar to this was in use, yet not so extensively, nor attended with all the rigour that was afterwards imported by the Normans : for the Saxons were firmly settled in this island as least as early as the year 600 ;] and it was not until the eleventh or twelfth century that feuds arrived to their full vigour and matui'ity, even on the continent of Europe (d). [This introduction, however, of the feudal tenures into England by King William, does not seem to have been effected immediately after the Conquest, nor by the mere arbitrary will and power of the Conqueror ; but to have been gradually established by the Norman barons and others, in such forfeited lands as they received from the gift of the Conqueror ; and afterwards universally con- sented to by the great council of the nation, long after his title was established. Indeed, from the prodigious slaughter of the English nobility at the battle of Hastings, and the fruitless insm-rections of those who survived, such numerous forfeitures had accrued, that the Conqueror was able to reward his Norman followers with very large and extensive possessions ; and their regard for the feudal law, under which they had long lived, together with the king's recommendation of this policy to the English, as the best way to put themselves on a military footing, and thereby to prevent any future attempts from the continent, were {c) Spelm. Gloss. 218; Bract. 1.2, a.d. 800, as tlie period of the fuU c. 16, s. 7. maturity of the feudal system, aud (d) Hallam's Middle Ages, vol. i. he cites Craig, 1. 1, t. 4. p. 102, 7th ed. Blackstone fixes 182 UK. 11. OF RIGHTS OF rKOPEKTY. — PT. I. THINGS REAL. [probably the reasons that prevailed to effect its establish- ment here by law. And, though the time of this great revolution in our landed property cannot be ascertained with exactness, yet there are some circumstances that may lead us to a probable conjecture concerning it ; for we learn from the Saxon Chronicle (e), that in the nineteenth year of King William's reign an invasion was apprehended from Denmark ; and the military constitution of the Saxons being then laid aside, and no other introduced in its stead, the kingdom was wholly defenceless ; which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might co-operate with the king's remonstrances, and the better incline the nobility to listen to his proposals for putting themselves in a posture of defence ; for, as soon as the danger was over, the king held a great council to inquu-e into the state of the nation (/) ; the immediate consequence of which was the compiling of the great survey called Domesday Book, which was finished in the next year : and in the latter end of that very year the king was attended by all his nobility at Sarum, where all the principal land- holders submitted their lands to the yoke of military tenure, became tlie king's vassals, and did homage and fealty to his person (g). This may possibly have been the era of formally introducing the feudal tenures by law ; and perhaps the very law, thus made at the council of Sarum, is that which is still extant, and couched in these remarkable words — " Sfatitinnis, lit omncs Uberi /ioi/ii)tcs fcedcre et sacramento affirment, quod intra ct extra unirersum (e) A.D. 1085. qnot assent notco melioHs per tot am (/) '^ Hex tenuit magmtm conci- AngUam, ejus homines facti sunt, ct Hum, et (/raves sermoncs hahiiit cum omncs sc illi suhdidcrc, cjusquc facti suis proceribus de hdc terra; quo mode sunt vasalli, ac cijidelitatisjuramenta incokretur, et a qnibus hominibusy — ^)r(P.s^i7pr«w^, se contra alios quoscun- Chron. Sax. ib. que illi Jidos futuros." — Chron. Sax. (g) " Omncs jn-fcdia ienciitcs, quot- A. p. 1086. CHAP. II. — OF TENURES. 183 \_i'egmim Anglice Wilhehno regi domino stio fdeles esse volunt ; terras et honores illiiis oniiii Jidelitate uhique servare cum eo, et contra inimicos ct alienigoias defcndere " (A). The terms of this law, as Sh* Martin Wright has observed, are plainly feudal {i) ; for, first, it requires the oath of fealty, which made, in the sense of the feudists, every man that took it a tenant or vassal ; and, secondly, the tenants obliged them- selves to defend their lord's territories and titles against all enemies foreign and domestic. But what clearly evinces the legal establishment of this system, is another law of the same collection, which exacts the performance of the military feudal services as ordained by the general council. " Omnes comifes,et baroiies, et militcs,et servienfes, et unicersi Uheri liomines totiiis rcgni nostri pnedicti, liaheant et teneant se sonpcr bene in arniis et in eqiiis, ut dccet et oportet ; et sint semper prompt i et bene parati ad servitium suum integrum nobis explendum et jjeragendum, cum opus fuerit; secundum quod nobis debent de feodis et tenement is suis de Jure facere, et sicut il/is statuimus per conimune con- cilium tot i us regni nostri 2)ra'dicti" (/>•). It is probable that, by thus consenting to the introduc- tion of feudal tenures, our English ancestors meant no more than to put the kingdom in a state of defence by establishing a military system, and to oblige themselves, in respect of their lands, to maintain the king's title and territories with equal vigour and fealty, as if they had received their lands from his bounty upon these express conditions, as pure, proper, beneficiary feudatories. But whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feudal constitutions, and well understanding the import and extent of the feudal terms, gave a very different construction to this proceed- ing ; and thereupon took a handle to introduce not only the rigorous doctrines which prevailed in the Duchy of Nor- mandy, but also such fruits and dependencies, such hard- (/() Wilkins's Leg. Anglo-Sax. {i) Tcmiref?, 66. LL. Giiil. Con. c. 52. (/?) Wilkins's Leg. nbi sup. c. 28. 184 BK. 11. OF KIGHTS OF PKOrEKTV. — VT. I. THINGS REAL, [ships and service?, as were never known to other nations ; as if the English had, in fact as well as in theory, owed everything they had to the Lounty of their sovereign lord (/). Our ancestors, therefore, who were hy no means bene- ficiaries, but had barely consented to this fiction of tenure from the crown as the basis of a mihtary discipline, with reason looked upon these deductions as grievous imposi- tions and arbitrary conclusions from principles that, as to them, had no foundation in truth {m). However, the Conqueror, and his son "William Rufus, kept up with a high hand all the rigours of the feudal doctrines ; but their successor, Henry the first, found it expedient, when he set up his pretensions to the crown, to promise a resti- tution of the laws of King Edward the Confessor, or antient Saxon system ; and accordingly, in the first year of his reign, granted a charter, whereby he gave up the greater grievances, but still reserved the fiction of feudal tenure, for the same military purposes which engaged his father to introduce it (/?). But this charter was gradually broken through, and the former grievances were revived and aggravated by himself and succeeding princes ; til], in the reign of King John, they became so intolerable, that they occasioned his barons or principal feudatories to rise up in arms against him ; and thus at length produced the famous great charter at Running-mead, which, with some alterations, was confirmed by his son Henry the third (o).] And, though the immunities granted by King John (espe- cially as his charter was finally altered, in its last edition, (/) See Spelm. of Feuds, c. 28. (the Magna C'harta, consisting' of (m) AVright's Tenures, 81. thirty-.«even cliapters, jji-inted un- («) Wilkins's Leges Anglo-Sax. der 2') Edward 1, in our present LL. Hen. 1, c. 1. Statute Book,) has never received (o) The charter granted by King any alterations. But Sir E. Coke John received confirmation, with reckons thii'ty-two instances where- Bome not inconsiderable variations, in it has been solemnly ratified. iu the first, second, and ninth years (Ilallam's Mid. Ages, vol. ii. of Henry's rcigu. The last of these p. 152, 7th ed.) CIIAV. TI. — OF TKXrKi;^. l(So by Henry tlie third,) are very greatly short of those granted by Henry the first, they were justly esteemed at the time a vast acquisition of English liberty. And although, by reason of the alteration of tenures, — which principally took place, as we shall presently see, in the reign of Charles the second, — many of these immunities may now appear, to a common observer, of much less consequence than they really were when granted ; this, properly considered, will show, not that the acquisitions under John were small, but that those under Charles were greater. [And from hence also arises another inference ; that the liberties of Englishmen are not mere infringe- ments of the king's prerogative, extorted from our princes by taking advantage of their weakness, but a restoration of that antient constitution of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived of by the force of the Norman arms.] The general introduction of strict feudal principles into this country, as above explained, gave rise to that fundamental maxim of the law of England which still prevails, that all land belonging to any subject is holden of some superior, and either mediately or im- mediately of the sovereign (^j) ; for in this realm, ac- cording to Sir E. Coke, we have not allodiiini, the name by which the feudists abroad distinguished such estates of the subject as were not holden of any superior (q). And as all lands in England are holden, they are conse- quently called tenements, the possessors thereof tenants, and the manner of their possession a tenure (r). Where the tenure was of the sovereign immediately, it was said to be in capite, or in chief. And this was of two kinds, either ut de honore (where the land was held of the king as the proprietor of some honour, castle, or manor), or iit de corona (where it was held of him in right of the (p) Co. Litt. by Harg. 93 a, 1 a, p. 174. 1 b, 65 a. {>•) Co. Litt. ubi sup. lb; 2 Bl. (7) lb. 64 a, n. (1) : ct vide sup. C. 5,). 186 liK. II. or IMGllTS OF PROPERTY. — PT. I. THINGS REAL. c^o^vn itself) ; and it is to the latter kind tliat the term of tenure iu capite was more especially applied (-s). - But the holding might also he mediate, that is, in the way of subinfeudation (/"). [For such tenants as held under the king immediately, when they granted out portions of their lands to inferior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king : and, thus partaking of a middle nature, were called mesne or middle lords. So that if the king granted a manor to A., and A. granted a portion of the land to B., now B. was said to hold of A., and A. of the king ; or in other words, B. held his lands imme- diately of A., but mediately of the king. The king there- fore was styled lord ^yaranwunf ; A. was both tenant and lord, or was a mesne lord ; and B. was called tenant ^J«r^^- vail, or the lowest tenant (ii). This distinction of mediate or immediate tenancy ran through all the different sorts of tenure, which we shall here proceed severally to consider. There seem to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced : and the grand criteria of these were the natures of the several services or renders that were due to the lords from their tenants. The services, in respect of their quality, were either free or base ; in respect of their c^uantity and the time of exacting them, they were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier, or a freeman, to perform ; as to serve under his lord in the wars, to pay a sum of money, and the like. Bat^e ser- vices were such as were fit only for peasants, or persons («) It seems that whcu tenure in Aliiii. 11 ; Wrij^ht'sTcn. 163.) Sec capite was mentioned generally, it however tlie remarks which are •was umlerstooil to apply to a tenure made on this subject in Co. Litt. tit de corona and not nt de honore. by Harg. 108 a, n. (3). (Co. Litt. 108 a ; 2 Inst. 61 ; Mag. [l) Vide sup. p. 174. CTiar. c. 31 ; 1 Edw. 3, tt. 2, c. 13; ('«) 2 Inst. 296. 1 Edw. 6, c. 4; F.N. B. 17'k Bro. CHAP. II. — OF TENURES. 187 [of a servile rank ; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employ- ments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence ; as, to pay a stated annual rent, or to plough such a field for three days. The uncertain de- pended upon unknown contingencies ; as to do military service in person, or pay an assessment in lieu of it, when called upon ; or to wind a horn whenever the Scots invaded the realm ; which are free services.: or to do whatever the lord should command ; which is base, or villein service.] The various combinations of these services gave rise to the various kinds of lay tenure. Of these Bracton (who wrote under Henry the third) seems to give the clearest and most compendious account of any author antient or modern ; and of this, the following is an outline or abstract. " Tenements are of two kinds, frank-tenement " and villenage. x\nd of frank-tenements some are held " freely, in consideration of homage, and Iniiglit-scrvicc ; " others in frce-socage with the service of fealty only, or " with fealty and homage, according to some authori- " ties" {x). And, again, "Of villenages some are pure, " others privileged. Furc villenage is where a man holds *' upon terms of doing whatsoever is commanded of him, *' nor knows in the evening what is to be done in the " morning, and is alwaj's bound to an uncertain service. " There is also another kind of villenage holden of the " king, from the time of the Conquest, which is called " rillein-socage, and which is villenage, but of a privileged " sort. Such tenants of the king's demesnes have the " privilege that they cannot be removed from the land " while they do the service due ; and these villein-socmen *' are properly called glebce ascriptitii. They perform " villein services, but such as are certain and deter- " mined" (g). This account, illustrated as it is by other authorities, proves that there antiently existed (as before (.i;) Bract. 1. 4, c. 28, § 1. (y) Ibid. § 5. 188 i;k. 11. 01' uioiirs oi' I'lcorKKiv. — pt. i. things keal. remarked) four principal kinds of lay tenure : and that they were as follows — scrrifiiim niiUtare, that is knight- service, or in law-French, chivalrij or service de ehivakr, answering to the fief (Vhauhert of the Normans, — where the service was free, but uncertain (;:) : Uherum socarjiuiii (free socage), w'here is was not only free, bat certain: j)H)-iii)i rtJk)uifjtuni (pure villenage), where it was base in its nature, and uncertain : and lastly, riUenaginm prin'/egi- atum (or villein socage), w^here it was base but certain ; and this last seems principally to have prevailed among those who are above described as " tenants of the king's demesnes." The four kinds of tenure above enumerated, however, in process of time were described as only three, viz. kiiight- service, free socage, and cojxjhold ; which last comprises both the species of villenage to which Bracton refers. These three subsisted in England till the middle of the seventeenth century, and the two last subsist to this day. We will proceed to examine a little into the character of each of them. First, as to hnigJit-service, otherwise called tenure by chivalry. [This was the most universal, and esteemed the most honourable species of tenure, and it differed in very few points from a pure and proper feud, being entirely military in its character. To make this holding, it was necessary that the tenement in point of quantity f-hould amount to twelve ploughlands [a) ; which Avas called a knight's fee, feodum militare {b) ; and the value of which is stated in 1 Edw. II. at £20 per annum (c). And he who held this proportion of land (or a whole fee) by knight-service, was bound to attend his lord to the (;) Spelm. Glo.ss. 219. Tenure carucatu tcrrte, ■\va.s as mucli as one by "knight-service," is expressly ploug-h could plough in a year, called ".//(/ (r/iaubiif in the Mil-- (Co. Litt. 69 a.) rour (c. 2, § 27). {/') lust, ubi sup. (a) 2 Inst. 596. A ploim-liland, (r) Ibid. ; Co. Litt. ubi sup. CHAP. II. — OF TEXURKS. IcSU [wars for forty days in every year, if called upon {d) ; which attendance was his rcdifus or return, his rent or service for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion (e) . And there is reason to apprehend, that this service was the whole that our ances- tors meant to subject themselves to ; the other fruits and consequences of this tenure being fraudulently super- induced, as the regular (though unforeseen) appendages of the feudal system. This tenure had all the marks of a strict and regular feud : it was granted by words of pure donation, dedi et conccssi (/) ; was transferred by investiture or delivering corporal possession of the land, usually called " livery of seisin ; " and was perfected by homage and fealty (r/).] It also drew after it the following consequences, some of which, as we have seen, were ordinar}'' feudal incidents, and therefore in general observance, not in England only, but throughout a large portion of the continent {h). 1, In tenure by chivalry (or knight-service) the land on the death of the tenant passed by descent to his heir, for the practice of granting feuds Jure luervdifario has been in use amongst us ever since the Norman Conquest (/) ; and {(I) Mr. Seklen couteuds that a (//) Vide sup. p. 183. TLe local knight's fee did not consist of land extent of the feudal law is pointed of a fixed extent or value, but was out in Hallam's Mid. Ages, vol. i. as much as the king was pleased pp. 200 — 203 {7th ed.), where its to grant, upon the condition of regular machinery and systematic having the service of one knight. establishment are considered as (Tit.of Hon.p. 2,0.5, ss. 17and26.) chiefly ajiplyiug "to the domi- («) Litt. § 95. " nions of Charlemagne and to (/) Co. Litt. 9. " those countries which afterwards {g) As to homage and fealty, vide " derived it from thence." Den- sup. p. 177; Co. Litt. 61a, 67 b. mark, Sweden, Bohemia, and Hun- Foreign jurists frequently blend gary are particularly mentioned as homage and fealty together, but countries not influenced by the in England they were distinct. feudal system. Co. Litt. by Harg. G8 a, n. (1). (/j Hist. Eng. Law, by Lceves, vol. i. X)- 36- 100 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THlNfiS REAL. in tliis descent sons succeeded before daughters, and an elder son before a younger (/.•). 2. If the heir in chivahy was under the age of twenty- one, being a male, or fourteen, being a female, the lord was entitled to the urirdahip of the heir, and was called the guardian in chivalry (/). This wardship consisted in having the custody of the body and lands of such heir, without any account of the profits, till the age of twenty- one iu males, and fourteen in females. For the law supposed the heir-male unable to perform knight-service till twenty-one : but as for the female. Sir E. Coke remarks, that at the age of fourteen she might govern an household, and marry a husband, who could do knight's service. The lord therefore had no wardship, if at the death of the ancestor the heir-male was of the full age of twenty- one, or the heir-female of fourteen ; yet, if she was then under fourteen, the lord might not only keep her in ward till she attained that age, but if she remained un- married, he might keep her land in liis custody two years longer by virtue of the statute of Westm. I., 3 Edw. I., c. 22 (m). [This wardship, so far as it related to land, though it was not, nor could be, part of the law of feuds, so long as they were arbitrary, temporary, or for life only ; yet, when they became hereditary, and did consequently often descend upon infants, who by reason of their age could neither perform nor stipulate for the services of the feud, does not seem upon feudal principles to have been unrea- sonable. For the wardship of the land, or custody of the feud, was retained by the lord, that he might out of the profits thereof provide a fit person to supply the infant's services, till he should be of age to perform them himself : (A-) Hale's Hist. C. L. c. 11. 7th edit.) (/) Wdrchhlp and marriage -were {m) Litt. s. 103 ; 2 Inst. 204 ; not ordinarj' feudal incidents, but Black.stouc states the guardianship nearly peculiar to England and of females to have lasted till six- Normandy. (Hallam, Mid. Ages, teen. But see Coleridge's Black- vol. ii. pp. 429, 2lo: vol. i. p. 190, stone, vol. ii. p. 67. CHAP. II. — OF TENURES. 101 [and, if we consider tlie feud in its original import, as a stipend, fee or reward for actual service, it could not be thought hard that the lord should withhold the stipend, so long as the service was suspended : though undoubtedly to our English ancestors, where such a stipendiary dona- tion was a mere supposition or figment, it carried abun- dance of hardship ; and accordingly it was relieved by the charter of Henry the first, before mentioned, which took this custody from the lord, and ordained that the custody, both of the land and the children, should belong to the widow or next of kin. But this noble immunity did not continue many years. The wardship of the body was a consequence of the wardship of the land ; for he who enjoyed the infant's estate was the properest person to educate and maintain him in his infancy : and also in a political view, the lord was most concerned to give his tenant suitable education, in order to qualify him the better to perform those services which in his maturity he was bound to render. When the male heir arrived to the age of twenty-one, or the heir female to that of sixteen, they might sue out their livery or oustcrkmain ; that is, the delivery of their lands out of their guardian's hands (»). For this tliey were obliged to pay a fine, namely, half a year's profits of the land ; though this seems expressly contrary to Magna Charta (o). However, in consideration of their lands having been so long in ward, they were excused all the reliefs ; and the king's tenants all the primer seisins, also to be hereafter mentioned (jj). In order to ascertain the profits that arose to the crown by these first fruits of tenure, and to grant the heir his livery, the itinerant jus- tices, or justices in eyre, had it formerly in charge to make inquisition concerning them by a jury of the county, commonly called an inquisifio post mortem (q) ; which was instituted to inquire (at the death of any man of fortune) («) Co. Litt. 77 a. (p) Litt. ubi sup. (o) 25 Edw. 1, c. 3. («?) Hoverlon, sub Kich. 1. 192 ]!K. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [the value of his estate, the tenure by which it was holden, and who, and of what age, his heir was ; thereby to ascer- tain the relief and value of the primer seisin, or the ward- shij) and livery accruing to the king thereupon. A manner of proceeding that came in process of time to be greatly abused, and at length an intolerable grievance ; it being one of the principal accusations against Empson and Dudley, the wicked engines of Henry the seventh, that by colour of false inquisitions they compelled many persons to sue out livery from the crown, who by no means were tenants thereunto (r). And afterwards a court of wards and liveries was erected, for conducting the same inquiries in a more solemn and legal manner (s). When the heir thus came of full age he was to receive the order of knighthood, and was compellable to take it upon him, or else pay a fine {f). For, in these heroical times, no person was qualified for deeds of arms and chivalry who had not received this order, which was conferred with much preparation and solemnity. We may plainlj^ dis- cover the footsteps of a similar custom, in what Tacitus relates of the Grerraans, who, in order to qualify their young men to bear arms, presented them in a full assembly WTth a shield and lance ; which ceremony is supposed to have been the original of the feudal knighthood {u). This prerogative of compelling the vassals to be knighted, or to pay a fine — as expressly recognized in parliament by the statute de MiUtihu^ — was exerted as an expedient for raising money by many of om* best princes, particularly {)•) 4 last. 198. commissions issued by Echvard the {k) St. 32 Hen. 8, c. 46; 33 Ilcn. sixth and Queen Elizabeth, was 8, c. 22. not limited to the king's tenants. (<) Blackstone adds here (vol. ii., And see 16 Car. 1, c. 20. p. 69), "provided ho held a knight's («) "/« ipso concilio vel princlpum fee /w ) ; or, as it was expressed in the first draft of that charter, " ita tnaritentur ne dis- para(jentin\ et per consUhim jirop/nquonini de conmnguinUate sua, " (r). But these provisions in behalf of the relations were omitted in the charter of Henry the third : wherein the clause stands merely thus — " //(vrcdcs mariteniur absque dixparagatione " [d ) : meaning certainly, by *//ccredes, heirs female, as there are no traces before this to be found of the lords claiming the marriage of heirs male (e) ; and as Glanvil expressly confines it to heirs female (/). But the king and his great lords thenceforward took a handle (from the ambiguity of this expression) to claim them both, sive sit maseulus sire fwmina, as Bracton more than once ex- presses it {g) : and also, as nothing but disparagement was restrained by Magna Charta, they thought themselves at liberty to make all other advantages tliat they could (//) . (a) Gr. Chist. 95. the providing of a husband, {b) Cup. 6, edit. Oxon. (/) L. 7, cc. 9 and 12, and 1. 9, (<•) lb. 3. c. 4. (f/) rb. 6. {g) L. 2, c. 38, s. 1. (r) The -words mariiarc nnd mnri- {h) Wright's Tenures, 97. tagivm seem ex vi tnmlni to denote CHAP. IT. — OF TE\rRF,>. lOo [And afterwards this right of selling the ward in marriage, or else receiving the price or value of it, was expressly de- clared by the statute of Merton (/) ; which is the first direct mention of it perhaps to be met with, in our own or any other law. 4. The tenant in chivalry was also liable to aids. These in England were principally three : first, to ransom the lord's person, if taken prisoner; a necessary consequence of the feudal attachment and fidelity ; insomuch that the neglect of doing it, w^henever it was in the vassaFs power, was, by the strict rigour of the feudal law, an absolute forfeiture of his estate (/.•). Secondly, to make the lord's eldest son a knight : a matter that was formerly attended with great ceremony, pomp, and expense. This aid could not be demanded till the lord's heir was fifteen years old, or capable of bearing arms (/) ; the intention of it being to breed up the eldest son and heir apparent of the seigniory to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion ; for daughters' portions were in those days extremely slender, few lords being able to save much out of their income for this purpose : nor could they acquire money by other means, being wholly conver- sant in matters of arms ; nor, by the nature of their tenm-e, could they charge their lands with this, or any other in- cumbrances. From bearing their proportion to these aids, no rank or profession was exempted : and therefore even the monasteries, till the time of their dissolution, con- tributed to the knighting of their founder's male heir (of whom their lands were holden) and the marriage of his female descendants {m). And one cannot but observe, in this particular, the great resemblance which the lord and vassal of the feudal law bore to the patron and client of the Roman republic {n) ; between whom also there sub- (0 20 Hen. 3, c. 6. {in) Philip's Life of Pole, 1. 223. {k) Feud. 1. 2, t. 24. («) See Maine's Antient Law, {I) 2 Inst. 233. p. 313. ()2 lOG BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [sisted a mutual fealty, or engagement of defence and pro- tection. Eor, with, regard to the matter of aids, there were three which were usually raised by the client ; viz. to marry the patron's daughter ; to pay his debts ; and to redeem his person from captivity (o). But in addition to these antient feudal aids, the tyranny of lords by degrees exacted more and more ; as, aids to pay tbe lord's debts (probably in imitation of the Romans), and aids to enable him to pay aids or reliefs to liis superior lord ; though, from these last, the king's tenants in capitc were, from the nature of their tenure, excused, as they beld immediately of the king, who had no superior.] To prevent this abuse. King John's Magna Charta ordained, that no aids be taken by the king of his tenants in capita without consent of parliament, nor in any wise by inferior lords, save only the three antient ones above mentioned ( p). But this provision was omitted in Henry the third's charter, and the same oppressions were continued till the twenty- fifth year of Edward the first, when the statute called Con- firmatio Chartarum was enacted ; which in this respect re- vived King John's charter, by ordaining that none but the antient aids should bo taken. These ordinances, however, related to the species of aids only ; the quantify of each aid was provided for by other statutes. King John's charter indeed ordered, that all aids taken by inferior lords should be reasonable [q) ; as well as that the aids taken by the king of his tenants in capite should be settled by parlia- ment (r). But aids were never completely adjusted till the statute Westm. I. (3 Edw. I.) c. 3G, and 25 Edw. III. stat. 5, c. 11, the former of which fixed the aid of a mesne (or inferior) lord, for making his eldest son a knight, or (o) ^' Ilrat auiem hacinter utrosque i-ent.^' — Paul Manutius de Soiiatu officiorum vicissitiido — ut cUentes ad Romano, c. 1. collocatidas senatorum Jilias de suo (p) Caps. 12, 15. confirrcnt ; in ceris alieni dissolu- (q) lb. 15. tioticm gratnitampecuniamerogarent; [r) lb. 14. et ah h'lslihiis hi hello captos rcdime- CHAP. II.— OF TK.MKKS, V-K marrying liis eldest tlaugliter, at twenty sliillingg, that is to say, the supposed twentieth part of the annual value of every knight's fee : and the latter statute did the same A\ith regard to the king's tenants in capitc. The other aid, for ransom of the lord's person, being not in its nature capable of any certainty, was on that account never ascer- tained. 5. [The tenant in chivalry was liable besides to relief. This was looked upon, very justly, as one of the greatest grievances of tenure : especially when, at the first, it was merely arbitrary and at the will of the lord ; so that, if he pleased to demand an exorbitant relief, it was in effect to disinherit the heir [s). The English ill brooked this consequence of their new-adopted policy ; and therefore William the Conqueror by his laws ascertained the relief, by directing, in imitation of the Danish heriots, that a certain quantity of arms and habiliments of war should be paid by the earls, barons, and vavasours respectively ; and if the latter had no arms, thej' should pay 100s. (;'). William Rufus broke through this composition, and again demanded arbitrary uncertain reliefs, as due by the feudal laws; thereby in effect obliging every heir to purchase anew or redeem his land {ii) : but his brother, Henry the first, b}^ the charter before mentioned, restored his father's law : and ordained that the relief to be paid should be according to the law so established, and not an arbitrary redemption {x). But afterwards, when, by an ordinance in the twenty-seventh year of Henry the second, called the " assize of arms," it was provided that every man's armour should descend to his heir, for defence of the realm ; and it thereby became impracticable to pay these acknowledgments in arms, according to the laws of the (.s) Wright's Tenures, 99. (.r) " ILercs )ion redimet terram {() Wilkins's Leges Anglo-Sax. snain skut faciebat tempore fratris LL. Guil. Con. cc. 22, 23, 24. met, sed legitima ct Justa relevationo (w) 2 Roll. Abr. 514. rclcvabit crow." — Text. Roffcus. cap. 34. 198 BK. 1I*U)F RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [Conqueror ; the composition was universally accepted of lOOs. for every knight's fee, as we find it ever after esta- blished (y). But it must be remembered that this relief was only payable if the heir at the death of his ancestor had attained his full age of one and twenty years (z). 6. The tenant in chivalry was also liable to the pay- ment of primer seisin, which was, however, a burthen only incident to the king's tenants in cajnte, and not to those who held of inferior or mesne lords {a). It was a right which the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir, (provided he were of full age,) one whole year's profits of the lands, if they were in immediate possession ; and half a year's profits, if the lands were in reversion ex- pectant on an estate for life {h). This seems to be little more than an additional relief, l)ut grounded upon this feudal reason ; that, by the antient law of feuds, imme- diately upon the death of a vassal the superior was en- titled to enter and take seisin or possession of the land, by way of protection against intruders till the heir ap- peared to claim it and received investiture, during which interval the lord was entitled to take the profits ; and unless the heir claimed within a year and a day, it was by the strict law a forfeiture [c). This practice, however, seems, in England, not to have long obtained, if ever, with regard to tenure under inferior lords ; but as to tenure in capile, the prima seisina was expressly declared, under Henry the third and Edward the second, to belong to the king by prerogative, in contradistinction to other lords (r/). The king was entitled to enter and receive t]ie whole {y) As to what was a " knight's could not pay the relief. — Hallam, fee," vide sup. p. 188. Mid. Ages, vol. i. p. 183 (7th {;) Glanv. 1. 9, c. 4; Litt. § 112. edit.). (rt) Trimer seisin seems not to {//) Co. latt. 77 a. have been an ordinary feudal inei- (r) Feud. 1. 2, t. 24. dent, though in Franco the lord (d) Stat. Marlb. (52 Hen. 3) • might enter on the lands and c. 16 ; Prerogaliva Eeyis (17 Edw. possess them for a year if the heir 2). c. 3. CHAP. II. — OF TENURES. 199 [profits of the land, till livery was sued, whicli suit being commonly made within a year and a day next after the death of the tenant, in pursuance of the strict feudal rule, therefore the king used to take, as an average, the first fruiis, that is to say, one year's profits of the land(t'). And this afterwards gave a handle to the popes — who claimed to be feudal lords of the Church — to claim, in like manner, from every clergyman in England the first year's profits of his benefice, by way of priuiifice or first fruits.] 7. The tenant in chivalry, on arriving at the full age of twenty-one, had the power of aliening his land by sale ; but only so that it should be held of the same lord of whom he had himself held it previously (/) ; and the tenant had no power of aliening it by a testamentary disposition. 8. If the tenant in chivalry held in capite he was com- pelled on aliening his land to pay ^fine ; for if he aliened ^^'ithout obtaining a licence, it became a question whether the land was not absolutely forfeited (g) . [But this severity was mitigated by the statute 1 Edward III. c. 12, which declared, that in such a case the lands should not be forfeited, but a reasonable fine be paid to the king. Upon which statute it was settled, that one- third of the yearly value should be paid for a licence of alienation ; but if such tenant presumed to aliene without a licence, a full year's value should be paid (/?).] If, however, the tenant did not hold i)i capite, but of a mesne lord, no fine on alienation seems to have been exacted. 9. The estate of the tenant in chivalry was liable to the incidents of escJtcat and forfeiture. These were feudal {c) Staundf. Prerog. 12. tion; that is, to hold as of hiia- (/ ) This was by the statute of self ; and in general only a part of Quia emptorcs (18 Edw. 1, st. 1). his lands. Sec Wright's Tenm-es, This statute applied both to tenants p. 154; Co. Litt. by Harg. 43 a, in chivalry and those in socage: (2 n. (2) ; 2 Bl. Com. p. 161. Inst. 501.) Even anterior to its [g) 2 Inst. 66. provisions the tenant might aliene, {h) Ibid. 67. but only by way of sub-iiifcuda- '200 P.K, n, OF RIGHTS OF rROPEUTY. — PT. T. TlllXCiS REAL. incidents attaching in full force to tlie tenure in eliivalry, and were attended besides with a severity which seems to have been peculiar to England (/), namely, that by attcnnder (as it was termed) of treason or felony the tenant not only forfeited his land, but his blood was held to be corrupted or stained ; whereby every inheritable quality A\-as entirely blotted out and abolished, so that no land could thereafter be transmitted from him or through him in a course of descent (/•) . These were the principal qualities, fruits, and conse- quences of the tenure by knight-service: a tenure by which a great part of the lands in this kingdom was held, till the middle of the seventeenth century ; and which was created, as Sir Edward Coke expressly testi- fies, for a military purpose (/) : viz. for defence of the realm by the king's own principal subjects ; which was judged to be much better than to trust to hirelings or foreigners. The description here given is that of knight- service proper ; which was to attend the king in his wars. But there were also some other species of knight-service ; so called (though improperly) , because the service or render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knight-service proper, and also because they were attended with similar fruits and consequences. [Such was the tenure by (jmncl serjeantij, per mofjnum servitium, whereby the tenant was bound, in- stead of serving the king cjcncralbj in his wars, to do some special honorary service to the king in person ; as to carry his banner, his sword, or the like {m) ; or to be his butler, champion, or other officer, at his coronation {n). This tenure was in most other respects like knight-service (o) ; only the tenant was not bound to pay aid (^;), or escuage (o) ; (i) Hallam, Mid. Ages, vol. i. (w) Co. Litt. by Ilarg. 108 a, p. 188, 7th ed. ; 2 Bla. Com. 2 54. n. (1). {k) The subject of attainder is («) Litt. s. 1.j3. considered post, bk. vi. (o) lb. s. 158. (/) 4 Inst. 192. [p) 2 Inst. 233. tllAr. II. — OF TENURES. 201 [and, wliile tenant by kniglit-service paid five pounds for a relief on every knight's fee, "tenant by grand serjeanty" paid one year's value of bis land, were it much or little {>•). Moreover, none could hold by grand serjeanty, save of the king onl}'. As to tenure by cornage, — to wind a horn when the Scots or other enemies entered the land, in order to warn the king's subjects,— this, like other services of the same nature, when the tenure was immediately of the king (s), was a species of grand serjeanty {t). These services, both of chivalry and grand serjeanty, were all personal and uncertain as to their quantity or duration. But the personal attendance in knight-service growing troublesome and inconvenient in many respects, the tenants found means of compounding for it ; first, by sending others in their stead, and in process of time by making a pecuniary satisfaction to the lords in lieu of it. This pecuniar}'- satisfaction at last came to be levied by assessments, at so much for every knight's fee ; and therefore this kind of tenure was called scutagium in Latin, or scrvitiion scufi ; scutum being then a well- known denomination for money : and in like manner it was called, in our Norman-French, escuage : being indeed a pecuniary, instead of a military service (ii). The first time this appears to have been taken, was in the fifth year of Henry the second, on account of his expedition to Toulouse ; but it soon came to be so uni- versal, that personal attendance fell quite into disuse. Hence we find in our antient histories, that from this period, when our kings went to war, ihej levied scutages on their tenants, that is, on all the landholders of the kingdom, to defray their expenses, and to hire troops : and these assessments, in the time of Henry the second, (/•) Litt. s. 154. sliiold," i.e. of arms, being a (.v) Co. Litt. 107a. compensation for actual service; {() Litt. s. 156. SCO Co. Litt. by Harg. 68 b, 73 a, («) Littleton, Coke, andBracton, n. (2), 74 a, n. (1). render it the " service of the 202 BK. II. OF RIGHTS OF PROPERTY. PT, I. THINGS REAL. [seem to liave been made arbitrarily and at the king's pleasure. Which prerogative being greatly abused by his successors, it became matter of national clamour ; and King John was obliged to consent, by his Magna C/iarta, that no scutage should be imposed without consent of parliament (.r). But this clause was omitted in his son Henry the third's charter (//) : where we only find that scutages or escuage should be taken as they were used to be taken in the time of Henry the second : that is, in a reasonable and moderate manner. Yet afterwards, by statute 25 Edward I., and many subsequent statutes (~), it was again provided that the king should take no aids or tasks but by the common assent of the realm ; hence it was held in our old books, that escuage or scutage could not be levied but by consent of parliament (a), such scutages being indeed the groundwork of all succeeding subsidies, and the land-tax of later times. By the degenerating of knight- service, or personal military duty, into escuage or pecuniary assessments, all the advantages (either promised or real) of the feudal constitution were destroyed, and nothing but the hard- ships remained : instead of forming a national militia, composed of barons, knights and gentlemen, bound by their interest, their honour, and their oaths, to defend their king and country, the whole of this sj'-stem of tenures now tending to nothing else but a wretched means of raising money to pay an army of occasional mercenaries. In the mean time the families of all our nobihty and gentry groaned under the intolerable burdens, which (in consequence of the fiction adopted after the Conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, in addition to the scutages to which they were liable in defect of personal attendance — which however were as- (x) " Xiilliim scuUigiiim ponatur {ij) Cap. 37. in regno riostro, nisi per commune {z) Vide sup. p. 196. connidnm rcijiti noslri.^' — Cap. 12. (a) Old Ten. tit. Escuage. CHAP. 11. — OF TENURES. 203 [sessed by themselves in parlicament — they might be called upon by the king or lord paramount for aidi^, whenever his eldest son was to be knigjited, or his eldest daughter married, not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inherit- ance, by way of relic/ and primer seisin ; and, if under age, of the whole of his estate during infancy. And then, as Sir Thomas Smith very feelingly complains (/>), " when he came to his own after he was out of icards/tip, " his woods decayed, houses fallen down, stock wasted and " gone, lands let forth and ploughed to be barren," to reduce him still further, he was yet to pay half a year's profits as a fine for suing out liver// ; and also the price or value of his marriaye ; or twice that value if he refused such wife as his lord and guardian tendered him without disparagement, and married elsewhere. Add to this, the untimely and expensive honour of knigJithood, to make his poverty more completely splendid ; and when by these deductions his fortune was so shattered and ruined, that perhaps he vras obliged to sell his patrimony, he had not even that poor privilege allowed him, without paying an exorbitant fine for a licence of alienation. A slavery so complicated, and so extensive as this, called aloud for remedy, in a nation that boasted of its freedom. Palliatives were from time to time applied by successive acts of parliament, which assuaged some tem- porary grievances, till at length the humanity of King James the first consented (though the plan j)roceeded not to effect) to abolish them all, in consideration of a proper equivalent (c), — in like manner as he had formed a scheme for removing the feudal grievance of heritable jurisdictions in Scotland ; a change which at a later period was carried into execution by the statute 20 George II. c. 43 [d). {/>) Cominonw. 1. 3, c. 5. {d) Dalrymp. of Feuds, 292. By {c) 4 Inst. 202. another statute of the same year 204 1;K. II. OF KIGIITS OF rilOl'EKTY. — PT. I. TIITNGS REAL. [Kiug James's plan for the abolition of our military tenures seems to liave been nearly the same as that which was afterwards pursued in the reign of Charles the second ; only with this difference, that, by way of compensation for the loss which the crown and other lords would sus- tain, an annual fee-farm rent was to have been settled and inseparably annexed to the crown, and assured tothe inferior lords, payable out of every knight's fee, within their respective seigniories : an expedient seemingly much better than the hereditary excise, which was afterwards made the principal equivalent for these concessions. But at length the military tenures, with all their heavy ap- pendages, (having during the Usurpation been discon- tinued,) were destroyed at one blow by the statute 12 Car. II. c. 24 ; which enacts, that the court of wards and liveries, and all wardships, liveries, primer seisins, and ousterlemains, values and forfeitures of marriage, by reason of any tenure of the king or others, be totally taken away : — that all fines for alienations, tenures by homage, knight-service, and escuage, and also aids for marrying the daughter or knighting the son, and all tenures of the king in capitc, be likewise taken away (e) : — and that all sorts of tenures, held of the king or others, be turned into free and common socage, save only tenures 'in frankal- moign, copyholds, and the honorary services (without the slavish part) of grand serjeanty. A statute, which was a greater acquisition to the civil property of this kingdom (20 Geo. 2, c. 50), the tenure of which the tei'iu is used, as tliero icard-holding (equivalent to the were two kinds of ten lu-e tw frt'y^j^c; knight-service of England) was vide sup. p. 185. It is at all events abolished in Scotland. certain that the enactment was (<•) Mr. Hargrave holds this men- not intended to j^rohibit persons tion of tenures in cupile to have from holding immediately under been a mi.stake in the framers of Ww crown. Indeed, it is in this the Act; (see Co. Litt. by Harg. manner that land in fee is now 108, n. (o).) There may be some most usually held, dovibt, however, as to the sense in CHAP. II. — OF TENIRES. 20-J [than even Magna Charta itself; since tliat onlj pruned the luxuriances that had grown out of the military tenures, and thereby preserved them in vigour ; hut the statute of King Charles extirpated the whole, and demolished both root and branches. Secondly, as to Free Socage, otherwise called Freehold. This is the second kind of tenure which we proposed to consider (,/'), and into which, by the statute just men- tioned, all tenures by knight-service were converted. Socage, in its most general and extensive signification, seems to denote a tenure by any certain and determinate service. And in this sense it is by our antient writers constantly put in opposition to chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton : " if a man holds by rent iu money, without any escuage or serjeanty, id tenementum did potent socagium ; but if you add thereto any royal service, or escuage, to any the smallest amount, illud dici poterit feodum mili- tare " {g). So too the author of Fleta : " ex donationihus, serritia militaria rel magnce serjantice non contiiientihus, oritur nobis quoddam nomen generate, quod est socagium " {h). Littleton also defines it to be, where the tenant holds his tenement of the lord by any certain service, in lieu of all other services ; so that they be not services of chivalry, or knight-service (/). The service must therefore be certain, in order to denominate it socage : as to hold by fealty and 20.S. rent ; or, by homage, fealty and 20.s. rent ; or, by homage and fealty without rent ; or, by fealty and certain corporal service, as ploughing the lord's land for three days ; or by fealty only, without any other service : for all these are tenui"es in socage (/>■). (/) Vide sup. p. 188. to the etymology of the term socage, iff) L. 2, c. IG, s. 9. it is derived by Littleton, Lord (/() Ibid. s. 9. Coke, and others, from the French (i) S. 117. word soc, a ploughshare; its ser- (X-) Litt. ss. 117, lis, 110. As vices being supposed to have con- 206 BK. II. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAT, [But, as formerly shown on the authority of Bracton (/), socage is of two sorts : free-socagey where the services are not only certain but honourable ; and vinciu-socage, where the services, though certain, a^B of a baser nature. Such as hold by the former tenure are called in Grlanvil and other subsequent authors, by the name of /iberi nokemauni, or tenants in free socage {m). Of this tenure we are now to speak ; and this, both in the nature of its service, and the fruits and consequences appertaining thereto, was always by much the most free and independent species of any.] It is of a strongly feudal character indeed, being created by words of pure donation and livery of seisin, and invariably attended Avith the obligation of fealty at the least, (even where no other service was rendered,) and with all the incidents attaching to feuds in general. Yet it falls far short, upon the whole, of the severity of the teniu'e in chivalry ; and this not only as being certain in sisted formerly of those of hus- bandry only, tliongh changed in process of time to a pecuniary rent ; (see Co. Litt. by Harg. 86 a, n. ; Wright's Ten. 144.) On the other hand, this term is considered by Somner and Blackstone as origi- nating in the Saxon soc, which signified any franchise or privilege (though more especially one of jurisdiction) ; socage being distin- guished from other tenures by the great privilege of fixed aud ascer- tained services (sec 2 Bl. Com. p. 80). The opinion of Bracton, as one of the earliest authorities on the subject, would be entitled to great weight were it more decidedly expressed. "Did poterit socagiion a socco, et inde tcncntes socmanni, eo quod depiitati sunt, lit videtur, tan- tummodo ad cuUnram, et quorum cus- todia et maritagia ad propinquiores parentes jure sanguinis pcriincbant.'^ — Bract, c. 35. This loans, thougli somewhat doubtfully, towards the derivation from the j^^oug/t ; but in another part of his work he speaks of the tenure called socagium villa- num in a way that rather tends to assign to socagium the meaning of privileged tenure. ^^ Est etiam genus villenagii, ^-c. quod dicitur socagium villanum, et qiiod est villenagium sed tamen privilegiatum." As to socmanni, it may be remarked that they are frequently mentioned in Domesday Book ; and in Hallam's Mid. Ages (vol. ii. pp. 386, 481, 7th edit.) they are supposed to have been derived from the superior class of Anglo-Saxon ccorls. It is stated, however, that they were perfectly exempt from all marks of villenage, both as to persons and estates ; and they are considered as "the root of ' ' a noble plant, the free socage " tenants, or English yeomanry." (/) Vide .sup. p. 187. (w) Glanv. 1. 7, c 3. f'HAP. II. — OF TE?^rRES. 207 its services, but also as being comparatively mild in some of its fruits and consequences. This will manifestly appear by the following enumeration of them. 1. The law of inheritance is the same in soca2:e tenure as in tenure by knight-service {n). 2. [Wardship is also incident to tenure in socage ; but of a nature very different from that incident to knight- service. For if the inheritance descend to an infant under fourteen, the wardship of him does not, nor ever did, belong to the lord of the fee ; because, in this tenure no military or other personal service being required, there was never any occasion for the lord to take the profits, in order to provide a proper substitute for his infant tenant ; but his nearest relation, not being one to whom the inhe- ritance could descend, was to be his guardian in socage, and to have the custody of his land and body till he arrived at the age of fourteen (o) . At fourteen this ward- ship in socage ceases : and the heir may oust the guardian, and call him to account for the rents and profits ; for at this age the law supposes him capable of choosing a guardian for himself (7;). It was in this particular of wardship, as also in that of marriage, and in the certainty of the render or service, that the socage tenures had so much the advantage of the military ones. But as the wardship ceased at fourteen, there was this disadvantage attending it : that young heirs, being left at so tender an age to choose their own guardians, might make an impro- vident choice. Therefore, when, by 12 Car. II. c. 2-1, almost all the lands in the kingdom were turned into socage tenures, the same statute enacted that it should bo in the power of any father to appoint a guardian by deed or will, till his child should attain the age of twenty-one (q). (n) There -was anticntly, how- (o) Sec Co. Litt. by Harg. 88 b, ever, a time when socage lands n. (6). descended to all the sons ; (Glanv. {p) Litt. s. 123 ; Co. Litt. 89 a. 1. 7, c. 3 : Hale, C. L. c. 11.) (?) See Co. Litt. by Harg. 88 b, n. (15). X?08 15K. II. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. [And if no sucli appointment be made, the courts will frequently interpose, and name a guardian, to prevent an infant heir from improvidently exposing himself to ruin (r) . 3. "Marriage," or the valor niaritagii, was not in socage tenure any perquisite or advantage to the guardian, but rather the reverse. For if the guardian caused his ward to marry under the age of fourteen, he was bound to account for the value of the marriage, even though he took nothing for it (-s). For the law made guardians account, not only for what they did, but also for what (but for their own wilful default) they might, receive on the infant's behalf ; lest by some collusion the guardian should have received the value, and not brought it to account : but the statute of Charles having destroyed all values of marriages, this doctrine of course ceased with them. At fourteen years of age the ward (till the Act for preventing clan- destine marriages) might have disposed of himself in mar- riage, without any consent of his guardian (/). 4. The tenure in socage w^as subject, of common right, to aids for knighting the lord's eldest son and marrying his eldest daughter (») : and these were fixed by the sta- tute of Westm. 1 (cap. 36) at 20s. for every 20/. per annum so held ; as in knight-service. These aids, as in tenure by chivalry, were originally mere benevolences, though afterwards claimed as matter of right ; but they were all abolished by the same statute 12 Car. II. c. 24 {x). 0. Relief is due upon socage tenure, as well as upon tenure in chivalry : but the manner of taking it is very different. The relief on a knight's fee was 5/., or one quarter of the su2)posed value of the land ; but a socage relief is one year's rent or render, payable by the tenant to (r) Co. Litt. Ly Harg. 88 b, (one of the jjresent Marriage Acts,) n. (16). As to the law of guardian ■which substitutes new provisions to and ward, vide post, bk. iii. c. iv. prevent clandestine marriages. (s) Litt. 8. 1-23. (ii) Co. Litt. 91 a. (/) 26 Goo. 2, c. 33. This act (j) Vide sup. p. 204. was repealed by 1 Geo. 1, n. 76, CHAP. II. — OF TEMRES, 209 [the lord, be the same either great or small (//) ; and there- fore Bracton will not allow this to be properly a relief, but ^^ qucedam pnestatio loco relevii in recognitionem domini" [z). And the statute 28 Edw. I. c. 1, declared that a free soke- man shall give no reUof, but shall double his rent after the death of his ancestor, according to that which he hath used to pay his lord, and shall not be grieved above measure. Again, reliefs in knight-service were only payable if the heir at the death of his ancestor was of full age ; but in socage they are due even though the heir be under age, because the lord has no wardship over him {a) . The statute of Charles the second reserves the reliefs incident to socage tenures ; and therefore, wherever lands in fee simple are holden by a rent {scil. chief rent or quit rent), relief is still due of common right upon the death of a tenant ih). 6. Primer seisin was incident to the king's socage tenants in ccipitc, as well as to those by knight-service (c). But primer seisins were entirely abolished by the statute of Charles the second.] 7. The tenant in socage enjoj^ed the same right of alien- ing his lands as the tenant by knight-service [d). 8. Fines for alienation were, apparently, due for lands held in capite by socage tenure, as well as in lands held by the tenure of knight-service ; for the statutes that relate to this point, and Sir Edward Coke's comment on them, speak generally of all tenants in capite, without making any dis- tinction {e) ; but all fines for alienation of lands held in capite were taken away by the statute of Charles the second. 9. Escheat and forfeiture were equally incident to tenure (//) Litt. s. 126. {/) Litt. s. 16G. CiiAl'. 11. — {>!•' TENLKES. 2io hy will (z), — a mode of disposition wliicli, though (as abeady mentioned) partially permitted in the time of Henry the eighth, did not receive its full development till after the Eestoration (a). GavcUiind occurs as of common right in the county of Kent, almost the whole of which is (or at one time was) subject to this tenure {]>). To account for this it should he recollected, that the Kentish men obtained concessions from the Conqueror, by the effect of which they were per- mitted to retain their antient liberties. [And as it is principally here that we meet with the custom of gavel- kind, though it was and is to be found in some other parts of the kingdom (c), we may fairly conclude that this custom of descent was a part of those liberties. The dis- tinguisliing properties of this tenure are principally these : 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteen [d). 2. The estate did not escheat in case of an attainder for felony ; the maxim being "the father to the bough, the son to the plough" [e). ^. In most places where the teniu-e is gavelkind, the tenant always enjoyed the power of disposing of his lands and tenements by will (/). 4. The lands descend, not to the eldest, youngest, or any one son only, but to all the sons together {g) ; which was indeed antiently the most (z) S. 1G7. {e) Lamb. Peramb. 634. As to (a) Wright's Tenures, 172 ; vide the doctrine of escheat as affected sup. p. 163. by modem legislation, and particu- {b) As to gavelkind, see Year- larly by 33 & 34 Vict. c. 23, vide Book, 36 Hen. 6, 20 ; Consuet. post, bk. ii. pt. i. c. xii. Kantise (17 Edw. 2, st. 1, c. 16); (/) F. N. B. 198; Launder v. 32 Hen. 8, c. 29 ; 4 & 5 Vict. c. So, Brooks, Cro. Car. 561. 8. 80 ; Co. Litt. 140 a. {g) Litt. s. 210. But -where a (c) Stat. 32 Hon. 8, 0. 29 ; Kitch. gavelkind owner devises to his of Courts, 200; Co. Litt. 140a. "right heirs," the devise enures See ace. Third Keal Property Ee- to the benefit not of the heirs iu port, p. 8. gavelkind, but of the heir or heirs {d) Lamb. Pcramb. 614. As to by the law general. (Garland v. a feoffment, vide post, bk. ii. pt. i. Beverley, Law Rep., 9 Ch. D. 213; 0. xvu. and .see Scriven on Copyholds, 6th ed., by Brown, pp. 272 — 274.) 21-i ])K. 11. Ul' KIGHTS OF I'KUl'Eia'Y. — PT. I. IIIINGS REAL. [usual course of descent all over Euglaud (/i^). These, among other properties, distinguish this tenure in a most remarkahle manner : and yet it is said to he only a species of socage tenure, modified hy the custom of the country ; the lands heing holden hy suit of court and fealty, which is a service in its nature certain (/) . Accord- ingly, hy a charter of King John, Huhert, Ai-chhishop of Canterhury, was authorized to exchange the gavelkind tenures holden of the see of Canterhury into tenures hy knight- ser\'ice {h) ; and hy statute 31 Hen. VIII. c. 3, — an act for disgavelling the lands of divers lords and gentle- men in the county of Kent, — such lands are directed to he descendible for the future liJie other lands ichkh were never holden hy service of socage.'] Thirdly, as to Copyhold. This tenure sprang from the tenure of villenage, as described in its different branches hy Bracton (/ ) ; and in order to obtain a clear idea of this subject, it will be necessary to take into consideration the origin and nature of manors. [Manors are in substance as antient as the Saxon con- stitution, though perhaps differing a little, in some imma- terial circumstances, from those that exist at this day {m) ; just as we observed of feuds, that they were partly known to our ancestors, even before the Norman Conquest.] It is from the Normans, however, that we derive the parti- cular form of manors with which we are conversant at present {n) ; and, among them, a manor, manerium (o), seems to have been originally a district of ground held {h) Glanvil. 1. 7, c. 3; Hale, C. L. (&) Lord Coke (Cop. s. 31) sug-- c. 11 ; Analect. 1. 2, c. 7. gests two derivatious of this term : (i) Wright's Teniu'es, 211. a mancndo, because the owner of (k) Spelm. Cod. Vet. Leg. 3oo ; the manor usually resided there ; vide post, bk. n. pt. i. c. xvii. and from meaner, in French, to [1) Vide sup. p. 187. guide ; the tenants being under (wi) Co. Cop. ss. 2, 10. the lord's guidunee and direction, (w) Ibid. 8. 10. He gives the preference to the latter etymology. CHAP. II. — OF TENURES. 215 by a lord or great personage, who kept to liimself such, parts of it as were necessary for his own use, which were called feme dominicaks or demesne lands (being those of the dominiis manerii), and distributed the rest to freehold tenants, to be held of him in perpetuity (7>). Of the demesne lands, again, part was retained in the actual occupation of the lord, for the purposes of his family ; other portions were held in villenage (■) . Under the Saxon {p) See Co. Cop. s. 31 ; and see popularly it signified ouly wliat the by Lord Kenyon, Glover v. Lane, lord kept in his own hands, whether 3 T. K. 447 ; and Attorney- General waste or cultivated. — Co. Cop. s. 14 ; V. Parsons, 2 Tyrw. 223. and see Attorney- General v. Par- (q) ^' DoiuinicKin dicitur quod qiiis sons, 2 Tjtw. 223. habet ad mensani suam — dicitur etiam {r) 2 Bl. Com. 91; see Co. Litt. dominicum, viUenaffiumquod traditiir by Ilarg. 108 a, n. (4). It is said rillanis," &c.— Bracton, as cited that there are eighty honors in Co. Cop. s. 12. '' Est (lutein domi- England; see Com. Dig. in tit. nicum propric terra ad mensam as- Honor, where they are enume- signata, et villaiagiiim quod traditur rated. rillanis ad czeoIeudum."—'F\eta, as (s) Wright's Tenures, 215. Black- cited, ib. And Lord Coke expresses stone (vol. ii. p. 92) adds that the his assent to this doctrine, that in tenm-e may also have "somewhat strictness the demesne comprised Danish in its composition," the lands held in villenage, though 216 BK. II. OF RIGHTS OF PROPERTY. — FT. 1. THINGS REAL. [government, there were, as Sir Y/illiam Temple men- tions (/) , a sort of people in a condition of downright servitude, used and employed in the most servile works, and belonging, Loth they their children and effects, to the lord of the soil, like the rest of the cattle or stock upon it. These seem to have been those who held what was called the folkland, horn which they were removeable at the lord's pleasure. On the arrival of the Normans here, it seems not improbable that they v/ho were strangers to any other than a feudal state, might give some sparks of enfranchisement to such wretched persons as fell to their share, by admitting them as well as others, to the oath of fealty : which conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition («). This they called villenage, and the tenants villeins, either from the word vilis, or else (as Sir Edward Coke tells us) a. villa, because they lived chiefly in villages, and were employed in rustic works of the most sordid kind {x) ; resembling the Spartan helotes, to whom alone the culture of the lands was consigned ; their rugged masters, like our northern ancestors, esteeming war the only honourable employment of mankind. These villeins, belonging principally to lords of manors, were either villeins recjanlant, that is, annexed to the manor or land ; or else they were in gross, or at large, that is, annexed to the person of the lord, and transferable by deed from one owner to another (i/). They could not leave their lord without his permission ; and if they ran away, or were purloined from him, miglit be claimed and recovered by action, like beasts or other chattels. They held, indeed, small portions of land, by way of sustaining themselves and families ; but it was at the mere will of the lord, who might dispossess them whenever he pleased ; and it was upon villein services, that is, to carry out dung, to hedge (1) Introd. Hist. Eng. 59. {x) Co. Litt. 116 a. («) Wright's Tenures, 217. (y) Litt. s. 181. CHAP. II. — OF TENURES. 217 [and ditch the lord's demesnes and any other the meanest offices (;:) ; and their services were not only base, hut un- certain both as to their time and quantity (a). A villein could acquire no property, either in lands or goods ; but if he purchased either, the lord might enter upon them, oust the villein, and seize them to his o^\ti use, unless he con- trived to dispose of them again before the lord had seized them ; for the lord had then lost his opportunity {b). In many places, also, a fine was payable to the lord, if the villein presumed to marry his daughter to any one without leave from the lord (r), and, by the common law, the lord might also bring an action against the husband, for damages in thus purloining his property (c/). For the children of villeins were also in the same state of bondage with their parents ; whence they were called in Latin natici, which gave rise to the female appellation of a villein, who was called a neifc [c). In case of a marriage between a freeman and a neife, or a villein and a free- woman, the issue followed the condition of the father, being free if he was free, and villein if he was villein ; contrary herein to the maxim of the civil law, jjaiiiis Hequititv venfrcui. But no bastard could be born a villein, because, by another maxim of our law, he is nuUius filiiis ; and as he could gain nothing by inheritance, it were hard that he should lose his natural freedom by it (_/'). The law, however, protected the persons of villeins, as the king's subjects, against atrocious injuries of the lord ; for he might not kill or maim them, without being subject to indictment at the king's suit {g). Yilleins might be enfranchised by manumission, which was either express or implied : express, as where a man granted to the villein a deed of manumission (//) ; implied, (r) Litt. s. 172. {e) lb. s. 187. («) Bracton, 1. 4, tr. 1, c. 28. (/) lb. ss. 187, 188. {b) Litt. s. 177. (y) lb. ss. 189, 194 ; Co. Litt. (c) Co. Litt. 140 a. 120 b. \d) Litt. s. 202. (A) Co. Litt. 204. 218 BK. II. OF lllGHTS OF PROPEllTY. — PT. I. THINGS REAL. [as where a man bound himself in a bond to his villein for a sum of money, granted him an annuity by deed, or gave him an estate in fee, for life or years (/) ; for this was deaKng with his villein on the footing of a freeman : giving him an action against his lord, and vesting in him an ownership entirely inconsistent with his former state of bondage. So, also, if the lord brought an action against his villein, this enfranchised him (/.) ; for as the lord might have a short remedy against him, by seizing his goods (which was more than equivalent to any damages he could recover), the law, which is always ready to catch at any- thing in favour of liberty, presumed that by bringing this action he meant to set his villein on the same footing with himself, and therefore held it an implied manumis- sion. But, in case the lord indicted him for felony, it was otherwise ; for the lord could not inflict a capital punish- ment on his villein, without calling in the assistance of the law. Yilleins, by these and many other means, in process of time gained considerable ground on their lords ; and in particular strengthened the tenure of their estates to that degree, that they came to have in them an interest in many places full as good as, in others better than, their lords. For the good-nature and benevolence of many lords of manors having, time out of mind, permitted their villeins and theu' children to enjoy their possessions with- out interruption in a regular course of descent, the common law, of which custojn is the life, now gave them title to hold as against their lords ; scil., on performance of the services, to have and to hold their lands in spite of any determination of the lord's will. For, though in general they were still said to liold their estates at the will of their lord, jei it was such a will as was agreeable to the customs of the manor ; which customs were and arc preserved and (i) Co. Litt. 204 — 6. visions regarding implied uianu- {k) Co. Litt. 208 ; and in the missions ; see Justinian's lusti- Romau law there were similar pro- tiites, i. 11, 12. CHAP. II. — OF TENURES. 210 [evidenced by the rolls of tlie several manor courts in which, they are entered, or kept on foot by the constant immemorial usage of the several manors in which the lands lie. And as such tenants had nothing to show for their estates but these customs, aud admissions in pursuance of them entered on those rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants hy coi)y of court-roll, and their tenm-e itself a copy- hold (/). Thus copyhold tenures (as Coke observes), although very meanly descended, yet come of an antient house (/;/) ; for, from what has been premised, it appears that copy- holders are in truth no other but villeins (;;) ; who, by a long series of immemorial encroachments on the lord, at last established a customary right to those estates which before were held absolutely at the lord's will.] By the gradual progress of manumission also (either voluntary or constructive), the personal condition of villenage was at length everywhere commuted into freedom. And at the period of the reformation in religion, this change had already become almost complete. [For Sir Thomas Smith testifies, that in all his time (and he was secretary to Edward the sixth) he never knew any villein in gross throughout the realm ; and the few villeins regardant that were then remaining were such only as had belonged to bishops, monasteries, or other ecclesiastical corporations, in the preceding times of popery : for, he tells us, that " the " holy fathers, monks and friars had in their confessions, " and specially in their extreme and deadly sickness, con- " vinced the laity how dangerous a practice it was for one [1) r. N. B. 12. -whctlier the opinion that . copy- {)))) Co. Cop. 32. holders sprang from villeins be in) In confirmation of this doc- well founded ; but it is an opinion trine, see F. N. B. 12 C. ; Wright's that rests on the highest authority, Tenures, 224 ; 3 Reeves's Hist. and seems too firmly settled to be Eng. Law, 158, 312. In Astle v. shaken. See Scriven ou Copyholds, Grant, Doug. 725, a doubt is ex- Cth cd., by Brown, pp. 12 — 14. pressed by Lord Loughborough 220 BK. II. OF IIIGIITS OF riiOPERTY. — I'T. I. THINGS REAL. [" Christian man to hold another in bondage, so that teni- " poral men by little and little, by reason of that terror in " their consciences, were glad to manumit all their villeins. " But the said holy fathers, with the abbots and priors, " did not in like sort by theirs ; for they also had a scruple " in conscience to impoverish and despoil the church so " much as to manumit such as were bound to their " churches, or to the manors which the church had gotten, " and so kept theii- villeins still " ((>).] Even these remnants of the antient slavery, however, did not long survive, and the last traces of it have been entirely obliterated among us for at least two centuries ; the last claim of villenage which we find recorded in our courts being in the fifteenth year of king James the first (p). But the abolition of the personal condition did not involve that of the copyhold tenure, to which it had given birth ; and (as before stated) this tenure is one of those expressly reserved by the statute of Charles the second (q). In most manors, therefore, we still find that species of tenants called copyholders : whose lands, though substantially their own property, are technically part and parcel of the lord's demesnes, and are entered on the rolls of the customary court of the manor, as being held at the n-'iU of the lord accordiug to the custom. And a manor (when in its proper and perfect state) also still comprises, according to its antient constitution (r), some freehold tenants holding of the manor in perpetuit}^ (.s). We find, also, the court baron (already alluded to), a tribunal whereof {()) Commonwealth, b. 3, c. 10. (.s) Glover v. Lane, 3 T. E,. 417 a; Ip) Pigg V. Caley, Noy, 27 ; 11 Melwitcli's case, 4 Rep. 26 b. Yet Harg. St. Tr. 342. It may deserve though there should bo a failure of remark, however, that a condition freehold suitors to the court baron, closely resembling villenage ex- and consequently in strictness of isted in some localities in Scotland law an extinction of the manor, the Bo recently as the year 1799. (See jurisdiction of the customary court Memorials of his Time, by Lord (which is for the copyhold tenants) Cockburn, p. 76.) wiUnot be thereby affected. (Coke's (y) Vide sup. p. 204. Tracts, 53.) (>•) Vide sup. p. 215. CHAP. II.— OF TENURES. 221 the freeliolders are the judges, and distinct from the cus- tomary court of the copyholders, though usually held at the same time and place {f). No freehold, it is to be observed, can be now converted into copyhold ; of which the chief and most obvious reason is, that the essence of the latter tenure is immemorial cus- tom (it). But, on the otlier hand, a copyhold is capable of being turned into freehold, either by the lord's conveying to the copyholder the freehold of the particular premises, or by his releasing to him the seignorial estate and rights ; and such transmutation is called enfranchisement (,r). Copyhold, like the other tenures to which we have adverted, involves the obligation of fealty. A copyhold tenement is descendihie also, where the custom of the manor so permits, to the heir. As for the rule of descent it is the same (in the greater number of manors) witli the ordinary rule in free socage tenure : though in some it is according to the method in gavelkind, and in others again, to that in borough-English (//). But an incident almost peculiar to copyholds,— although it is occasionally met with in freehold or customary freehold lands, — is that of Jieriots {z). These, which are generally supposed to be a Danish custom {a), are a render of the best beast or other article (as the custom may be) to the lord, on the death of the tenant. If considered as a relic of villein tenure, there was originally less hardship in it, when all the goods and chattels belonged to the lord, and he might have seized them, even in the villein's lifetime ; but it is now commonly considered one of the most oppressive circumstances which attend the modern law of tenures {h). The urtrds/tip {() Co. Litt. 58 a; Co. Cop. s. 31. p. 14. See Mujjglcton v. Barnett, («) See EeveU v. JoddrcU, 2 T. R. 2 H. & N. 653. 424. (r) Third Eeal Property Rep. p. (x) 1 Walk. Cop. 36-2. It may be IG ; and see 21 & 22 Vict. c. 94, remarked here that if the cojiy- s. 7. holder convey to the lord, this is an [n) 2 Bl. C. 97. extinijuiHhmcnt of the copyhold. (/') As to heriots, see further, (//) Third Real Property Rep. post, bk. ii. pt. i. c. xxii. 222 BK. 11, OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. in copyliold also resembles tliat in socage; for the lord is not guardian (except by special custom), but tbe guardianship belongs to the next of kin of the infant to whom the copyhold cannot descend ; and he, like the guardian in socage, is accountable to his ward for the profits (c) . Moreover, copyhold tenure is, in some manors subject to relirf, of the same nature with that in socage, and used also to be liable to forfeiture and esc/icat {d) : though (on the other hand) a copyholder cannot alieue except through the medium of a surrender to the lord : and the land passes not to the alienee till the lord admits him. Fines, too, are in general payable to the lord on alienation, and there are other fines upon hereditary descent {e). [In some manors only one of these sorts of fines can be de- manded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, and some- times fixed by custom ; but, even when arbitrary, the courts, in favour of the liberty of the copyholders, have tied fines down to be reasonable in their extent ; otherwise they might amount to a disherison of the estate (/), No fine therefore is allowed to be taken upon descents and aliena- tions (unless in particular circumstances) of more than two years' improved value of the estate (g). From this instance we may judge of the favourable disposition that the law of England (which is a law of liberty) hath always shown to this species of tenants ; by removing, as far as possible, every real badge of slavery from them, however some nominal ones may continue. Moreover custom was very early suffered to get the better of the express terms upon which the tenants held their lands, by declaring, that the will of the lord was to be interpreted by the custom of the manor; and, where no custom has been suffered to grow (f) 2 Watk. Cop. 101 ; Co. Litt. (r) 1 AVatk. Cop. 28G. by Harg. 88 b, n. (13). (/) See ace. Haywarcl v. Eew, G (rf) See Doe d. Tarrant v. Hellier, H. & N. 308. 3T. R. IGl, 1G9. But see now as to {//) Astle v. Grant, Doug. 724; f orftiture and escheat propter dclic- Lord Verulam r. Howard, 7 Bing. turn tcnnitis, 33 & 3t Vict, c.2'}, s. 1. 327. CHAP. II. — OF TENURES. 223 [up to the prejudice of the lord, as in this case of arhitrary fines, tlie law itself interposes with an equitable moderation, and will not suffer the lord to extend his power so far as to disinherit the tenant.] The tenure which we have been describing is "copyhold," commonly so called, or tenure by copy of court roll at the iciU of the lord, according to the custom of the manor ; and this, as we have seen, is lineally descended from the antient tenure oi jnire villenage. In the division, however, that we formerly made of lay tenures (Ji) the term copyhold is to be understood in a larger sense ; and as importing, according to the view sanctioned by the highest autho- rities every customary tenure, that is, every tenm"e de- pending on the particular custom of a manor, as opposed to free socage or freehold [i) ; which last may now, since the abolition of knight-service, be considered as the general tenure of the countrj^ (/«•). And copyhold, in this wider aj^plieation of the term, comprises, besides the principal and common kind that we have just been de- lineating, two varieties, viz., antient demesne and customary freehold. The first of these seems to be the same tenure as described by Bracton, sometimes under the name of privileged villen- age, and sometimes of rillein-socage. This, he tells us, is such as has been held of the kings of England from the Conquest downwards ; and the tenants wherein " rillaiia facia nt servitia, sed certa et determinata^^ (J). [And from (A) Vide sup. p. 187. Calthorpe, 51, 54 ; Doe v. Hunt- (i) The stilt. 12 Car. 2, c. 24, sane- ington, 4 East, 288; Doe v. tions no other lay tenures but "//YC Llewellyn, 5 Tyrw. 899; 1 Gale, and common socage,^'' and " co})!/- 193 ; 2 C. M. & E.. 503, S. C. hold''' (vide sup. p. 204). And {k) See Wright's Ten. 138, 139 ; Blackstone remarks that all lay Anthony Lowe's case, 9 Rep. 123. tenures "are now in effect reduced As to the term freehold, vide sup. " to two species, free tenure in p. 210, n. [g), et infra, p. 231, *' common socage, and base tenure n. {i). " by copy of court roU."— 2 Bl. C. [1] L. 4, t. 1, c. 28, s. 5. Vide sup. 101. And see Co. Cop. ss. 17, 32 ; p. 187. 2'2-i: liK, II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [these circumstances we may collect, tliat what lie liere describes is no other than an exalted species of copyhold, subsisting at this day, viz., the tenure in anfient demesne ; to which — as partaking of the baseness of villenage in the nature of its services, and the freedom of socage in their certainty, — he has therefore given a name compounded out of both, and calls it villanum socaginm. Antient demesne is a tenure existing in certain manors, which, though now perhaps granted out to private sub- jects, were in the hands of the crown at the time of Edward the Confessor, or William the Conqueror ; and appear to have been so by the great survey in the Exchequer, called Domesday Book {m). The tenants in these crown manors were not all of the same order or degree. Some of them, as Britton testifies, continued for a long time pure and absolute villeins, dependent on the will of the lord (;?) : and such as have succeeded these in their tenures, now differ from common copyholders only in a few points (o). Others, again, were in a great measure enfranchised by the royal favom^ ; being only bound, in respect of their lands, to perform some of the better sort of villein services of the determinate and certain class ; as, to plough the king's lands for so many days, to supply his court with such a quantity of provisions, or other stated services ; all of which are now changed into pecuniary rents : and in considera- tion of these services they had many immunities and privi- leges granted to them (7;) ; as to try the right of their pro- perty in a peculiar court of their own, called a court of antient demesne {q), and by apeculiaT process, denominated a writ of right close (r) ; not to pay toll or taxes («) ; not (;«) F. N. B. 14, IG ; Crowther Gth cd., by Brown, pp. 33, 34. V. Oldficld, Sulk. 3C4. (7) Doe v. Roc, 2 Burr. 1046 ; («) C. 66. Alden's case, 5 Rep. 103 ; and see (0) F. N. B. 228. 3 & 4 Will. 4, c. 74, ss. 4, 5, 6. ip) 4 Inst. 269. It would seem (;) F. N. B. 11. that in antient demesne the free- (s) As to the extent of tliis im- hold may be in the tenant ; see 2 munity, see The Queen r. Ayles- Inst. 325 ; Scrivcn on Copyholds, ford, 2 Ell. & Ell. 538. CHAP. IT. OF TEXURES. 225 [to contribute to the expenses of knights of the shire ; not to be put on jmies ; and the hke (/).] Manors of antient demesne accordingly comprise, to this day, both copyholders in the proper and common sense of the term, and also such privileged tenants as just de- scribed (ii) , who are alone properly called tenants in antient demesne (x). As to these last, though their services, like those of pure villeins, were originally base, yet (as appears by the account of them just given) they were distinguished from the latter, in that their services were fixed and deter- minate ; and that they could not be compelled (like pure villeins) to relinquish their tenements at the lord's will, or to hold them against their own ; " et ideo/' says Braeton, " (Ucuntuv /iben'.'" Britton also, on account of such their freedom, calls them sokemans, and their tenure sokcmanries ; that is to say, " lands and tenements, which are not " held by knight-service, nor by grand serjeanty, nor by " petit, but by simple services ; being, as it were, lands " enfranchised by the king or his predecessors from their " antient demesne " {y). And the same name is also given them in Fleta (s) . Tenants in antient demesne, like com- mon copyholders, require admittance by the lord to perfect their title ; and they hold according to the custom of the manor, though not ad voluntatem domini {a). Custoinar// freehold (the other variety to which we re- ferred) exists in many parts of the kingdom. The evi- dences of title are to be found, as in pure or common copyhold, upon the court rolls; and here, again, the entries declare the holding to be according to the custom of the manor, though it is not said to be at the will of the lord (b) . {t) F. N.B. 14. Cop. 8. 32; but see Tliird Real («) F. N. B. 14, B. 11 M., 12 B. ; Property Rep. ubi sup. Co. Cop. 8. 32. {l>) Co. Cop. ubi sup. ; see Third {x) Third Real Property Rep. Real Property Rep. p. 20; Co, p. 13. Litt. by Harg. 52.b, n. (1). There {!/) C. 66. is also a kind of customary estate (z) L. 1, c. 8. called tenant rujlit (said to be pe- («) 2 Bl. C. 101 ; and ace. Co. culiar to the north of England), VOL. I. Q 226 BK. II. OF RIGHTS OF PROPERTY. — PT. I. TIIIXGS REAL. The customs of these manors are subject to great variety. But in general the incidents of customary freehold are similar to those of common copyhold (c) , Mention has hitherto been made of lay tenures only ; but there is another species of tenure which still subsists, as it was reserved by the statute of Charles the second ; and this is of a sjyiritual nature, and it is called the tenure in frcuilcahnoign. [Tenm-e in frankalmoign, {in libera eleemosyna, or in free alms,) is that, whereby a religious corporation, aggre- gate or sole, holdeth lands of the donor to it and its successors for ever {(I). The services which (prior to the Reformation) such corporations were bound to render for these lands were not certainly defined ; but only, in general, to pray for the souls of the donor and his heirs, dead or alive ; and therefore they did no fealty, which is incident to all other services but this (c), because this divine service was of a higher and more exalted nature {/). This was the tenure by which almost all the antient monasteries and religious houses held their lands ; and by which the paro- chial clergy-, and very many ecclesiastical and eleemosynary which falls under the general class of common cojoyhold) iu the lord ; of coi^yhold, though distingiushed (see Blackst. Law Tracts, Consid. from the common kind by many on Cop. pp. 144et seq.; Third Real of its incidents. (See Graham v. Pi-opcrty Rep. p. 20) ; but the con- Jackson, 6 Q. B. 811 ; Passingham, troversy may now be considered as app. Pitty, resj)., 17 C. B. 313.) finally settled, and the freehold is (c) As to the state of the law now deemed to be in the lord and ■with respect to the devise of cus- not in the custoraaryhold tenant tomary freeholds prior to the year (see Scriven on Coi)yholds, 6th ed., 1838, see the Third Real Property by Brown, pp. 14 — 17). See also, as Eep p. 22. Butby 7Will.4&lVict. to the right of customary tenants 0.26, 8. 3, the power of devising was to work minerals. The Duke of extended to all customary freehold. Portland v. Hill, Law Rep., 2 Eq. There has been much controversy Ca. 765. upon the question whether the free- (rf) Litt. s. 133. hold, in a customary freehold, is [e) Tb. s. 131. Tested in the tenant,or(as in the case (/) lb. s. 13.5. CHAP. II. — OF TENURES. 227 [foundations hold tliem at this day {(j) ; the nature of the service, however, being, upon the Reformation, altered and made conformable to the doctrines of the Church of Eng- land. Tenure yq. frankalmoign is an old Saxon tenure, and it continued under the Norman revolution, through the great respect that was shovv^u to religion and religious men in antient times. Which is also the reason that tenants in franlxalmolgn were discharged of all secular services, except the trinoda iiccessifas, of repairing the highways, building castles, and repelling invasions (/?) ; just as the Druids, among the antient Britons, had o>n- nium rerum unmunitatcm (/). And, even at present, this is a tenure of a natiu-e very distinct from all the others we have described, being not in the least feudal, but merely spiritual. And if the service be neglected, the law gives no remedy by distress or otherwise to the lord of whom the lands are holden, but merely a complaint to the ordinary or visitor to correct it (/.•) . In this last respect, as also in its services being not certainly defined, it materially differs from another antient holding of a spiritual nature, called tenure hij divine service : in which the tenants were obliged [g) See Third Eeal Property Rep. gift in perpetuity : but the difficulty p. 7. That Blackstone is correct is removed by the remark of Brac- in stating this as the tenui-e of the ton (ibid. c. 2), " iiihil clamare po- parochial clergy, is confirmed by ierit nisi nomine ccclesice suce, quia in the language of the assisa utrum, ccelosiis parochialihus nan Jit donatio the antient remedy of the parson pcrsoncc scd ecclcsiee.'" The inherit- for recovering his glebe, &c., in ance, according to this view, resides ■which the point of inquiry always not in the parson himself, but in was " utrum tantum tcrrcc sit libera his chui'ch. (And see Litt. s. 646.) eleemosyna pertinens ad ccclesiam ip- The tenure of the parochial clergj-, sius, an laicum feodum." — Bract. 1.4, however, will be of this kind only tr. 5, c. 1. where the grant was originally It is triie, indeed, that in the made in the antient form, to hold case of a parson the inheritance is ut in libera eleemosyna. (See Wats, said to be in abeyance, and the C. L. 373 ; Plowd. 242 ; 1 Inst, parson entitled for his life only, 94 b.) and this at first sight appears in- {Ji) Sold. Jan. 1, 42. consistent with the nature of frank- (/) Ctesar de Bell. Gall. 1. 6, c. 13. alraoign, which alwavs implies a (A) Litt. s. I3G. q2 2?.S BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [to do some special divine services in certain ; as to sing so many masses, to distribute such a sum in alms, and the like ; which, being expressly defined and prescribed, could with no kind of propriety be called free alms ; especially as for this, if unperformed, the lord might distrain, without any complaint to the visitor (/).] No donation in frankalmoigyi can now (since the statute of Quia etnptores) be made by a subject {>n) ; but the tenure is here mentioned because frankahnoigii is excepted by name in the statute of Charles the second, and it subsists in many instances at this day. Having made these observations with respect to the different kinds of tenures, it may be now proper to add, that, in proceeding further to investigate the nature and properties of corporeal hereditaments, wo shall for the present suppose them held by the ordin , tenure of free socage, that is, freehold ; and the readox :/.ay dismiss the subject of copyhold from his considerai'on, till we arrive at a later part of the treatise, when we shall have occasion to devote a separate chapter to the more particular exami- nation of property holden by that tenure i^n). (1) Litt. s. 137. in perpetuity.— Co. Litt. 94 b. (w) lb. s. 140. By this statute («) Vide post, bk. ii. pt. i. c. (18 Edw. 1, st. 1) no subject may xxn. It may be desirable to men- grant lands in perpetuity to hold tion here, that freehold and copy- of himself. From which it follows, hold tenures have by modern sta- that none can grant in frankal- tutes been placed on the same foot- moign ; for (as Littleton after- ing for many purposes, e.ff. the wards remarks) none may hold in qualification to serve on juries (6 Geo. fi'ankalmoign but of the grantor 4, c. 50, s. 1) ; the devise by tcill and his heirs, (s. 141), and the (1 Vict. c. 26) ; t/ie alienation under estate in frankalmoign is always the Settled Zand Aet, 1882, &c., &c. ( 229 ) CHAPTER III. OF FREEHOLD ESTATES OF INHERITANCE. The second point to be considered with regard to corporeal hereditaments is the nature of the estates which may be had in such of them as are of free tenure, reserving for subse- quent consideration the subject of corporeal hereditaments held in base tenure {a) . An estate in land signifies such interest as the tenant hath therein ; so that if a man grants all //is estate in Dale to A. and his heirs, everything that he can possibly grant shall pass thereby {b). It is called in Latin status : it signifying the condition or circumstance in which the owner stands with regard to his property (c). And here it is material, in the first place, to remark that some kind of actual interest or ownership is implied in the term ; for a bare ■lossibility, (such, for example, as the ex- pectation of the eldest son of succeeding, upon his father's decease, to 1:1. :• mheritance of his lands,) will not satisfy the legal ide-:;. of an estate [d). Nor will a mere 'potcer amount to an estate ; as if a man by will orders his land to be sold by his executors : for they will in such a case take (rt) Vide sup. p. 187, et post, bk. icith an intercut — such, for example, II. pt. I. c. xxn. as the possibility of B., -which \b) Co. Litt. 345 a. arises on an estate being conveyed (c) 2 Bl. Com. p. 103. to A. for hfe, and (living C. at his \d) See Jones v. Roe, 3 T. R. death) then to B. in fee. The lat- 93 ; Doe v. Tomkinson, 2 Mau. & ter kind may without impropriety Sel. 170. There are two kinds of be considered as an estate (though possibility in law ; — one a hare pos- an estate in contingency), and may sibility, such as is refen-ed to in the now, by 8 & 9 Vict. c. 106, s. 6, be text ; the other a possibility muphd disposed of by deed. 230 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. no estate or riglit or title in or to tlie land, but only a bare authority over it ((') ; and tlie same may be said of a mere revocahle licence or pcrniission (in writing or otherwise) to make a certain use of land (/). On the other hand, there are various descriptions of actual interest to which the term estate applies. The leading distinction to which estates are subject is between such as are legal and such as are equitable (g). But it is of legal estate alone (which is the original and primary estate) that we shall have occasion at present to speak {//) : and we pui^pose to consider it in a threefold view : first, with regard to the quantity of interest which the tenant has in the tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed : and, thirdly, with regard to the nunihcr and connection of the tenants. First, with regard to the quantity of interest which the tenant has in the tenement, this is measured by its dura- tion and extent. Thus, either the ownership is to subsist in the tenant during his own life, or during the life of another man ; or it is vested in the tenant and his descendants after him ; or it is circumscribed within a certain number of years, months, or days ; or, lastly, it is infinite and unlimited, being vested in the tenant and his representatives for ever. And this occasions the primary division of estates into such as are freehold, and such as are less than freehold. A freehold estate — li/>eru))i tenonentum, or frank tene- ment, as it was formerly called, — is an estate either of in- {e) Co. Litt. 265 b; Co. Litt. {g) Sanders on Uses, 8; B;ic. 113a, n. (2). Us. 77; 2 Fonbl. 2.')7. And see (/) See R. V. Mcllor, 2 East, Aljmss v. Watkins, 8 T. R. 516 ; 189 ; Wood v. Lcadbitter, 13 Mco. Hardr. 469 ; Murley v. Shcrren, 8 & W. 838; Perry v. Titzhowe, 8 Ad. & El. 651. Q. B. 757 ; Hewitt v. Lsham, 7 {h) As to the distinction betAveen Exch. 77 ; Roffeyr. Henderson, 17 legal and equitable estates, vide Q. B. 574 ; Taplin v. Florence, 10 post, chap. ix. C. B. 764. CHAP. III. — OF FREEHOLD ESTATES OF INHERITANCE. 231 heritance, or for life, in lands of fi-ee tenure (i) ; and it is material to our proper conception of it to remark, that at the common law, and prior to certain alterations in our system to be hereafter explained, an estate of this descrip- tion in hereditaments corporeal could in general be created or transferred only by the ceremony called liveri/ of seisin, attended with proper words of donation ; which ceremony consisted, as its name imports, of a solemn delivery of pos- session ; and was in fact the feudal investiture of which we spoke in the last chapter (/«•) . This method (which is still capable of being used) is called a feoffment, and the parties between whom it takes place are called the feoffor and the feoffee. By the common law, the donation with which the livery is accompanied might be merely oral ; but, by the Statute of Frauds, (29 Car. II. c. 3.) some instrument in writing, under the sig- nature of the feoffor (or of his agent by writing lawfully authorized), was made essential. It appears by our definition, that estates of freehold may be classed as being either estates of inheritance, or estates not of inheritance (/) ; and these two kinds will each be con- sidered in their order. An estate of inheritance is where the tenant is not only entitled to enjoy the land for his own life, but where, after his death without having disposed of it, it is cast by the law upon the persons who successively represent him in 2)erpett(uni in right of blood, according to a certain esta- blished order of descent, which we shall have occasion here- (i) Co. Litt. 43 b. The tonvire therefore no others arc properly itself, we may recollect, is expressed freehold. It may be observed that by the same term oi freehold ; (\dde a freehold estate may consist either sup. p. 210, n. ((/).) Blackstone's in land or in some "tenement" definition of freehold is that it is (ride sup. p. 169) other than land. " such an estate as is conveyed by (/.•) Co. Litt. 49 a. As to the livery of seisin " (2 Bl. Com. 104) ; manner of making livery, see Doe but he adds, that as estates of in- v. Taylor, 5 Bam. & Ad. 575. heritance, or for life, and no other, (/) Edward SejTnoiu-'s case, 10 are conveyed with this solemnity, Ecp. 97 b. 232 BK. II. OF RIGHTS OF FUOPERTY. — PT. I. THINGS REAL. after to explain (;;?). These persons are called his heirs, and himself their ancestor. An estate of inheritance is other^^ise called a /re (>?). [The true meaning of the word iae, feodum, is the same with that of feud or fief, and in its original sense it is taken in contradistinction to allodium (o) ; which, as we have seen, is a man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree, and the owner thereof hath ahsolutum, et directum dominium. But, feodum, or fee, is that which is held of some superior, on condition of rendering him ser\dce ; in which superior, the ultimate property of the land resides. This allodial pro- perty no subject in England has, it being a received and now undeniable principle in the law, that all the lands in England are holden mediately or immediately of the crown. The sovereign, therefore, only hath ahsolutum et directum doniinium {p) ; but all lands owned by subjects are in the nature of fiefs, whether derived to them by descent from their ancestors, or purchased for a valuable consideration ; for they cannot come to any man by either of those ways, unless accompanied with those feudal inci- dents which attended upon the first feudatories to whom the lands were originally granted. This is the primary sense and acceptation of the word fee. But, as Sir Martin Wright very justly observes, the doctrine " that all lands are holden " having been for so many ages a fixed and undeniable axiom, our modern English lawyers do very rarely use the word fee in this its primary original sense, in contradistinction to allodium or absolute property, with which they have no concern ; {»«) Co. Litt. 237 b. As to the s. 27. law of descent, vide post, bk. ii. (o) As to allodial property, vide pt. I. c. XI. sup. p. 174. («) " Fee simple " and " inherit- (p) " Fradium domini regis est ance" are used as convertible directum dominium, cujus nidlns est terms, Litt. ss. 1, 9; Flct.l.S, c. 5, author nisi Deus^ — Co. Litt. 1 b. CHAP. 111. — OF FREEllOl-D ESTATES OF IMIERITANCE. 2'6o [but generally use it to express the continuance or quantity of the estate {q). A fee, therefore, in general, signifies an estate of inheritance (;•), being the highest and most ex- tensive interest that a man can have in a feud, i.e., in land. And in no other sense than this is the king said to be seised in fee, he being the feudatory of no man (.s).] Estates of inheritance are either estates in fee simple or estates infee tail{t). I. An estate in fee simple [u) is that which a man hath to hold to him and his heirs general, that is, his heirs both lineal and collateral, male and female (./') ; and this is often called an " estate in fee," without the addition of the word "simple" {y) ; though, as already explained, a " fee " more properly signifies any estate of inheritance. Where a man claims an estate in fee simple in possession in a corporeal hereditament (~), the precise technical ex- pression is as follows : that he is " seised in his demesne as of fee" {in dominieo suo lit de feodo) ; the words in doininico, or " in his demesne," signifying that he is seised as owner of the land itself, and not merely of the seigniory {q) Wright's Tenures, 148. greatly preponderate. (/•) Litt. s. 1 ; Flet. 1. 5, c. 5, («) As to this estate, see Co. s. 27. Litt. 1 a— 18 b. (6) Co. Litt. 1 b. [x) Wright's Tenures, 147 ; Co. [t) ' ' An estate of inlicritance is Litt. 1 b. It is to be observed either fee simple or fee tail." — that we are treating at present of Edward Seymour's case, 10 Rep. natural persons only. Artificial 97 b. (And see Litt. s. 13 ; Co. persons, or corporations, of whom Litt. lb, 19 a, 27 b ; Vaughan, we shall have occasion to speak 273.) Blackstone divides inherit- hereafter, hold estates in fee simple, ances into such as ai'e (disolute to them and thch' successors. (Co. (which he considers as equivalent Litt. 8 b.) to fees simple) and such as are {)/) Litt. s. 293. Ibnitcd, of which he considers fees (c) AVhere the subject is incor- tail as forming a species. (2 Bl. poreal, or whei'e tlio estate is ex- Cora. 104.) But the authorities in pcctant on a precedent freehold, favour of the division in the text the words " i/< his cloiicstie^' are (which is the more usual one) omitted. Com. Dig. Pleader (C. 35). 234 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. or services (a) : and the words" as of fee" importing tliat lie is seised of an estate of inheritance in fee simple ; and also (in reference to the original meaning of the term fee) that he is not the absolute or allodial owner, hut holds feudally, of a superior lord (b). The quality of being always holden of a superior lord (the natiu'e of which was fully explained in the Chapter on Tenures) is incident to every estate in fee simple belonging to a subject; but the tenure is no longer (as formerly) of the person from whose immediate grant the fee is derived, but of the person to whose seigniory it has of antient time belonged. This is by the effect of the statute of Quia onptores (18 Edw. I. st. 1), which was passed to put a stop to the practice of the subinfeudation of the fee simple {c). For according to that practice, (which was antiently allowed,) a new relation of lord and tenant was, upon each successive alienation of the fee, continually created between the alienor and the alienee ; and the latter consequently held of the former, and not of the chief lord under whom the alienor himself held. But this being found prejudicial to the interests of {a) Blackstone considers tliese the land ■wldcli the feudal lord words "in his demesne," as sig- retained to his own use for susten- nifyingthat it is "his property, as tation of his household, as distin- belonguig to him and his heirs for guished from what he granted out ever." — (2 El. Com. 105.) But on services ; and that the true sense this assigns no meaning to them of seisin in demesne, is that given beyond what would belong to the in the text. (See Fleta, 1. 5, c. 5, other words with which they are s. 18, s. 26 ; Bract. 1. 4, tr. .5, c. 2, connected. Lord Coke imderstands s. 2.) As for the exclusive appro- the word <'(?t7«(?s«e, when used in this priation of the term to tangible particular connection, to signify de possessions, that is referable merely main or of the hand, because it is to the circumstance, that what the applied only to corporeal or tangi- lord applied to the use of his house- blc subjects of pi'operty. (Co. Litt. hold natiu-ally consisted of property 17 a.) But the Latin terra doml- of that description, and not of in- nicum is opposed to this derivation; corporeal and intangible subjects. for it is evidently to be traced to {h) Bl. Com. ubi .sup. dom'uiui. On the other hand, there {c) As to subinfeudation, vide is abundant authority for holding sup. pp. 174, 186. that djiiiinicnn properly signifies CHAP. III. — OF FREEHOLD ESTATES OF IXHEUITANCE. 235 the chief lords, by exposing them to the frequent loss of their escheats, wardships, and marriages, the statute in question was passed for their protection (r/) ; directing that, upon all sales or feoffments of land in fee simple, the feoffee shall hold the same, not of his immediate feoffor, but of the next lord paramount, of whom such feoffor himself held ; and by the same services (e) . Since this statute, therefore, a man who would aliene an estate in fee simple, has no longer been able to convey it to be holden of himself (/) ; and his grantee will take it to hold of the same seigniory to which the fee immediately belonged when the statute passed (g), — unless something should have since occurred to alter the tenure. Where, from the lapse of time, no badges of tenure under any subject can now be traced, the land will be considered as holden immediately as well as ultimately of the crown (/^), and by the ser^dce of mere fealty ; which is the least and lowest service the law can create (/) ; and whicli being now never exacted, has become a merely nominal obligation (Ii). But in many instances a private lord can still be shown to be entitled to the immediate seigniory ; the ultimate one, as formerly remarked, being in all cases vested in the sovereign. A fee simple is the most extensive estate of inheritance that a man can possess (/) ; it is the entire property in the land (m) : and to it is attached — as an inseparable incident (d) 2 Inst. 6C, 500. ut de Jionore, and not nt de corona. [e] lb. 505. (Wrig-ht's Tenures, 1G3 ; Taylor r. (/) It is said that the f?tat. Quia Horde, Burr. 108.) As to the dis- emptorcs did not extend to the tinction between these two tenures king's own tenants in eapite, but in capitc, vide sup. p. 185. that the like law was afterwards {{/) See Bradshaw v. Lawson, 4 declared as to them by the statute T. R. 413. .De Frcrogativa Rcrjis (17 Edw. 2, {h) Booth, 135. St. 1, c. 6), and 34 Edw. 3, c. 15. (i) Co. Litt. 98 a. (See 2 Bl. Com. 91.) It woidd (/.) Co. Litt.byHarg-. 68b, n. (5). seem, however, that the stat. Quia (/) Litt. s. 11 ; Co. Litt. IS a; emptorcs did in effect apply to the Vaug-han, 269. tenants in capltr, whei'c they held (;«) Butler's Feame, p. 13 (note); 2o'6 J5K. II. OF KIGHTS OF rKorFKTV. — PT. I. THINGS REAL. — the riglit of alienation, to the full extent of the interest which is vested in the tenant himself, or for any smaller estate {n). If he alienes to the full extent of his interest, cr, in other words, conveys away the fee simple, it follows of course that the alienee takes an estate to himself and his oicn heirs, answerable to that which the original owner had to him and liis heirs. [As a general rule, the fee simple or inheritance of lands and tenements is generally vested and resides in some person or other, though divers inferior estates may be carved out of it. As if one grants a lease for twenty- one years, or for one or two lives, the fee simple remains vested in the grantor and his heirs ; and after the deter- mination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee.] Yet sometimes the fee may be in abeyance, that is, only in remembrance, intendment, and consideration of the law ; there being no person in esse, in whom it can vest and abide ; though the law considers it as always potentially existing (o). [This may be exemplified in the case of a parson of a church, who hath only an estate therein for the term of his life, and the inheritance remains in abey- ance ip). And not only the fee, but the freehold also, may be in abeyance ; as, when a parson dies, the freehold Co. Litt. 18 a ; 2 Saund. 388 b ; to the same effect. Yet Lord Coke Machell v. Clarke, Ld. Ray. 779 ; himself afterwards remarks that 2 Inst. 336 ; Edward Seymour's the fee simple may be in perpetual case, 10 Eep. 97 b. abeyance (as in the case of a parson) (w) Litt. s. 360 ; Co. Litt. 223 a ; "without any expectation to come 1 Cr. Dig. 20. " in esse.'' (Co. Litt. 343 a.) Lit- (o) As to the doctrine of alie;/- tleton's exposition, therefore, which ance, see Co. Litt. 341 a, 342 b; is that followed in the text, seems Litt. 646, 647; Butler's Feame, to be the more correct; see Litt. p. 360, 9th ed. ; 1 Trest. Est. 503 ; s. 646. Camoy's Peerage case, 5 Bing. {p) Litt. s. 616. Lord Coke, N. C. 763; et vide sup. 227, n. (,•) Litt. s. 1 ; Wright v. Dowley, («) L. 1, t. 9, s. 17. 238 UK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. the legal words of inlieritance (f). If, however, the devise were simply to a man and "his assigns," without annexing any words of perpetuity, the devisee was, at one time, held to take only an estate for life ; for it did not appear that the devisor intended any more. A new rule of construction, however, has been now ]orovided ; for by the New Wills Act (7 Will. IV. & 1 Yict. c. 26), s. 28, it was enacted, that where any real estate shall (after the passing of that Act) be devised without words of limitation, it shall be construed to pass the whole interest of which the tes- tator had power to dispose, unless a contrary intention should appear by the will in question. Estates in fee simple are divided into three sorts (u) : — (t) Thus, too, (even before the New Wills Act,) a devisee of an indefinite estate, if he was charged personalli/ with the payment of debts or legacies, was held to take the fee ; though it was otherwise if the estate devised to him was so charged. (See Doe d. Sams v. Garlick, 14 Mee. & W. 698; Man- ning V. Taylor, Law Rep., 1 Exch. 235.) (m) This division of fees simple is given by Lord Coke as the com- mon one in his time (Co. Litt. 1 b) ; and is followed by Mr. Justice Powell, in Idle v. Cooke, (Lord Eaym. 1148,) and by the Court of King's Bench in Martin i\ Strachan (reported 5 T. E,. 107, in notis). It is to be observed, however, that the two last classes are both referred by Lord Coke to a more general head of fees simple determinabk. Thus, in Edward Seymour's case (10 Rep. 97 b) estates of inheritance are distributed with great clearness and precision, as follows: — First, they are either /ec simple or fee tail. Estates in fee simple arc either absolute (i. o. indeterminable) or de- terminahle. Those which are de- terminable are either derived out of an estate in fee simple absolute, or derived out of an estate in fee tail. The fii'st of these are created either by way of condition, or by way of limitation ; the first sort being called fees sunple conditional, the second, fees simple limited and qualijied. The fee simple derived out of an estate tail, Lord Coke at the same place proceeds to ex- emplify by the case where tenant in tail bargains and sells to "W. H. and his heirs; in such a case W. H. used to take an estate in fee simple, as long as the tenant in tail had heirs of his body, derived out of the estate taO, and which fee simple in W. H. would now be called exclusively a base fee. But at the present day, W. H. would clearly take in such a case a mere fee simple estate dui-ing the life of the tenant in tail himself, for there woidd be no bar of the issue of such tenant by the bargain and sale. (See also Walsingham's case, Plowd. 557 ; Willion v. Berkley, ibid. 241.) CHAP. III. — OV FREEHOLD ESTATES OF INHERITANCE. "2^0 1, fee siinp/c absolute ; 2, fee .simple qucdified ; 3, fee .simple conditional— Q. division which relates, it is to he ohserved, to the quality, not the quantity, of the estate; for it is laid down hy Lord Coke that in the latter respect, hoth fees qualified and fees conditional are equivalent to fees simple absolute (.r). 1. The fee simple absolute is free from all qualification, and requires no particular remark ; the two others involve considerations of some intricacy. 2. [A qualified fee is such a one as, having a qualifi- cation subjoined thereto, must be determined whenever the qualification annexed to it is at an end (y) . As, in the case of a grant to A. and his heirs, tenants of the manor of Dale ; here, whenever A. or the heirs of A. cease to be tenants of that manor, the grant is entii-ely defeated. Thus, when Henry the sixth granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of barons of Lisle ; — in this instance John Talbot had a qualified fee in that dignitj', and the instant he or his heirs quitted the seigniory of this manor, the dignity was at an end (s).] Such an estate is a fee simple, because it is limited to the heirs general, and may by possibility endure for ever ; yet, as that duration depends upon the concurrence of collateral circumstances, which qualify the donation, it is therefore not an absolute, but a qualified or (as it has occasionally been called) a base fee {a). (x) Co. Litt. 18 a. created -nrhere tenant in tail con- ( ij) As to a qualified fee simple, veys his estate by a conveyance see Lord Cardigan v. Ai'mitage, 2 barring his issue, but not the re- Barn. «& Cres. 202. luainderman, to another and his (z) Co. Litt. 27 a. heirs, and ■which Lord Coke de- (a) It is proper to observe, with scribes as a determinable fee de- respect to this use of the term base rived out of an estate tail ; and in fee, that it has also a more re- the Act for the Abolition of Fines stricted application, viz., to tliat and Recoveries, 3 & 4 Will. 4, species of qualified fee which is c. 74, its meaning is by express 240 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. 3. A conditional fee seems properly to comprise every fee simple granted upon condition (b), but the term is usually understood to refer to tliat particular species called a conditional fee at common law. [A conditional fee at common law was a fee restrained in its form of donation to some particular heirs, exclusive of others: ''donatio sfricta et coarctata ; sicut cerfis Jicere- dibits, quibusdam a succcsdone exchisis'' (c) : as to the heirs of a man''s body, hy which only his lineal descendants were admitted, in exclusion of his collateral heirs ; or, to the heirs male of his body, in exclusion both of collaterals and of lineal females also {d).'] We say restrained in the form of donation ; because, in point of legal effect, such a gift was construed by the judges of former days, as con- ferring not an estate descendible to some particular heirs, but a fee simple, though a fee simple subject to some condition [e). For they held that a gift to a man and the heirs of his body was a gift upon condition that it should revert to the donor, if the donee had no heirs of his body (/). They therefore called it a fee simple on con- dition that the donee had issue. So that, as soon as he had any issue born, his estate w^as supposed, by the per- formance in some sense of the condition, to become abso- lute {g) ; at least for these three purposes : — 1. To enable the tenant to aliene the land, and thereby to bar the interest not only of his own issue, but also of the donor in the reversion (//) . 2. To subject the tenant to forfeit his estate for treason, which till issue born he was not able to provision so confined (so far as {e) Nevil's case, 7 Rep. 34 b. that statute is concerned). (/) Stat. Be donis {\Z Edw. 1, {b) Edward Seymour's case, 10 Stat. West. Sec. c. 1) ; Willion v. Hep. 97 b. Berkley, Plowd. 241. ((•) Elet. 1. 3, 0. 3, s. 5. (r arc formed. — Spelni. 382 (n.), 9th edit. Gloss, ad verb. Feodum. {t) Theexpression/(rt'-). Tenant in tail-special is where the gift is re- strained to the heirs of the donee's body by a particular person ; as where lands and tenements are given to a man and the heirs of his bodi/, on Mart/ his now wife to be begotten ; here no issue can inherit but such special issue as is engendered between them two ; not such as the husband may have by anotlier wife : and therefore it is called special tail (r). And here we may observe that the words of inheritance (to him and his Jieirs) give him an (//) Vide sup. ji. 238, u. [k). maritagio) is given to a man on {z) Such alienation, thoug-h liis marriage with the daughter ■wrongful, did not work a /o^/ei^/or, or kinswoman of the donor, such biat, if made by certain modes of donees are tenants in special tail. conveyance, was a discontiiiiiancc, These estates are now out of use ; which deprived both the issue and but Elackstojie tells us (vol. ii. the rever.sioner of their }-t//ht of p. 115) that the word "frankmar- entrj/, and left them only to their riage" ex vi trrmiiti, not only cre- righl of action. (See Co. Litt. 328 a; ated an inheritance, but likewise 2 lust. 33.5.) limited that inheritance, supplying («) Co. Litt. by Butler, 331 a, not only words of descent, but of n. (1) ; Machell v. Clarke, Ld. procreation also. He adds, that Haym. 778 ; Salk. 618, S. C. ; Sey- such donees were liable to no ser- mour's case, 10 Rep. 97 b; Wal- vice but fealty ; for a rent reserved singham's ca.se, Plowd. 557; Good- thereon would have been held void, right V. Shilson, Buit. 1703. till the fourth degree of consan- (//) Litt. S3. 14, 15. guinity were passed between the (.) In the particular case where respective is.sucs of the donor and au estate in fraukiiiarriagc [in libero of tlic donee. (ScoLitf. ss. II), 20.) CilAl'. HI. — or FHKKllOl,!) ESTATES OF IMlEKITANfE. 2 ij estate in fee ; but tliey being heirs of his bod// this makes it a fee-tail ; and the person being also limited on whom such heirs shall be begotten, (viz. Mar// ///s present ic/fe,) this makes it a fee-tail special. [Estates in "general" and "special" tail are further diversified bj the distinction of sexes in such entails ; for both of them may either be in tail ii/'-de or in tail female. As if lands be given to a man and the //eirs male of his hod/j begotten, this is an estate in tail male general ; but if to a man and the h.Q\i& female of his body on his present wife be- gotten, this is an estate in tail female special. And in case of an entail male, the heirs female shall never inherit, nor any derived from them ; nor e converso the heirs male, in case of the gift in tail female (r/). Thus, if the donee in tail male hath a daughter who dies leaving a son, such grandson in this case cannot inherit the estate tail ; for he cannot deduce his descent wholly by heirs male {e). And as the heu- male must convey his descent wholly by males, so must the heir female wholly by females. And therefore if a man hath two estates-tail, the one in tail male, the other in tail female ; and he hath issue a daughter, which daughter hath issue a son ; this grandson can succeed to neither of the estates ; for he cannot derive his descent either wholly in the male or wholly in the female line(/). As, in a deed, the word heirs used to be necessary to create a fee, so, in fui'ther imitation of the strictness of the feudal donation, the word bod//, or some other words of procreation {g), used to be necessary to make it a fee- tail, and to ascertain to what heirs in particular the fee was limited. If therefore either the words of inheritance or the words of procreation were omitted in the grant, albeit the others were inserted, this would not make an estate-tail. As if the grant were to a man and the issue of his bod//, to a man and his seed, to a man and his ehildren id) Litt. ss. 21, 22. (/) Ibid. (e) lb. s. 24 ; Co. Litt. 25 b. («/) Beresford's case, 7 Rep. 40. 246 HK. II. OF lUGllTS OF PROPERTY. — PT. 1. THINGS REAL. [or offspring ; all these were only estates for life, for there were wanting the words of inheritance, "his heirs" (//).] So, on the other hand, a gift to a man and his heirs male or heirs female, was an estate in fee-simple, and not in fee- tail ; for there were no words to ascertain the body out of which they should issue ; which was indispensable to an estate of the latter description (/) ; and every estate in fee, which was not in tail, must of necessity have been and be fee simple {k) , as all fees consisted and consist either of one kind or the other (/). Upon such a limitation, too, as last supposed, heirs both male and female should inherit (;;?) ; for a descent in fee simple is inconsistent (by our defini- tion) with a restriction to heirs of either sex {n) . But this antient necessity of using both the word heirs, and also the word body, for the grant of an estate tail, after having obtained for centuries, has been abolished by the Convey- ancing Act, 1881 (44 & 45 Yict. c. 41), s. 51, which has enacted, that for the creation of an estate tail it shall not be necessary to use the words " heirs of the body," but it shall suffice to say " in fee tail," with or without the word male or female, as may be required. It is to be observed that in last wills and testaments a greater indulgence has always been allowed as to the manner of expounding a donation than in a conveyance inter vivos (o) ; and there- fore an estate tail may be created by a devise to a man and his seed, or to a man and his heirs male ; or by other irregular modes of expression [p), provided the words of the will be sufficient to indicate an intention to confer {h) Co. Litt. 20; Frogmorton v. (l) Vide sup. p. 233. Wharrey, 2 AV. Bla. 728 ; 3 Will. (;h) Litt. iibi sup. 125, 144, S. C. («) Vide sup. p. 233. (i) Litt. 8. 31 ; Co. Litt. 7a; (o) Vide sup. p. 237. Abraham v. Twig-g, Cro. EKz. 478; (p) 2 Bl. Com. p. 115 ; Co. Litt. Earl of Oxford's case, "W. Jones, 9 b, 27 a ; see Mellish v. Mellish, 105. A graut in such terms by the 2 B. & Cr. 520 ; Doe d. Jcarrad v. Crotoi, has been held void. — Ibid. Bannister, 7 M. & W. 298 ; Good Co. Litt. 27 a. V. Good, 7 El. & Bl. 295. {k) Co. Litt. 27 b. CHAP. 111. — OF FREEHOLD ESTATES OF INHERITANCE. 247 an inheritance, but to restrain it to the descendants of the devisee. We have seen that lands cannot (since the statute Quia empfores) be conveyed in fee simple, to be holden of the grantor ; but that the holding must be of him to whose seigniory the fee belongs {(/). It is otherwise, however, with respect to a gift in tail. For if a tenant in fee simple grants an estate tail out of it, (the reversion remaining in the donor,) the donee in tail shall hold of the donor, by fealty and such other services as may be reserved ; or if none be reserved, then by fealty and such other services as the donor himself renders to the next lord paramount (/•). But the tenure thus created between the donor and the donee in tail is described as imperfect, whereas that which subsists between the tenant in fee and the chief lord is said to hQ perfect in its kind (s). [Thus much for the nature of estates tail : the establish- ment of which family law, as it is properly styled by Pigott (^), occasioned infinite difficulties and disputes (/^). Children grew disobedient when they knew they could not be set aside : farmers were ousted of their leases made by tenants in tail ; for if such leases had been held valid, then under colour of long leases the issue might have been virtually disinherited : creditors were defrauded of their debts ; for if tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth ; innumer- able latent entails were produced to deprive purchasers of the lands they had fairly bought ; of suits in consequence of which our antient books are full ; and treasons were encom-aged ; as estates tail were not originally liable to forfeiture longer than for the tenant's life. So that they (ry) Vide sup. p. 234. 2 Ecp. 92 b. (>■) Litt. s. 19 ; Co. Litt. 23 a, («) Co. Cop. s. 31. 93 a, 143 a, 68 b, n. (5), by Harg. ; (C) Com. Eecov. 5. 2 Inst. 501, oOo ; TVillion v. Berk- [u) Chiidleigh's case, 1 Rep. ley, riowd. 237 ; Bingham's case, lol b. 248 BK. II. OF RIGHTS OF PROPERTY. — TT. I. THINGS REAL. [were justly iDranded as tlie source of new contentions and miscliiefs unknown to tlie common law, and almost ■universally considered as the common grievance of the realm (,r). But as the nobility were always fond of the statute Be donis, because it preserved their family estates from forfeiture, there was little hope of procuring a repeal of it by the legislature ; and therefore, by the connivance of an active and politic prince, a method was devised to evade it. Nearly two hundred years intervened between the making of the statute De donis and the application of cominon recoveries to this intent, in the twelfth year of Edward the fourth (y) ; but these were then openly de- clared by the judges to be a sufficient bar of an estate tail (s). For though the courts had, so long before as the reign of Edward the third, very frequently hinted their opinion that a bar might be effected upon these principles (r/), yet it never was carried into execution, until Edward the fourth — observing (in the disputes be- tween the houses of Tork and Lancaster) how little effect attainders had upon traitors protected by the sanctuary of entails — contrived {h), that Taltarum's case should be brought before the court (r) ; wherein, in consequence of the principles there laid down, it was in effect deter- mined, that a common recovery suffered by tenant in tail should convert his estate into a fee simple absolute ; and bar all persons whatever claiming the estate tail, or any estate ulterior thereto [d). What common recoveries (.r) Co. Litt. 19 b; Hunt z^. Gate- Pigott is, tluit he " broiigLt it ou ley, Moor, 156; Mary Portington's the stage." case, 10 Rep. 38. (c) Year Book, VI Edw. 4, 14, {y) A.D. 1472. 19 ; Fitzh. Abr. tit. Faux Eecov. (;) Chudleigh'scase, 1 Eep. 131 ; 20 ; Bro. Abr. ibid. 30 ; tit. Recov. Mildmay's case, 6 Rep. 40. in Value, 19; tit. Tailc, 36. See (ii) Mary Portington's case, 10 Hist. Eng. Law, by Reeves, vol. iii. Rep. 37, 38. p. 328. {b) Pigott, 8. Blackstone (vol. ii. (r/) Martin v. Strachan, .5 T. R. p. 117) says he suffered it to be 107, n. ; Willes, 449; Taylor v. brought, but the expression of Horde, 1 Burr. 11.5 ; Smith w. Clif- ■ CHAP. IIT. — OF FKEEHOLD ESTATES OF INHERITANCE. 249 [were, Lotli in tlioir nature and consequences, and why they were allowed to be a bar to the estate tail, must be reserved to a subsequent inquiry. At present it may suffice to say, that they were fictitious proceedings, intro- duced by a kind oi pia fraus^ to elude the statute Be donin ; an Act which was found so intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal ; and that these recoveries, however clan- destinely introduced, afterwards became by long use and acquiescence a most common assurance of lands ; and were looked upon as the legal mode of conveyance, by which a tenant in tail might dispose of his lands and tenements, so that no court would suffer them to be shaken or reflected on(e) . This expedient having greatly abridged estates tail with regard to their diu-ation, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitiu-e for treason. For, notwith- standing the large advances made by recoveries, in the compass of about threescore years, towards unfettering these, inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them re-settled in a similar manner to suit the convenience of families, had address enough to procure a statute to be passed (26 Henry YIII. c. V6), whereby all estates "of inheritance," under which general words estates-tail in possession were covertly included, were declared to be forfeited to the king upon any conviction of high treason. The next attack which they suffered in order of time was by the statute 32 Henry VIII. c. 28 ; whereby cer- tain leases made by tenants in tail not tending to the pre- judice of the issue, were allowed to bind the issue in tail, though not the -remainderman or reversioner (/). But they received a more violent blow, in the same session of ford, 1 T. R. 738; and see First Hen. 8, c. 20; 14 Eliz. c. 8 ; 14 Real Property Report, p. 22. Geo. 2, c. 20 ; et post, bk. ii. pt. i. {(') As to recoveries, see 11 Hen. c. xix. 7, c. 20 ; 7 Hen. 8, c. 4 ; 34 & 3o (/) Co. Litt. 45 b. 2o0 BK. IT. OF RIGHTS OF PROPERTY.— PT. T. THIXC4S REAL. [parliament, by the construction put upon tlie statute " of fines," (4 Henry YII. e. 24,) by the statute 32 Henry YIII. c. 36 ; which declared that mode of conveyance called ?ijine (which was another species of fictitious proceeding), when duly levied by tenant in tail, to be a complete bar to him and his heirs claiming under such entail. This was evi- dently agreeable to the intention of Henry the seventh, whose policy it was (before common recoveries had ob- tained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles : but as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched in his Act under covert and obscure expressions : and the judges, though willing to construe that statute as favour- ably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute De don is had expressly declared that they should not be a bar to estates-tail. But the statute of Henry the eighth, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention.] By an enactment of the succeeding jeav (33 Hen. VIII. c. 39, s. 75), estates-tail were rendered liable to be charged for payment of debts due to the king by record or special contract ; and afterwards (by 21 Jac. I. c. 19, s. 12) they were subjected to be sold for the benefit of the creditors, if the tenant became bank nipt [g). But the most extensive and effectual relaxation is that introduced by the statute 3 & 4 Will. lY. c. 74 (usually called the Act for the Abolition of Fines and Recoveries), passed in the year 1833 ; for this enables a tenant in tail, (<;) Blackstone remarks (vol. ii. without cither fine or recovery; p. 119) that an appointment by and he cites Attorney -General v, tenant in tail to a charitable use was Rye, 2 Vern. 453 ; Chan. Prec. 16. rendered, by 43 Eliz. c. 4, f^ood CHAP. III. — OF FREEHOLD ESTATES OF INHERITANCE. 251 by an ortlinaiy tleecT of conveyance, provided it be dtilij enrolled in Chancery within six months after execution, and without any resort to the indirect and operose expedient of a fine or recovery (which the statute wholly abolishes), to aliene the lauds entailed in fee-simple absolute, or for any less estate ; and thereby either in toto or 2^ro tanto to bar himself and his issue, as well as all persons having any ulterior interest therein (/'). Yet this provision is subject to an important qualification, designed for the protection of family settlements. For in these, it is usual to settle a life estate (which is a freehold interest) on the parent, prior to an estate tail limited to the children ; and the nature of a recovery, by which alone interests ulterior to such estate tail could formerly be barred, was to make the concurrence of the immediate tenant of the freehold indispensable to the validity of that proceeding. In order, therefore, to continue to the parent (or other prior taker of the life estate) a control of the same general descrip- tion, the Act provides that where, under the same settle- ment which created such estate tail, a prior estate of freehold, or for years determinable with life, shall have been conferred, — it shall not be competent for the tenant in tail to bar any estate taking effect upon the determina- tion of the estate tail, without consent of the person to whom such prior estate was given : who receives for that reason the appellation oi protector of the settlement (/). But, the object not being to restrain the power of the tenant in tail over the estate tail itself (which he could have barred, before the statute, by fine, without any other person's con- currence), his alienation, in the manner prescribed by the Act, is allowed to be effectual even without the consent of (/») 3 & 4 WiU. 4, c. 74, s. 15. (0 3 & 4 WiU. 4, c. 74, s. 22. Some few species of estates tail The estates, however, of a dowi-ess, are, however, excepted from this of a bare trustee, and of some Act. (Vide post, c. xix., where others, do not qualify for the pro- this subject is further explained.) tectorship (ss. 26, 27). 252 UK. II. OV RIGHTS OF PROPERTY. — PT. I. THIXGS REAL. the protector, so far as regards tlie barring of such tenant in tail and his issue {k). Even subser[uently to the passing of this Act, however, one of the antient and justly obnoxious immunities of the owner of an entailed estate still remained without disturbance, viz. that such estate (save only in the case of his becoming bankrupt) was not liable to his debts. But this also was removed by the statute 1 & 2 Yict. c. 110, in the year 1838 — by the effect of which a man's entailed estates are now equally liable to satisfy his judgment debts, as any other estates of which he may be possessed or in which he may have an interest (/). Finally, with reference to leases of entailed estates, we may remark that the effect of the same statute of 3 & 4 Will. IV. c. 74, above referred to, is to enable a tenant in tail in possession to make effectual leases u-'ttJiout the necessity of enrolment in Chancery, for terms not exceeding twenty-one years, if made at a rack-rent or not less than five sixth paiis of a rack-rent {m). And that still more recently, by the Settled Estates Act, 1877 (40 & 41 Vict. c. 18), it has been enacted [n), that any person entitled to the possession, or to the receipt of rents and profits under a settlement made after 1st November, 1856 (o), either for life, or for a term of years determinable with any life or lives, or for any greater estate, (which brings an estate tail within the provision,) either in his own right, or in right of his wife, may demise the same from time to time, (unless the settlement shall contain an express declaration that it shall not be lawful to make sucli demise,) for any term not exceeding twenty-one {k) 3 & 4 Will. 4, r. 74, s. 34. the 19 & 20 Vict. c. 120 ; 21 & 22 (/) 1 & 2 Vict. c. 110, s. 13. Vict. c. 77 ; 27 & 28 Vict. c. 45 ; \>n) 3 & 4 Will. 4, c. 74, ss. 15, 37 & 38 Vict. c. 33 ; and 39 & 40 40, 41. Vict. c. 30. (w) This Act repeals and consoli- (o) As to the term "settlement," dates a group of enactments on the as nsed in the Act, see 40 & 41 Vict, subject of settled estates, namely, c. 18, s. 2. CHAP. 111. — OF FREEHOLD ESTATES OF INHEIUTANCE. 25r. years, in such form and witli such restrictions as in the Act prescribed (/>). But all these last-mentioned pro- visions as regards leases by tenants in tail may be regarded as having now lost much of theu' practical efficiency and value, since the Settled Land Act, 1882 (45 & 46 Yict. c. 38), enables tenants in tail not only to lease, but also to sell the entailed lands, for any term of years or estate, provided the requisites prescribed by the last-mentioned Act are complied with ; and in these eases the deed need not even be enrolled in order to bar the tail. The Settled Land Act, 1882, is, however, of such wide application in the law of real property, as to require (and it will here- after receive) more particular treatment in this volume {g). [p) Sect. 46. In addition to this general provision, the Act contains others enabling the High Court of Justice to authoi'ize almost ant/ lease, sale, or act in respect of a settled estate which may seem ex- pedient for the interests of all parties entitled under the settle- ment, and being such as the settlor himself might have authorized. (See 40 & 41 Vict. c. 18, ss. 4, 39.) It may be convenient here to notice that by certain modern sta- tutes, facilities are also given to owners of settled estates to make permanent improvements on the same (as by the erection of a suit- able residence for themselves), and to charge a portion of the expense on those who come after them. See 27 & 28 Vict. c. 114 (Improvement of Land Act, 1864) ; 33 & 34 Vict, c. 56 (Limited Owners' Residences Act, 1870), as amended by 34 & 35 Vict. c. 84; 40 & 41 Vict. c. 31 (Limited Owners' Reservoirs and Wattr Supply Further Facilities Act, 1877); and see also the Settled Land Act, 1882 (45 & 46 Vict, c. 38). (-7) See bk. ii. pt. i. c. xxiv. 254 BK. IT. OF RIGHTS OF PROPERTY. — PT. 1. TIIING.S REAL. CHAPTER IV. OF FREEHOLD ESTATES NOT OF INHERITANCE. We are next to discourse of sucli estates of freehold as are not of inheritance, hntfcr life only {a). And of these estates for life, some are conccntional, or expressly created by the act of the parties ; others merely legal, or created hy construction and operation of law {h). We will first consider the former class, and then the different species of the latter. I. [Those estates for life may be termed conventional w^hich are expressly created by some deed or will ; and they arise when an estate is limited to a man to hold the same for the term of his own life, or for that of any other person, or for more lives than one ; in any of which cases he is styled tenant for life : only, when he holds the estate by the life of another, he is usually called tenant 2mr autre fie{c). These estates for life are, like inherit- ances, of a feudal nature : and were for some time the highest estate that any man could have in a feud ; for feuds were not, at first, hereditary. They were, accordingly, originally conferred with the same feudal solemnities, the same investiture or livery of seisin, as fees themselves (a) Vide sup. p. 230. It maybe title-deeds. (Sec AUwood r. Hcy- ■worth remarking, that the legal wood, 1 Hiu'l. & C. 745 ; Leathes v. tenant for life (and not the re- Leathes, Law Rep., 5 Ch. D. 221.) maiudcrman) is, as the general (i) Wright's Tenm-cs, 190. rule, entitled to the custody of the {(■) Litt. s. 5G. CH. IV. — OF FREEHOLD ESTATES NOT OF INHERITANCE. :i;-J'J [were ;] aud as in an estate of iulieritauce in possession, the tenant is said to be " seised in his demesne as of fee," or of " fee-tail " (r/), — so in an estate for life in possession, he is said to be " seised in his demesne as of freehold." [Estates for life may be created, not only by the express words before mentioned, but also by a general grant, without defining or limiting any specific estate. As if one by deed grants to A. B. the manor of Dale, this makes him tenant for life {e). For though, as there are no words of inheritance, or heirs, mentioned in the grant, it cannot be construed to be a fee, it shall however be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life. Also such a grant at large, or a grant for term of life generally, shall be construed to be an estate for the life of t/ic grcnitee, in case the grantor hath authority to make such a grant (/) ; for an estate for a man's own life is more beneficial and of a higher nature than for any other life : and the rule of law is, that all grants are to be taken most strongly against the grantor, unless in the case of grants by the crown {OT OF IMIFRFI A.Nti:. ~Ui were determined by effluxion of time or other lawful means during the continuance of his landlord's estate: and the succeeding owner shall he entitled to recover, (as the landlord could have done if his interest had continued,) a fair j)roportion of the rent for the period elapsed from the termination of the landlord's interest to the time of the tenant's quitting : and the succeeding owner and tenant respectively shall be entitled (as against each other) to all the benefits, and bo subject to all the terms, to which the landlord and tenant respectively would have been entitled or subject, in case the tenancy had determined in manner aforesaid at the expiration of such current year. This provision was made in favour of the lessees of life tenants ; but a previous statute had remedied an injustice, to which at common law the representatives of life tenants were on their side exposed. For the lessees of such tenants might, if they pleased, on the death of their lessors, quit the premises, and pay no rent to any body for the occupation of the land since the last quarter-day, or other day assigned for payment of rent, — a most unreasonable advantage (g). [It was accordingly provided by 11 Geo. II. c. 19, that the executors or administrators of tenant for life, on whose death any demise determined, might recover of the lessee a rateable proportion of rent, from the last day of pa^mient to the death of the lessor (//).] It has also been enacted by 4 & 5 Will. lY. c. 22, that where any demise in icriting shall determine by death either of the person making the same (though he may not have been strictly tenant for life) ; or of the life or lives on which he held (/) ; — a proportion of the rent shall, in like manner, be re- coverable from the lessee by his executors or adminis- trators, or by himself, as the case may be. And, finally, by the Apportionment Act, 1870 (3i5 & 34 Yict. c. 35), it has now been provided generally, and not merely (■) As to an exchange, vide post, infers that probably our word cnr- bk. n. pt. I. c. xvn. test/ signified an attendance by the («) As to estate by the curtesy, husband on the lord's court (or see Co. Litt. 29 a — 30 b; Men- curia), in the capacity of vassal vill's estate, 13 Rep. 23 ; 2 Saund. or tenant in respect of the wife's by Williams, 45, n. (5), 46, n. (q), land. Tenant by curtesy is said, 382, a, b; Buckworth ?'. Thirkell, however, by Littleton, to be so 3 Bos. & Pul. 652, n. called, "because this is used in no {t) Robins. Gavclk. bk. ii. c. 1; " other realm but in England onl3\" and see Co. Litt. 30 a. (Litt. s. 35.) And the manner in (it) Cap. 1, 8. 3. which the tenant is described in {x) 2 Bl. Com. p. 126, citing the old pleadings, " Toiaunt per lei Grand Coustum. c. 119, and Lin- eVEnylelerre''' (Year-Book, Trin. denbrog. LL. Alman. t. 92. It 1 Edw. 2), seems to confirm that is also said by Blackstone (citing etymology. See also Co. Litt. by ClI. IV. — OF FllEEnOI.l) ESTATES XOT OF 1^'HERITA^■CE. 2Gj [yet it is not generally apprehended to have heen a conse- quence of feudal tenure ; though some substantial feudal reasons may be given for its introduction, and some of the doctrines concerning it are of a feudal character (//). For if a woman seised of lands hath issue by her husband, and dies, the husband is the natural guardian of the child, and as such is in reason entitled to the profits of the lands, in order to maintain the child ; for which reason the heir apparent of a tenant by the curtesy, could not be in ward to the lord of the fee during the life of such tenant (z). As soon therefore as an}' child was born, and the father began to have a permanent interest in the lands, he became one of the pares ciiricp, did homage to the lord, and was called tenant by the curtesy initiate; and this estate being onco vested in him by the birth of the child, was not suffered to determine by the subsequent death of the infant. It may be proper to add that he was considered to hold not of the infant, but of the next lord of the fee {a).'] There are four requisites necessary to make a tenancy by the curtesy : marriage, seisin of the wife, issue, and death of the wife {t)) : — I. The marriage must be a legal one, and subsisting at the death ; so that if void ipso facto, or avoided by a divorce, no estate by the curtesy can in either case be claimed (c). 2. The seisin of the wife must be an actual seisin, that is, possession of the lands : not a bare right to possess, which is a seisin in Iau\ but an actual possession, which is a seisin in deed [d) ; nor may it be an estate in reversion on a freehold [e). On the Harg. 33 a, n. (.5), and the Patent (r) F. N. B. 143. Roll, of Hen. 3, there cited, which («) 2 Inst. 301 ; Paine's case, 8 speaks of this estate as the consue- Rep. 36 (a). tudo et lex Anglue. But though the [b) Co. Litt. 30 a. The requisite term may have been derived from a of "issue " does not exist in lands notion tliat the estate vras peculiar held in garelkuid. to the law of England, it is clear (<■) See Rcunington r. Cole, Noy, that the supposed peculiarity did 29. not in fact exist. {d) Co. Lift. 31 a, 29 a. (y) See Wright's Ten. 19-i. {e) 2 Bl. Com. 127. 266 BK. II. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. other hand, her estate may he either legal or equitahle (/') . 3. The issue must be born alive. [Some have had a notion that it must be heard to cry, but that is a mistake. Crying, indeed, is the strongest evidence of its being born alive : but it is not the only evidence {rj) . The issue also must be born during the life of the mother ; for if the mother dies in labour, and the C^esarean operation is performed, the husband in this case shall not be tenant by the curtesy ; because, at the instant of the mother's death, he was clearly not entitled, as having had no issue born, but the land descended to the child while yet in the mother's womb ; and the estate being once so vested, shall not afterwards be taken from it {h) . The issue must also be s.uch as is capable of inheriting the mother's estate (?) . Therefore, if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby entitled to be tenant by the curtesy ; because such issue female can never inherit the estate in tail male (Jt). The time when the issue was born is imma- terial, provided it were during the coverture ; for whether it were born before or after the wife's seisin of the lands, and whether it be living or dead at the time of the seisin, or at the time of the wife's decease, the husband shall be tenant by the curtesy (//). The husband by the birth of the child becomes, as was before observed, tenant by the curtesy initiate, and may do many acts to charge the lands [k) ; but his estate is not conHionmate till, 4. The death of the wife, which is the last requisite to make a complete tenant by the curtesy (/).] To complete our view of this species of interest, it must be added that by the 40 & 41 Yict. c. 18 (an Act passed chielly in reference to estates held under a scttlonoit), a power, though subjected to certain restrictions, is con- (/) See Watts v. Ball, 1 P. Wnia. Rep. 34. 108 ; Casborne v. Scarfo, 1 Atk. (/() Co. Litt. 29 b. 603; Moore v. Webster, Law Rep., (() Litt. s. 52. 3 Eq. Ca. 267 ; Appletoa r. Row- \k) Co. Litt. 30 a. ley, ib. 8 Eq. Ca. 139. (/) Ibid. ; see Jones v. Davies, [g) Dyer, 2'); Paino's case, 8 per cur., b II. & N. p. 779. CII. lA . — OF FREEHOLD ESTATES NOT OF INHERITANCE. 267 ferred upou tenants by the curtesy to demise for twenty- one years the Lands which they hohl under that title ; and such leases will consequently be good as against those in remainder (m) ; and this power of tenants by the curtesy has been confirmed and enlarged b}^ the Settled Land Act, 1882, hereinafter more particularly discussed. IV. Another estate for life, is the estate in dourr, that is to say, the estate which, by the common law, a woman, on the death of her husband, has, for the term of her natural life, in a portion of his lands and tenements (n). This portion amounts to the third part in value of such lands and tenements ; except the amount be otherwise by particular custom ; as in gavelkind, whereby she is entitled to a moiety; but subject, in this instance, to the condition of remaining chaste and unmarried. And by the custom of some places she is entitled to claim the whole ; and in others, again, only a quarter (o). [Dower is called in Latin by the foreign jurists doan'iini, but by Bracton and oiu' English writers dos : which among the Romans signified the marriage portion which the Avife brought to her husband ; but with us is applied to signify this kind of estate, to which the civil law, in its original state, had nothing that bore a resemblance : nor indeed is there anything in general more different than the regulation of landed property, according to the English and Roman laws. Some have ascribed the introduction of dower to the Normans, as a branch of f/icir local tenures (;>) ; though wo cannot exj)ect any feudal reason for its invention, since it was not a part of the pui'e, (m) 40 & 41 Vict. c. 18, s. 46. Stoughton v. Leigh, 1 Taunt. 402 ; But this provision does not include Ray v. Pung, 5 B. & Aid. ofil ; the principal mansion house and Moody v. King, 2 Bing. 447 ; Rex demesnes. (Ih.) But sec the v. Northweald Bassett, 4 Dow. & Settled Land Act, 1882, s. lo. Ry. 276 ; Jones r. Jones, 2 Tjtw. (m) As to dower, see Co. Litt. 531. ;50 b— 41 a ; Rowe r. Bower, 2 N. R. (o) 2 Bl. Com. 129 ; Robinson ou 1 ; Slattcr v. Slattcr, 1 Scott, 82 ; Gavelkind, bk. ii. c. 2. Colleton r. Gareb, 6 Simon, 19; {p) Wright's Ten. 192. 208 UK. IT. OF lllGHTS OF PROrKHTY. — PT. T. THINGS REAL, [primitive, simple law of feuds, but was first of all intro- duced into tbat S3'stem, (wherein it is called tn'ens, fcrfia, and dotalitium,) by the Emperor Frederick the second, who was contemporary with our King Henry the third {q). It is possible, therefore, that it might bo with us the relic of a Danish custom ; since, according to the historians of that country, dower was introduced into Denmark by Swein, the father of our Canute the Great, out of gratitude to the Danish ladies, who sold all their jewels to ransom him when taken prisoner by the Yandals (r). However this may be, the reason which our law gives for adopting it, is a very plain and sensible one : viz., for the sustenance of the wife, and the nurture and education of the younger children (.s). In treating of this estate, let us first consider u-Jio may be endowed ; secondlj^ of irhat she may be endowed ; thirdl}^, the manner liow she shall be endowed ; and fourthly, how dower may be harred, or otherwise defeated.] 1. And, first, the dowager must be the actual wife of him under -whom she claims at the time of his decease. If there have been a dissolution of the marriage (or, as it was formerly called, a divorce a rincuJo matrimonii), she shall not be endowed; for ubi nullum matrimonium, ihi nulla dos{t). But a divorce a rnensci et fhoro (or, as we should now say, a judicial separation) did not, b}^ our common law, destroy the dower, not even though decreed for adultery itself (/?). [Yet by the statute of West- [q) Craig, 1. 2, t. 22, s. 9. twelve, or to a husband under the (r) Slbd. Un. Hist, xxxii. 91. age of fourteen; provided (says (») Bract. 1. 2, c. 39, s. 1 ; Co. Blackstone, vol. ii. p. 131), she be Litt. 30 b. above nine years old at her hus- (t) Bract, ib. s. 4. But she did band's death. In Bracton's time not lose her dower merely because the age was indefinite, and dower the marriage was voidable, if there arose si uxor possit dotem proDwrcri, "was no actual divorce; (Co. Litt. et virion suslinere. (Ib. s. 3.) 33 a.) Nor by reasou of her hav- («) Co. Litt. 33 a, 33 b ; Sidney ing been married under the age of v. Sidney, 3 P. Wms. 276. On CTI. IV. — OF FRKKIIOM) ESTATES NOT OF IMiERITA^'C■E. 2G9 [minster the second (13 Edw. I.) st. 1, c. o4, if a woman voluntarily leaves (which the law calls eloping from) her hushand, and lives with an adulterer, she shall lose her dower, unless her hushand be voluntarily reconciled to her {x). By the antient law, the wife of a person attainted could not be endowed ; to the intent, says Staunforde, that if the love of a man's own life cannot restrain him from such atrocious acts, the love of his wife and children may {//) : though Britton gives it another turn, viz., that it is presumed the wife was privy to her husband's crime (~). However, the statute 1 Edw. YI. c. 12, abated the rigour of the common law in this parti- cular, and allowed the wife her dower. But a subsequent statute (o & G Edw. YI. c. 11, s. 13) revived this severity against the widows of attainted traitors, and barred them of their dower, but not the widows of attainted felons (a). 2, We are next to inquire of ir/zat a widow may be endowed. And supposing no act to have been done to defeat or abridge her rights, she is by law entitled to be endowed of all lands and tenements of which her husband was seised in fee simple or in fee tail at any time during the coverture, and of which any issue, which she might have had, might by possibility have been heir {b). There- fore, if a man seised in fee simple hath a son by his first wife, and after marries a second wife, she shall be endowed the other hand, among the antient an alien -woman, married without Goths, an adulteress was punished the royal licence, may not claim by the loss dotalitii et trientiH ex dower (Co. Litt. by Harg., 31 b) ; luiils mohilihus liri. (Stiernh. 1. 3, but as to this see now 33 & 3-1 Vict. c. 2.) c. H, s. 10 (I). (.»•) 2 Inst. 435: see Ilethoring- (A) Litt. ss. 36, 53. To some few ton V. Graham, G Bing. 135, and possessions of the husband, Low- Woodward r. Dowse, 10 C. B., ever, the right to dower does not N. S. 722. attach — as a castle built for the (//) P. C. b. 3, c. 33. defence of the realm, or a common W C. 110. without stint. (See Co. Litt. 310; {ii) It is said in our books that Gerard v. Gerard, 3 Lev. 101.) 270 1?K. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [of his lands ; for her issue might by possibility have been heir, on the death of the son by the former wife. But, if there be a donee in special tail, who holds lands to him and the heirs of his body; begotten on Jane his wife ; though Jane may be endowed of these lands, yet if Jane dies, and he marries a second wife, that second wife shall never be endowed of the lauds entailed ; for no issue that she could have could by any possibility inherit them (c). A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable {d) ; for it is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wdfe's lands : which is one reason why he shall not be tenant by the curtesy but of such lands whereof the wife, or he himself in her right, was actually seised in deed (<).] She may also lose the right to claim dower by an estate beiug settled on her at the time of marriage by way of jointure, as regulated by the stat. 27 lien. YIII. c. 10, — a subject on which some farther explanation may here be desirable. A.joititiirc strictly signifies a joint estate limited to both husband and wife (t), and it is thus defined by Sir Edward (;;) Gilb. Ten. 173. (r) Co. Litt. 32 a. (7) Co. Litt. 34 b, 3.5 a. If the («) Anne Bedingfi eld's case, 9 heir (being' under age), or his guar- Rep. 15 b. dian, assigned moie than she ought {f) See Dennis's case, Dy. 248 a ; to have, this was formerly remedied Vernon's case, 4 Rep. 3 b ; Earl of by ivrit of admcasuronent of dower. Buckinghamshire r. Druiy, 3 Bro. (See F. N. B. 148; Finch, L. 314; P. C. 492 ; Duchess of Somerset's fltat. AVestni. 2, 13 Edw. 1, c. 7.) case, Dy. 97 b. But tliis writ is now ubDli.sliud. en. IV. — OF FREEHOLD ESTATES NOT OF IMl ERITANCE. 273 Coke (^^) : — "A competent livelihood of freehold for the " wife, of lands and tenements ; to take effect presently, '* in possession or profit, after the decease of the husband ; " for the life of the wife at least." A description framed from the purview of the stat. 27 Hen. VIII. c. 10, before mentioned, commonly called the Statute of Uses, of which we shall speak fully hereafter. [At present it is sufficient to observe, that before the making of that statute the greatest part of the land of England was conveyed " to uses," the property or possession of the soil being vested in one man, and the use or profits thereof in another; whose directions, with regard to the disposition thereof, the former was in conscience and equity obliged to follow, and would be compelled by the courts to observe. Now in such a case, though a husband had the profits conveyed to his use, in absolute fee simple, yet the wife was not entitled to any dower in the lands, he not being seised thereof ; wherefore it became usual, on marriage, to settle by express deed some special estate to the use of the Jrmhand and his icife, for their tires, in joint-tenancy or jointure ; which settlement would be a provision (in lieu of dower) for the wife in case she siu'vived her husband. But at length the Statute of Uses ordained that such as had the nsc of lands should, to all intents and purposes, be reputed and taken to be absolutely seised and possessed of the soil itseK : and in consequence of such legal seisin, all wives would have become dowable of such lands as were held to the use of their husbands, and also entitled at the same time to any special lands that might be settled in jointure, had not the same statute provided that, upon the husband's making or procuring to be made such an estate in jointure to the wife before marriage, she should be for ever pre- cluded from her dower (,r). But then these four requisites must be punctually observed. — 1. The jointure must be limited to take effect immediately on the death of the (m) Co. Litt. 3G b ; see Cresswell (j) Veruon'.s case, 4 Rep. 1, 2. t\ Byron, 3 Bro. C. C. 362. \i)\.. 1. T 274 UK. II. OF KIGIITS OF PKOPERTY. — VT. 1. TlllXnS REAL. [husband. 2. It must be for tbe wife's own life at least, and not pur autre vie, or for any term of years, or other smaller estate. 3. It must be made to herself, and no other in trust for her. 4. It must be made, and must appear by the deed to be, in satisfaction of her whole dower, and not of any particular part of it {y). If the jointure be made to her afic)' marriage, she has her election after her husband's death, and may either accept it, or refuse it and betake herself to her dower at common law ; for she was not capable of consenting to it during the coverture. And if, by any fraud or accident, a jointure made before marriage, proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then, by the provisions of the same statute, have her dower 2ivo faiito at the common law (;:). There are some advantages attending tenants in dower that do not extend to jointresses ; and so riee versa, join- tresses are in some respects more privileged than tenants in dower. Tenant in dower, by the old common law, was subject to no tolls or taxes ; and hers was almost the only estate on which, Avhen derived from the king's debtor, the king could not distrain for his debt, if contracted during the coverture (a). But, on the other hand, a widow may enter at once, without any formal process, on her jointure land ; wliereas no small trouble, and a tedious method of proceeding by way of process in the courts, is necessary to compel an assignment of dower {h). So, though dower was forfeited by the treason of the husband, or by the wife's elopement and adultery, yet the title to lands settled in jointure remains, in either case, unimpeached (r).] Independently of the bar of dower by way of jointure, if tlie husband makes any provision for his wife by will or otherwise, in such a manner as clearly to indicate an inten- (y) See Tinncy /■. Tinncy, 3 («) Co. Litt. 31 a ; F. N. B. 150. Atk. 3. ' {/>) Co. Litt. 36 b. {:) See Beard r. Nntliall, 1 Vcvn. {c) lb. 37 a; Sidney r. Sidney, 428. 2 P. ^Vm^. 277. CH. IV. — OV FllKKHOLD ESTATK>; NOT OF INHERITANCE. ZtJ tion that it shall be taken in lieu of dower, she -will be barred by her acceptance, after his death, of the provision so made ; but she is allowed her option or election whether she will accejjt it or not {d) . Dower will also be barred if the husband, on acquiring his estate, took the conveyance of the land in a form pro- perly adapted to that purpose. Of these forms there were several, csi]led.coiirei/anreH to uses to bar doiver {e) ; on which it is only necessary to say that they were the contrivances of conveyancers, founded on the Statute of Uses before mentioned, intended to give the husband a clear dominion over the property he purchased free from future claim on the part of his widow : these forms being so managed as to vest in him the effective ownership, but not precisely such an estate as by the rules of law would have been subject to dower. On the other hand, if the husband neglected, on acquir- ing an estate subject to dower, to bar his widow's claim by taking . a conveyance in the proper form, the wife's right was (up to a late period of our legal history) secure from liability to be defeated by any alienation or devise which he might think fit to make of such estate — her title always remaining paramount ; and her concurrence and release of her rights by means of Sijine (that is, a fictitious suit in the court of common pleas, as will be explained hereafter) was therefore essential to a valid conveyance (/) . While dower retained its original importance, no just objection could be made to this principle ; for though it operated as a clog on the transfer of property, it was evidently essential to the full protection of the widow's right. But at the period to which we refer, that right had long sunk into comparative insignificance, owing, first, to the faciUty with which it was caj)able of being barred ; secondly, to the great increase in («^) Co.Litt.byllarg. 3Gb, u. 1; (r) Butler's Fearne, 346—349, Thompson v. Nelson, 1 Cox, 447 ; 9th ed. Ayres v. "Willis, 1 Ves. sen. 230, and (/) As to a fine, vide post, bk. ii. Bee 3 & 4 Will. 4. c. 105, ss. P, 10. pt. i. c xix. T 2 276 BK. II. OF IIIGHTS OF PROPERTY. — PT. I. THINGS REAL. modern times of personal property, out of wliich tlie hus- band might make ample provision for the wife by way of testamentary disposition, and of which, if he died intestate, she became entitled to her share ; and, lastly, to the effect of the Statute of Wills, which, by making real property devisable, empowered him to provide for her by will out of his real estate. Under these circumstances there appeared to be no sufficient reason for continuing the inconvenient restraint which the law of dower tended to impose on the husband's alienation ; and consequently by the Dower Act, {'■] & 4 Will. IV. c. 105,) it was provided, that all disposi- tions of his land, (whether absolute or partial, and whether by conveyance in his lifetime or by will,) and all debts and incumbrances to which such land might be subject, should be valid and effectual, as against his widow's right to dower {g). The same Act also increased the facilities for barring dower ; which may now be effected by a simple declaration for that purpose, introduced into the deed by which land is conveyed to a husband, or into any deed executed by him, or into his last will and testament. And it further enacted, that where the husband devises for his wife's benefit any part of his land that had been subject to her dower, she shall be thereby barred unless a contrary intention is declared by the will (//) ; though it is otherwise as to a bequest of personalty, and as to a devise of land on which her claim would not attach ; for, in the absence of a declaration to the contrary, such a bequest or devise shall not be sufficient to exclude her title as dowress (/). It is to be observed, however, that none of the provisions of this Act apply to the case of women married on or before 1st January, IS-'Jl; and that as to these the former law of dower consequently remains in its full force. [It is curious to observe the several revolutions which the doctrine of dower has undergone since its introduc- ((/) SoeLaccy v. Hill, Law Rep., (<) See Chalmers v. Storil, 2 Vos. Id Eq. Ca. 34G. & Boa. 244 ; Dickson r. Robinson, (/i) See Rowland r. Cuthbertson, .Tanob, 503. L:iW Rep., 8 Eq. fa. 4CG. Cll. 1\. — Of FKKKllOl.l) KSTAIES NOT Of IMlJiKl 1 AM. K. 'S7 [tion into England. The wife's claim seems first to have extended to a inoiet>/ of the husband's lands, but to have been forfeitable by incontinencj or a second marriage. By the famous charter of Henry the first, this condition of widowhood and chastity was only required in case the husband left any issue {k) ; and afterwards we hear no more of it. Under Henry the second, according to Grlanvil, the dower ad odinin ecclcsice was the most usual species of dower (/) ; and here, as well as in Normandy, it was binding upon the wife, if by her consented to at the time of marriage {jn). Neither, in those days of feudal rigour, was the husband allowed to endow her ad odium eccleaice "with more than the third part of the lands whereof he then was seised, though he might endow her with less ; lest by such liberal endowments the lord should be defrauded of his wardships and other feudal profits (;/). But if no specific dotation was made at the church porch, then she was endowed by the common law of the third part (which was called her dos rationahilis) of such lands and tenements as the husband was seised of at the time of the espousals, and no other ; unless he especially engaged before the priest to endow her of his future acquisitions (o) ; and, if the husband had no lands, an endowment in goods, chattels, or money, at the time of espousals, was a bar of any dower in land which he afterwards acquired (^j). In King John's ik) '^ Si moriuo viro uxor ejus re- (p) Glanv. ubi sup. When spe- manserit, et sine liber is fuerit, dotem cial endowments were made ad suam habebit ; si vero uxor cum liberis ostium ecclesice, the husband, after remanserit, dotem qiiidem habebit, affiance made, and troth plighted, du7n corpus suum legitime servave- used to declare with what specific n7." — Cart. Hen. 1, ad. 1101. lands he meant to endow his wife, Introd. to Great Charter, edit. " quod dotat cam de tali manerio cum Oxon. p. iv. pertbicntiis, &c." (Bract, ubi sup.) ; (/) Glanv. 1. C, cc. 1 and 2. and therefore in the old York ritual, {m) Gr. Coustum. c. 101. (Seld. Ux. Hebr. 1. 2, c. 27,) there («) Bract. 1. 2, c. 39, s. 6. is at this part of the matrimonial (o) Bequestosuo (Glanv. ubi sup) ; service, the following rubric : " sa- de terris acquisitis et acquircndis. cvrdos intcrroget dotem mulieris; et si (Bract, ubi sup.) terra ei in dotem deiur, tunc dicatur 278 liK. II. OF KIGHTS OF PJIOPERTV. I'T. 1. TIIIXGS KEAL. [Magna Cliarta, and the first charter of Henry the third (in the year 1216), no mention is made of any alteration of the common law, in respect of the lands subject to dower ; but in the charters of 1217 and 1224, it is parti- cularly provided, that a Avidow shall be entitled for her dower to the third part of all such lands as the husband had held in his lifetime ; though in case of a specific en- dowment of less, ad ostium ecdeske, the widow had still no power to Avaive it after her husband's death. And this continued to be law during the reigns of Henry the third and Edward the first (q). In Henry the fourth's time it was denied to be law, that a woman could be endowed of her husband's goods and chattels (r) : and, under Edward the fourth, Littleton lays it down expressly, that a woman might be endowed ad osfium cccksice with more than a third part (s) ; and should have her election, after her husband's death, to accept such dower, or refuse it and betake herself to her dower as at common law (/).] As to the existing law, the reader will have observed, from the account above given, that the right to dower, after falling by several gradations from its original conse- quence, is at length, in regard to women married after 1st Januarj^ 1834, reduced to one of the most precarious description, which the husband may bar or defeat at his psalmus iste, &c." When the wife pars rationahiUs, of his personal was endowed generally (" ?«ii quis estate; which is provided for by iLToretn siiam dotavcrit in generaU, Magna Charta, c. 26. But the re- cle omnibus terris et tenementis^^ — taining this last expression in our Bract. 1. 2, c. 39, s. 6), the hus- modern liturgy, if of any meaning band seems to have said, "with all at all, can now refer only to the my lands and tenements I thee right of maintenance, which .';hc endow ;" and then they all became acquires during covertiu-c, out of liable to her dower. When he en- her luisband's personalty. dowed her with personalty only, (y) Bract, ubi sup. ; Britton, cc. he used to say, "with all my 101, 102; Flet. 1. .5, c. 23, ss. II, 12. worldly goods, (or, as the Salisbuiy (;) P. 7 Hen. 4, 13, 14. ritual has it, ivith all my ivorlcUij (v) Litt. s. 39 ; F. N. B. l-'jO. chattel,) I thee endow ; " which en- {() Litt. s. 41. titled the wife to her thirds, or Cir. IV. — OF FREEHOLD ESTATES NOT OF IXHERITANX'E. 279 pleasui'e ; thougli if he fails to exercise that power, the widow is still in a condition to assert her title against the heir. And to this it may be added that, by 40 & 41 Yict. c. 18, s. 46, a dowress has a right to demise any unsettled estate (under certain restrictions specified in the Act, and with the exception of the principal mansion house and demesne lands) for a term not exceeding twenty-one years, and that a lease so granted will consequently be good against those in remainder, notwithstanding her death. But a dowress is not a tenant for life within the meaning of the Settled Land Act, 1882, although (as we have seen) a tenant by the curtesy is (u) ; and therefore she may not exercise the powers of a tenant for life under that Act. («) Vide sup. p. 267. 280 BK. 11. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. CHAPTER V. OF ESTATES LESS THAN FREEHOLD. Han'ixg now investigated, in some measure, the natm-e of freehold estates, we arrive at the consideration of those which are less than freehold, and to which the law consequently applies the denomination of chattels real (a). For it is to be understood that chattels (or goods and chatteh) is a term used to express any kind of property which, having regard either to the subject- matter, or the quantity of interest therein, is not free- hold [h). The appellation was originally derived from the technical Latin word catalla, which, among the Normans, primarily signified only beasts of husbandry, or, as we still call them, cattle ; but, in a secondary sense, was applicable to all moveables in general, and not only to these, but to whatever was not a fief or feud ; to which, among the Xormans, there were two requisites, a given degree of duration as to time, and immobility with regard to place (c). And it is in this latter more ex- tended and negative sense that our own law adopts the term, considering as a chattel whatever amounts not to freehold ; which, like the Norman fief, requires im- mobility in respect of the subject matter, and a given degree of dm'ation, that is, a duration for a life at least, (either absolute or determinable on some contingency,) as regards the quantity of interest or estate [d). Any estate in lands and tenements, which amounts not to freehold, is consequently a chattel ; but inasmuch as it concerns, or, according to the technical expression, savours of the (<7) Vide sup. p. 167, n. {a). {c) 2 Bl. Com. 386. ib) Co. Litt. 118 b. {(l) Vide sup. p. 230. CliAT. V. OF ESTATES LESS THAN FREEHOLD. 281 realty (c), it is denominated a chattel real, in order to distinguish it from things which liave no concern with the realty, viz., mere moveables, and the rights connected with them ; and sucli things as these are, on the other hqaid, often described as chattels ^^crso^/r// (./'). Chattels of either description are inferior, it is to be observed, in the eye of the law, to freehold ; and they form a subordinate class of propertj", the different species of which are subject, in many respects, to the same inci- dents ; so that as distinguished from estates of inheritance or for life in things real, of whatever tenure, they receive the common denomination of personal estate ; while these last are on the other hand described as real estate (g). As to the incidents by which chattels real and personal are allied, it may be remarked, that though " livery of seisin" was a ceremony without which an estate of inherit- ance or for life in corporeal hereditaments of free tenure could not in general pass at the common law^ {h), it was no more requisite in the transfer of a chattel real, than in that of a chattel personal. Moreover a chattel real belongs, on the death of the owner, to his executor or administrator, like a chattel personal, and does not descend, like a free- hold of inheritance, to his heir. So the interest in a chattel real, as in a chattel personal, may be made to commence in futiiro, which was not in general allowed, at common law, as to the freehold in a corporeal hereditament (/). Again, the tenant of a chattel real is not said to be seiseJ, like the tenant of a freehold, but to be possessed only, as if it were a chattel personal. And, lastly, we may observe, there can be no estate tail in a chattel real, any more than in a chattel personal, but only in a freehold {k). (e) Co. Litt. 118 b. c. xvn. (/) 2 Bl. Com. p. 387. («) But a freehold interest miglit {ff) lb. 386; vide sup. p. 1G7, n. be made to commence in fiituro by (A) This rule of tbe common law way of remainder; vide post, pp. is now altered by 8 & 9 Vict. c. 320, 321. 106, s. 2, as to which vide post, (/.) 2 Bl. Com. 398. 282 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. Of estates that are less than freehold, there are three sorts : I. Estates for years ; II. Estates at will ; III. Es- tates by sufferance. I. An estate for years is where a man has an interest in lands and tenements, and a possession thereof by virtue of such interest, for some fixed and determinat'e period of time (/) ; as in the case where lands are let for the term of a certain number of years, agreed upon between the lessor and the lessee {m), and the lessee enters thereon [n] ; and this amounts but to a chattel real, however long the period of time for which the lands are demised ; for, in contem- plation of law, no interest for a certain and determinate period of time, — even for 1,000 years, — is as large as an estate for life, which, as we have seen, is the lowest description of freehold (o). [Though the lease be but for half a year, or a quarter, or any less time, the lessee is respected as a tenant for years, and is styled so in some legal proceedings ; a year being the shortest term of which the law in this case takes notice (/>). And this may, not improperly, lead us into a short digression concerning the division and calculation of time by the English law. The space of a year is a determinate and well-known period, consisting commonh^ of 36'j days ; for, tliough in bissextile or leap-years it consists properly of 066, yet by the stat. 40 Ilen. III. the increasing daj^ in the leap-year, together Avitli tlie preceding day, shall be accounted for one day only. That of a montli is more ambiguous ; there (J) As to this estate, secCo. Litt. makctli a feoffincut ; the feoffee is 43 b— 54 b. he to whom it is made: the donor {m) AVe may here remark, once is one that givcth land in tail ; the for all, that the terminations donee is he who receiveth it : ho " — or" and "— ce" obtain, in that granteth a lease is denomi- law, the one an active, the other natcd the lessor ; and he to whom a passive signification : the former it is granted the lessee. — Litt. s. 57. usually denoting the doer of an (//) lb. s. 58. act, the latter him to whom it is (o) Co. Litt. 46 a. done. The feoffor is he that {ji) Litt. s. (37. CHAP. V. — OF ESTATES LESS THAN FREEHOLD. 283 [being, in common use, two ways of calculating months, either as lunar, consisting of twenty-eight days, the sup- posed revolution of the moon, thirteen of which make a year ; or as calendar months of unequal lengths, according to the Julian division in our common almanacks, com- mencing at the calends, that is to say on the first day of each month, whereof in a year there are only twelve.] By the old common law, a " month" used to be, in matters temporal, a lunar month, or twenty-eight days ; in matters ecclesiastical, a calendar month {q) : though this was a rule of the most general description, and yielded easily to ex- ception where custom or the obvious meaning of parties in the particular transaction, or any other special consideration, made it reasonable to depart from the usual construction of the term month (r) ; e. g., if money w'ere lent for three months, these should be intended calendar months, whether a bill of exchange or a promissory note timed to mature with the three months was given or not (s) ; also, in all statutes, a month means a calendar month [t) ; also, in the Orders and Rules of 1883 of the Supreme Court of Judica- ture; and generally in all judgments and orders made by the Court, the word month is to denote a calendar month {}(). [The ordinary rule, however, applies to the case of a lease ; and consequently, a lease for *' twelve months " is only for forty-eight weeks ; and a lease for six months is not a lease for half a year {x). But where the lease was for "c/ twelvemonth," in the singular number, it was held to be good for the whole year ; for herein the law recedes from its usual calculation, because the ambiguity between the tw'o methods of computation ceases, — it being generally ((/) See Lacon v. Hooper, 6 T. R. be deemed and taken to mean 226 ; Blunt v. Heslop, 3 Nev. & ' calendar ' month, unless words be Per. 553 ; Simpson v. Margitson, added showing lunar month to bo 11 Q. B. 23. intended." (?•) Davy V. Salter, 3 Salk. 346 ; (.«) Str. 446. Rex V. Cussons, 1 Sid. 186 ; Hip- ij) 13 & 14 Vict. c. 21. well r. Knight, 1 T. & Col. 401. («) Order LXIV. r. 1. A modern Act, moreover (13 & 14 (x) Consider "\A'illdnson r. C'al- Vict. 0. 21), enacts, that in all vert, 3 C. P. D. 360 : Barlow r. dcUdcs "the word 'month' shall Teal, 15 Q B. D. -103. 28-i JJK. II. 01' JtlGlllS OF rUOl'EKl'Y. PT. I. THIJJGS REAL. [understood, tliat by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year, consisting of one solar revolution (y).] In the space of a day all the twenty-fom* hours are usually reckoned {z). Therefore if I am bound to pay money on any certain day, I discharge the obligation (as the general rule) if I pay it any time before twelve o'clock at night, after wdiich the following day commences (a) . And it is also a principle (though one from which it is often necessary, for the sake of justice, to deviate) that, with a view to convenience, the law will consider the ordinary periods of time without regard to their fractional parts (b) . Thus half a year consists of 182 days, and a quarter of a year of 91 ; the remaining hours being in either case rejected (c) ; also, the fractions of a day will not usually be regarded, but for the purposes of determining priorities in the case of successive mortgagees, and especially of deeds registered in the Middlesex and Yorkshire Registries, the difference of an hour or of a minute may have to be and will be regarded ((/). But to return to estates for years. [These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or land- lords ; but, in order to encourage them to manure and cul- tivate the groimd, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession was esteemed of so little consequence, that they were rather considered as the bailiifs or servants of the lord, wlio "were to receive and account for the profits at a settled price, than as having any property of their (y) See Catesby's case, 6 Kep. {/>) See "Wright v. Mills, 4 H. & 62 a. N. 488. (=) 2 Bl. Com. p. 141 ; Co. Litt. (c) Co. Litt. 135 b ; Bishop of 135 a ; Maund's case, 7 Rep. 28 b ; Peterborough v. Catesby, Cro. Jac. Duppa t'. Mayo, 1 Saund. 287; 167; Telv. 100; Dy. 315 a. Burliridgc ('.Manners, 3 Camp. 194. (d) See Yorkshii-e Registries Act, (rt) Bl. Com. ubi sup. ; and see 1884 (47 & 48 Vict. c. 54), s. 5, 43 & 44 Vict. c. 9 (Greenwich (2), E. ; and see Clarke v. Brad- time). laugh,7Q.B.D. 151; SQ.B.D.CI. CHAP. V. — OF ESTATES LESS THAN FREEHOLD. 285 [own (c) . And therefore they were not allowed to have a freehold estate ; but theii- interest, such as it was, vested after their deaths in their representatives, who were to make up the accounts of the deceased with the lord and the other creditors, and w^ere entitled to the stock upon the farm. The lessee's estate might also, at one period of the antient law, be at any time defeated by a collusive recovery suf- fered by the tenant of the freehold, in an action brought against him for the purpose (/). So long as estates for years were thus precarious, it is no wonder that they were usually short, like our modern leases upon rack-rent ; and indeed we are told that by the antient law no leases for more than forty years were allowable : because any longer possession, especially when given witliout any livery declaring the nature and dura- tion of the estate, might tend to defeat the inheritance {g). Yet this law, if ever it existed, was soon antiquated ; for ■we may observe, in Madox's collection of antient instru- ments, some leases for years of a pretty early date which considerably exceed that period (//) ; and long terms — for three hundred years or a thousand — were certainly in use in the time of Edward the third (/), and probably of Edward the first (/,■). At all events, when by the stat. 21 Hen. YIII. c. lo, the termor (that is, he who is en- titled to the term of years) was protected against fictitious recoveries, and his interest rendered secure and permanent, long terms began to be more frequent than before ; and such were afterwards extensively introduced, being found extremely convenient for family settlements and mort- gages (/). (t) Bac. Ab. Leases. pi-ess provisions, nevertheless, for (/) Co. Litt. 46 a ; 2 Inst. 321 ; securing- this object. Flower V. Eigden, Cro. Eliz. 281 ; {h) See Madox, Formulare An- Pledgard v. Lake, ib. 718 ; Hist. glican. No. 239, fol. 140 ; ib. No. Eng. Law, by Reeves, vol. iv. p. 24o,fol. 146; ib.No.218,fol. 148,&c. 232. As to a recovery, vide post, (i) 32 Ass. pi. 6 ; Bro. Abr. t. bk. n. pt. I. c. XXI. Mordauucestor, 42; Spoliation, 6. {ff) MiiTour, c. 2, s. 27 ; Co. Litt. {/c) Stat, of Mortmain, 7 Edw. 1. 4') b, 46 a. The Conveyancing (/) See Ascough's case, 9 Kep. Ads, ISSl and 1SS2, contain ex- 13j; Brediman's cas?, 6 Rep. 57. -2SC) BK. II, OF RIGHTS OF PROPERTY. — PT. I. THIXfiS REAL. [Evei\t estate whicli must expire at a period certain and prefixed, by wliatevor words created, is an estate for years. And therefore this estate is frequently called a term, fcr~ minus, because- its duration or continuance is bounded, limited and determined ; for every such estate must have a certain beginning- and certain end(w). But id certum est, quod ccrfton rcddi potest : therefore, if a man make a lease to another, for so many years as J. S. shall name, it is a good lease for years {u) ; for though it is at present uncertain, yet, when J. S. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this estate, it begins (provided the lease be by deed) from the making or delivery of the lease (o). A lease for so many years as J. S. shall live, is (regarded as a mere term) void from the beginning : for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease (7;). And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale ; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he shall so long con- tinue parson of Dale, is good ; for there is a certain period fixed, beyond whicli it cannot last ; though it may deter- mine sooner, on the death of J. S. or his ceasing to be parson there {q) . As already observed, the word term, when applied to this description of estate, signifies the estate itself which the grant confers, and not merely the period of time spe- cified in the grant ; and therefore the term may expire during the continuance of the time : as by surrender, for- feiture and the like. For which reason, if I grant a lease to A. for the term of three years, and after the expiration of the said term to B. for six years, and A. surrenders or forfeits his lease at the end of one year, B.'s interest (/rt) Co. Litt. 45 b. Benjamin, 9 Ad. & El. 644 ; Mar- (//) Bishop of Bath' .s case, 6 Rep. shall v. Berridge, 19 Ch. Div. 233. 35 b. (;;) Co. Litt. 45 b. (o) Co. Litt. IG b ; and see Boo r. (7) Ibid. CHAP. V. — OF ESTATES LESS THAN FREEHOT.l). ".If^T [shall immediately take effect ; but if the rem"aiiider be to B. from and after the expiration of the said " three years," or from and after the expiration of the said " time," in this case B.'s interest will not commence till the time is fully elapsed, whatever may become of A.'s term (>•).] As an estate for years was not created at common law, like a freehold, by livery of seisin, so the tenant, in proper technical language, is not said to be seised, but to he pos- sessed. Neither for the creation of this estate is it proper to limit it to a man and his "heirs," as in the case of a freehold of inheritance. The correct limitation is to a man and to his " executors and administrators;" though it is sufficient if it be granted to himself only, without mention of his personal representatives ; for in these, on his death, the law will vest it without any special words of limitation. Again, as it required no livery of seisin, so at common law this estate, for whatever length of duration, might bo constituted by mere agreement, verbal or ^ATitten, if fol- lowed up by the entry of the lessee. But by the Statute of Frauds, (29 Car. II. c. 3,) it was enacted that no lease for more than three years, or at a lower rent than two- thirds of the improved value of the thing demised, should be effectual, unless put into writing and signed by the party demising or his agent thereimto lawfully authorized by writing (.<.•). And by 8 & 9 Yict. c. 106, s. 3, it has been further provided, that a lease required to be in writing, (if made after the 1st of October, 1845,) shall be void at law unless not only reduced to writing, but also made bf/ deed (/). It is also to be remarked, that the bare demise by the common law, as contradistinguished fi'om a bargain and sale under the Statute of Uses, does not in itself vest a (r) Ibid. El. 856. (s) 29 Car. 2, o. 3, ss. 1, 2. See {() As to the effect of this enact- Edge V. Strafford, 1 Tyrw. 295 ; mcnt, vide post, c. xvii. Lord Bolton r. Tomlin, 5 Ad. &: 288 liK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. complete estate for term of years, in the lessee : it only gives him a right of entry on the tenement ; which right is called his " interest in the term," or infercsse termini. And when he has actually so entered, the estate is then, and not hefore, completely vested in him. However, the inferesse termini is so far in the natui-e of an estate, that, even hefore entry, the lessee may grant his interest over to another ; though, on the other hand, a lessee is not hefore entry in a condition to maintain an action of trespass for an injmy to the land (u). [Tenant for term of years hath incident to and insepa- rahle from his estate, unless hy special agreement, the same estovers which we formerly ohserved that tenant for life was entitled to (.r) ; that is to say, house-hote, fire-hote, plough-bote, hay-bote (y) , and the like ; and the doctrine of uriste, also, applies generally to tenants for years (s).] With regard to emblements, that is, the profits of lands sowed, a tenant for years is entitled to them in some cases, but not in all. For where his term dejjends upon a certainty, as if he holds from Midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before Midsummer, the landlord shall have it, in the absence of any special contract or custom to the contrary ; for the tenant knew the expiration of his term, and therefore it was his own folly to sow that of which he never could reap the profits {a). But where the lease for years depends upon an uncertainty, as upon the death of the lessor, being himself only tenant for life, or being a husband seised in right of his wife, or if the term of years be determinable upon a life or lives (b) : in these (?<) 2 Bl. Com. 144 ; Plowd. 198. et post, bk. v. c. vni. Some doubt See Doe v. Walker, 5 Barn. & has been entertained as to the lia- Cress. Ill ; Co. X/itt. 338 a, 270 a; bility of tenant for j-ears (in the Neal V. Mackenzie, 1 Mee. & Wels. absence of express stijiulatiou) for 747 ; Williams v. Bosanquet, 1 permissive waste ; but see YcUowly Brod. & Bing. 248 ; Edge v. Straf- v. Gower, 11 Exch. pp. 273, 274. ford, 1 Tyrw. 295. {a) 2 Bl. Com. p. 145; Litt. s. 63. [x) Vide sup. p. 256. (i) But it may be remarked that (//) Co. Litt. 41b. a lease for years by a tenant for (r) .\s to waste, vide sup. p. '2">7, lifo, or a husband seised in right CHAP. y. — OF ESTATES LESS THAN EREEllOLD. 289 and similar cases, the estate for years not being certaiul}- to expii-e at a time foreknown, but by the act of Grod, — the tenant for years, or his representatives, shall have the emblements in the same manner that a tenant for life, or his representatives, are entitled thereto (c). But it is otherwise if the term determine by the act of the party himself ; as if he does anything that amounts to a for- feiture : in which case the emblements shall go to the lessor, and not to the lessee, who hath determined his estate by his own default (d). The operation of the common law right to emblements, however, is now much more limited than it once w^as, having ceased (as we have seen), by the effect of 14 & 10 Vict. c. 25, to apply to such tenants as hold at a rack rent under a landlord entitled for life or any other uncertain interest, and whose lease or tenancy determines by the death of their landlord, or by the cesser of his estate ; and a pro- tection of a different kind — that is to say, a continuing of their holding till the end of the current year — being now provided for tenants so circumstanced {e). The tenancy "from year to year," or " by the year" (a very common species of the estate for years), may be created, in the first place, by the express agreement of the parties (/) ; and this (provided the rent reserved be two-thirds at the least of the annual value of that which is demised) may be either verbal or in writing ; but if the of his wife, is not in a/l cases noAV (c) Vide sup. p. 260. subject to uncertainty. For by (/) So also the tenancy may be 40 & 41 Vict. c. 18, s. 46, such for a less period than a year, as persons may now, under such cir- from "month to month," or "week cumstances as therein mentioned, to week," and the like, according make effectual leases for any tei-m to the agreement of the parties, not exceeding twenty-one years ; Such tenancies, also, can only be and larger powers to the same effect determined by reasonable notice ; are contained in the Settled Land but what notice is reasonable in Act, 1882. Vide sup. pp. 258, 2GG, such cases does not appear to have 267, 279. been expressly determined. (See (c) 2 BJ. Com. p. 115. Jones r. MilLs, 10 C. B., N. S. {(l) Co. Litt. 00 b. 800.) vol,. 1. II 290 BK. II. OF KIOIITS OF PROPERTY. — PT. I. THINGS REAL. rent be under that amount, then it must be by deed (g) . It may also be created, secondly, by construction of law {g). Thus, if a man demise premises to another at a yearly rent, no length of time being expressed, the law will construe this as a demise from year to year (//) . So the law will always imply a tenancy from year to year where there is an occupation at an annual rent, and there is no evidence that the occupier's estate is of a different description (/). And if a man was let into possession under a demise not under seal, for a term of more than three years, though such a demise would not (as we have seen) pass any legal interest in the premises for the term specified (/.•), yet the lessee was considered as holding from year to year, and on such of the terms of the agreement as were consistent with that tenancy (/) ; but, at the present day, such a demise (being good in equity as an agreement to demise) confers an equitable interest in the term {m), and not merely a legal interest from year to year. It is to be observed that whei^e a tenancy "by the year" or "from year to year" is once created it cannot, on either side, be put an end to without half a year's notice to quit from one party to the other, such notice expiring with the current year of the tenancy [n) ; though if the tenancy commenced at one of the usual quarterly feast days, the half year may be computed from one of such feast days to another — as from Midsummer to Christmas — whether there be 182 days between them or not (o). (y) Vide sup. p. 287. (») See Timmins v. Eawlinson, (A) See Doc c. Donavan, 1 Tauut. 3 Burr. 1603; Right v. Darby, 1 555 ; Richardson v. Langridge, i T. R. 159; Doe v. Smith, 5 Ad. «& Taunt. 128 ; Wilkinson v. Hall, 3 El. 351 ; Doe r. Stanion, 1 Mee. & Bing. N. C. 508. Wds. C9I. Blackstouc (vol. ii. p. (j) See Doe d. Lord v. Crago, G 147) remarks that this kind of lease C. B. 90. requiring half a year's notice to (/•) Vide sup. p. 287. deteruiiuc it, was in use so long ago (/) See Lee v. Smith, 9 Exch. as the reign of Henry the eighth. 662 ; Tress v. Savage, 4 Ell. & BL (o) Doe v. "Watkins, 7 East, 551 ; 36, 42. Roc r. Doe, 6 Bing. 574. It may («') AV'al-li r. Lonsdale, 21 Ch. be ' here I'emarked that in farm D. 9. leases coming Avithin the Agricul- CHAP. V. — OF ESTATES LESS TIIAX FREEHOLD. 291 It will follow from what has been above stated that a lease " from year to year " will necessarily confer an estate for one year certain, at the outset (^>) ; and if in that or any succeeding year of the tenancy, more than half a year shoidd elapse without a notice to quit being given by either of the parties, another year certain is thereby constantly added to that which is in progress {/j). Upon the same principle, if the lease be "for a year, and so from year to year," it will enure as a demise for iico years certain, at the outset ; for at the expiration of the first there is a continuation of the tenancy, which cannot be determined by a notice to quit at an earlier period than the expiration of the second year (r). But in other re- spects the law of duration is the same as in the case first supposed. It is further to be remarked, that the estate from year to year, when once constituted, does not deter- mine by an assignment of the interest of either of the parties, or by their death : but the tenancy will continue to exist between one of the parties and the assigns or representatives of the other ; or between the assigns or representatives of both parties, (as the case may be,) until duly determined by the usual notice to quit (s). To which it may be added (with respect to waste) that in the case of a yearly tenancy, where the demise comprises a house, the tenant seems bound to keep it in Aveather-tight tural Holdings Act, 1883, re-en- [q) As to the manner of proving acting a similar proAdsion in the a notice to quit in wi-iting, see Doe Agricultural Holdings Act, 1875, v. Somerton, 7 Q. B. 58 ; Stapylton a yearns notice, expiring with the v. Clough, 2 Ell. & El. 983. As current year of the tenancy, is now to the sufficiency of a notice to made necessary in lieu of the old quit as given in particular cases, half-year's notice (38 & 39 Vict. see Doe d. Lyster v. Gold win, c. 92, B. 51 ; 46 & 47 Vict. c. 61, 2 Q. B. 143 ; Doe d. Bailey i'. s. 33). And see Wilkinson V. Cal- Foster, 3 C.B. 315 ; Hogg i'. Brooks, vert, 3 C. P. D. 360 ; Barlow v. 15 Q. B. D. 256. Teal, 15 Q. B. D. 403. (;•) Dennf.Cartwright,4East, 32. {p) See Doe d. Hogg v. Taylor, (.v) See Maddon v. White, 2 T. 1 Jul-. 960; Doe d. Cornwall r. R. 159; Doe i\ Porter, 3 T. R. 13; Matthews, U C B. r,;.'). P>iu.kwnrth v. Simpson. 5 Tyr. 354. r 2 292 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. condition, and consequently to be answerable for sucli per- missive waste as may arise by his neglect to do so {f). II. The second species of estates not freehold, are estates of uiU {>(). An estate at will, is where lands and tenements are let by one man to another to have and to hold at the will of the lessor, and the tenant by force of this lease obtains possession (.r). It may be constituted by written or verbal agreement without further ceremony, if followed by entry ; and may in some cases arise by mere construction of law. [Tenant at will hath no certain indefeasible estate ; nothing that can be assigned by him to any other : because the lessor may determine his will, and put him out whenever he pleases. But every estate at will, is at the will of both parties, landlord and tenant ; so that either of them may determine his will, and quit his connexion with the other, at his own pleasure (//) . Yet this must be understood with some restriction. For, if the tenant at will sows his land, and the landlord, before the corn is ripe or before it is reaped, puts him out : yet the tenant shall have the emblements ; and free ingress, egress, and regress to cut and carry them away (~). And this for the same reason iipon which all tlie cases of emble- ments turn, viz. the point of uncertainty, since the tenant could not possibly know when his landlord would deter- mine his will, and therefore could make no provision against it ; and having sown the land upon a reasonable presumption, tlie law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will ; for in this case the landlord shall have the profits of the land (^/).] The liability of a tenant at will, in regard to waste of the voluntary kind, is similar to that of tenant for years {b) ; (0 See 2 Esp. N. C. 590 ; Au- (//) Co. Litt. 5y a— 57 b. worth r. JohnEon, 5 Car. & P. 241 ; {z) lb. 5C a. YcUowly V. Gower, II Exch. 274. («) lb. 55 b. (m) As to an estate at will, s^e (i) lb. 57. Vide sup. pp. 257, Co. Litt. 55 a- 57 b. 28S. (.'•) Litt. s. r,s. VllW. \. — OF ESTATES l.KSS Til AX 11{1:F,1 lOl.l). 2U'4 but he is understood to be not liable for waste merely per- missive (c). [What act does, or does not, amount to a determination of the will on either side, has formerly been matter of great debate in our coiu-ts. But it is now settled, that not only the express determination of the lessor's will (as by notice given to the lessee that he shall hold no longer), but also the exertion of any act of ownership by the lessor, without the lessee's consent, puts an end to the estate at will {(/) ; as, for example, the landlord's entering upon the land and cutting timber, or carrying away stone (f), or taking a distress for rent and impounding it on the pre- mises (./'). And the same consequence will follow if the lessee should commit waste (rj), or do any act of desertion, such as assigning the estate, which is inconsistent with his tenure. Also, which is instnr omnium, should either the lessor or the lessee die or be outlawed (//). The law, however, is careful that no sudden determi- nation of the will by one party, shall tend to the manifest and unforeseen prejudice of the other. This appears in the rule as to emblements before mentioned ; and, by parity of reason, the lessee, after the determination of the lessor's will, shall have reasonable ingress and egress to fetch away his goods and utensils (/). And if rent be payable quarterly or half-yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half-year (/.•). Moreover, upon the same principle, courts of law have leaned as much as possible against construing demises, where no certain term is mentioned, to be ten- ancies at will (/) ; but have rather held them to be feiiaiicics (c) See Harnett v. Miiitlan.l, 16 Co. Litt. 57 b, G2 b. Mee. & W. 257. (*) Litt. s. (J9. {(l) See Co. Litt. o7; Ilcnclmian (A) Lciglitou r. Theecl, 2 Salk. V. lies, 1 Ventr. 2-18. 41i ; Kighly v. Bulkly, 1 Sid. 339. (e) See Co. Litt. iibi sup.; Turner (/) But a demise, wherein the iu- V. Doe d. Bennett, 9 M. & W. 6i3. tontion of the parties is evidently (/) Co. Litt. 57 b. to create a tenancy by will, is still {(/) lb. 57 a. so construed by the com-ts. (See (/i) Olani's case, 5 Rep. UG b ; Doe v. Cox, 11 Q. B. 122.) 294 UK. II. OF RIGHTS OV IMIOPKHTV. — PT. 1. THINGS HEAL. [_fro))i year to year >iO Jon (j an both parties please — a species of estate wliicli we liave already noticed.] III. An estate at suferanee is where one comes into possession under a lawful demise, and, after sucli demise is ended, nevertheless continues the possession {ui) . [As if a man takes a lease for a year, and, after the year is ex- pired, continues to hold the premises, without any fresh lease from the owner of the estate. Or, if a man maketh a lease at will, and die, the estate at will is thereby deter- mined ; but if the tenant continueth possession, he is tenant at sufferance {n). But no man can be tenant at sufferance under the king, to whom no laches, or neglect, in not enter- ing and ousting the tenant, is ever imputed by the law ; but his tenant, so holding over, is considered as an absolute intruder (o). And in the case of a subject, this estate may be destroyed v/henever the true owner shall make an actual entry on the lands, and oust the tenant {p) ; but, before entry, he cannot maintain an action of trespass against him, as he might against a stranger {q) ; and the reason is, because the tenant being once in by a lawful title, the law, (which presumes no wrong in any man,) will suppose him to continue upon a title equally lawful, unless the owner of the land, by some jmblic and avowed act— such as entry — will declare the continuance to be tortious, or, in common language, wrongful.] We may here observe generally that in the case of a lease for years, as well as in that of a lease for life, or gift in tail, a tenure of the imperfect kind is created between the lessor and the lessee (r) ; and the latter holds of the former by the nominal obligation of fealt}', and by such («)) Co. Litt. 57 b, 271 a; 2 Inst. peaceable. As to the nature of the 134. remedy by way of entry, vide post, (h) Co. Litt. 57 b. bk. v. c. i. (o) Co. Litt. ubi snp. ; and see [q] Trevellian r. Andrew, 5 Mod. n. (4), by Harg. 384. {p) But such entry must be (*■) Vide .sup. p. 247. CHAP. V. — OF ESTATES LESS THAX FREEHOLD. 295 services as are reserved ; but that it is otlierwise as to a tenant at will or at sufferance, from neither of whom is any fealty due. The reason assigned as to the tenant at will, is, that "he hath not any sure estate" («) ; and as to the tenant at sufferance, he is not considered, in strictness, as having any estate at all, but a mere " possession without privity" (0. We may conclude this present chapter by referring to the provisions contained in the Conveyancing Act, 1881 (ii), and Conveyancing Act, 1882 (;r), for the enlargement of certain long terms into fee simple estates. The terms which may be so enlarged are terms which in their first creation were of not less than 300 years, and of which not less than 200 years remain unexpired, and which are without any trust or equity of redemption in favour of the freeholder or other reversioner, and also without any rent or 's\-ith merely a peppercorn or other like nominal rent, or the rent of which (not having been of that class) has been since released, barred, or otherwise lost ; also, the terms must not be liable to be determined for condition broken ; and if they are sub-terms, the superior term (as well as the sub-term) must answer the above description. The enlargement is by simple declaration by deed to the effect that the term shall be enlarged ; and the person to make the declaration is (substantially) the person legally and beneficially entitled to the term, subject or not subject to any incumbrance. The fee simple substituted for the term is subject to all the same estates, rights, and interests as the original term ; and it carries the mines and minerals, unless these have become, by severance, express exception, or otherwise, a separate inheritance. («) Co. Litt. 93 a, 93 b ; G3 a, respited as of course) on his ad- 68 b, u. (5), by Harg. ; sec Denn v. mittance. (Co. Litt. ubi sup.) Fearnside, 1 Wils. 176. There is (0 lb. 270 b. an exception to this, however, in {u) 44 & 45 Vict. c. 41, s. 65. the case of copyhold, which is a (.c) 45 & 46 Vict. c. 39, s. 11. species of estate at will ; for fealty Sec Re Chapman v. Hobbs, 29 Ch. is due from a copyholder (thouirh Div. 1007. 296 UK. II. OF lUGIITS OF PROPERTY. — PT. 1. THINGS REAL. CHAPTER VI. OF ESTATES UPON CONDITION. [Besides the several divisions of estates, in point of inte- rest, which, we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate iqmn condition (a) ; being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated (b). And these conditional estates have been reserved till now, be- cause they are indeed more proj^erly qualifications of other estates, than a distinct species of themselves ; seeing that any quantity of interest — a fee, a freehold, or a term of years — may depend upon these provisional restrictions. These estates, thus understood, are either upon condition implied in law^, or upon condition expressed in the grant itself. Estates upon condition implied are w^here a grant of an estate has a condition annexed to it by the law, inseparably from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an "oflice" generally, without adding other words, the law tacitly annexes thereto a secret condition, that the grantee shall duly execute his office (r-) ; on breach of which condition it is lawful for the grantor, or his heirs, to oust him, and grant it to another person [d) . " Fran- (a) As to this estate, vide Co. {c) Litt. s. 378 ; see Bartlett v. Litt. 201 a— 237 a. Downes, 3 Bam. & Cress. 619. (J) lb. ; Lord Stafford's case, 8 [d) Litt. s. 317. Rep. 73 b. CHAP. YI.— OF ESTATES L' PON CONDITION. 297 [cliises," also, or regal privileges in the hands of a subject, are held to he granted on the same condition of makinf>- a proper use of them ; and therefore they may he lost and forfeited, like offices, either by abuse or by neglect {c). Upon the same principle proceed all the forfeitures of life estates and others for acts done by the tenant himself, that are incompatible with the estate which he holds. As if tenant for life or years should enfeoff a stranger in fee simple : this, b// tltc common late, as we shall see presently, was a forfeiture of his estate ; being a breach of the condi- tion which the law annexes thereto, viz. that he should not attempt to create a greater estate than he himself was entitled to (/").] An estate on condition c.rpn'-s-'icd in the grant itself is where an estate is granted — either in fee simple or other- wise — with an expressed qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated upon performance or breach of such qualifica- tion or condition [g). And these conditions (described in the books as conditions in deed) are either " precedent," that is such as must happen or be performed before the estate can vest or be enlarged ; or " subsequent," that is such as by the failure or nonperformance of which, an estate already vested may be defeated. [Thus, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this is a condition precedent, and the fee simple passeth not till the hundi-ed marks be paid (h). But if a man grant an («) Eiirl of Shrewsbury's case, Rep. 11 ; Fearue, hy Eutler, 279 9 Rep. 50. As to frauchiscs, vide 9th ed. ; as to their defeasance on post, c. XXIII. condition, Co. Litt. 214 b, 215 a. (/) Vide post, pp. 315, .'516. As to asiaXes devised on condition, {g) Co. Litt. 201 a. As to the Sugden on Powers, vol. i. p. 122 commencement of estates upon (7th ed.). condition, see Co. Litt. 216 a— (/)) Co. Litt. 217 b; Lord Staf- 218 b; as to their enlargement on ford's case, 8 Rep. 73 b. condition, Lord Stafford's (iase, 8 208 BK. II, OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [estate in fee simple, reserving to himself and his heirs a certain rent, and. that, if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter and avoid the estate : in this case the grantee and his heirs have an estate upon condition subsequent ; and such estate is defeasible, if the condition be not strictly per- formed (/).] Besides these estates on condition subsequent, there are also estates created by way of conditional limitation (/.•) ; that is to say, where an estate is so expressly defined and limited by the words of its creation, that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail. To this class may be refeiTcd all base fees, and fees simple conditional at the common law (/) . [Thus an estate to a man and his lieirs, t( Hants of the manor of Bale, is an estate in fee on condition that he and his heirs continue tenants of that manor. And so, if a personal annuity be granted to a man and the heirs of his body ; as this is no tenement within the statute of Westminster the Second, it remains, as at common law, a fee-simple on condition that the grantee has heirs of his body {m). Upon the same principle depend all the deter- minable estates of freehold, already mentioned : as dumnte riduitatc, &c. : these are (in effect) estates for life upon condition that the grantees do not marry, and the like (>/). (0 Litt. 8. 325. Uses, 149, 2nd ed.). It is rig-ht, (/.) Co. Litt. 231 b ; see Mary however, to apprise the student Portington's case, 10 Hep. 40 b, that this term is used by different 41 b. The term used by Lord -\\Titers in different senses; see 1 Coke is simply "a limitation." But Sand. Uses, 149, 2nd ed. ; Fearne, as "limitation " is ordinarily used by Butler, 10, n. (/(), 9th ed. ; Gilb. to express a more general idea {\\z. Uses, by Sugd. 178. the definition or circumscription, in (/) Vide suj). pp. 239, 240. any conveyance, of the interest (/«) As to what is a "tenement," which the grantee is intended to vide sup. pp. 169, 170: as to the take), the term " conditional limi- effect of the statute of 13 Edw. 1, tation" better expresses the idea in T)c donis condilionaUhus, referred to the text, and is frequently adopted in the text, vide sup. p. 243. for that i>urpose (as in 1 Sand. [ti] Vide sup. p. 2.)o. CHAP, \1. — OF ESTATES UPON COXUITIOX. 299 [There is a considerable resemblance between conditional limitations and estates depending on conditions subsequent ; but there is this difference — that in the former (as when land is granted to a man, .so long as he is parson of Dale, or ic/iik he continues unmarried, or nnfil out of the rents and profits he shall have made 500/. and the like,) the estate determines as soon as the contingency happens ; and the estate in remainder, which depends upon such deter- mination, becomes immediately vested, without any act to be done by him who is next in expectancy ; — but, in the latter, when an estate is strictly speaking upon condition in deed (as if granted expressly vpon condition to be void npon the payment of 40/., by the grantor, or so that the grantee continues unmarried, or proridcd he goes to York, c^c.,) the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs take advantage of the breach of the condition, and make an entry in order to avoid the estate (o).] As to the necessity of entry, however, in such case, there is a diver- sity (says Lord Coke) between a condition annexed to a freehold and a condition annexed to a lease for years ( p) . Thus, if a lease for years bo made on condition that if the lessee goes not to Rome before such a day the lease shall be void, the lease is ij)so facto void upon the breach of the condition, without any entry by the lessor ; but if tlie lease had been for life, an entry would have been necessary before it could have been defeated (q). The right of entry on breach of a condition subsequent, could not be reserved in favour of a stranger, but only of the grantor or his heirs ; and the effect of entry by him or them, after breach, was to defeat altogether the estate, (o) Litt. s. 347, 331; stat. 32 (p) As to re-entry bj- a lessor on Hen. 8, c. 34 ; Mary Portington's breach of condition, see Roberts v. case, 10 Rep. 40 b, 41 b ; Avelyn Davey, 4 Bam. &: Adol. 664 ; Hill V. Ward, 1 Ves. sen. 420. As to r. Kempshall, 7 C. B. 975. the party on whom lies the onus (q) Co. Litt. 214 b. As to the jjrobaiicU with respect to the breach natiu'e of the entry required, see of the condition, sec Brooke v. Doe v. Pritchard, 5 Barn. & Adol. Spong, 15 Mee. & W. 153. 765. 300 mi. II. OF RIGHTS OF PROPERTY. PT. 1. THINGS REAL. wliicli liad before passed to the grantee ; so that the grantor or his heirs were in as of their former seisin (r). It was also the rule of the common law, that the right of entry on breach could not be assigned in any case to a stranger (s). So that if a man had made a lease for life, reserving a rent, with proviso for re-entry in case of non- payment, and the lessor granted over his reversionary estate to another, the latter could take no benefit from the condition {f). But by statute 82 Hen. YIII. c. 34 (ti), the laAv in this respect is altered, and the grantee of the re- version, upon a lease for life or years, shall have the same benefit of a condition, in case of a subsequent breach, as the grantor himself would have had, — provided that such condition relates to the payment of rent, the restriction from waste, or other like object tending to the benefit of the reversionary interest (x) ; and this provision has been extended by the statutes 22 & 23 Yict. c. 35, s. 3, and 44 & 45 Yict. c. 41, ss. 10 — 12, to the severance of the reversionary estate. As regards conditional limitatioHs, a stranger may in all cases take advantage of these, even without the aid of the statutes ; for, as regards these limi- tations, they are spent and determined when the condition happens, and the next estate comes into possession, whether it be a reversion upon or a remainder after the conditional limitation, and in whomsoever such reversion or remainder may then be vested (//). [In all instances of estates upon express condition, it is to be observed, that so long as the condition remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed (»•) Fearnc, by Butler, 381, n. {<(), and the notes thereto ; Bnckworlh 9th cd. As to the rights of the r. Simpson, 5 Tyrw'. 354 ; Standen grantor or his heirs on re-entry, in v. Chrismas and another, 10 Q. B. respect of the embleiiirnts, see Davis 135 ; Wright r. Burroughes, 3 C. B. V. Eyton, 7 Bing. 154. C85. (.v) Litt. s. 347. {x) Co. Litt. 205 b ; 1 Saund. by (t) Co. Litt. 215 a. Wms. 287, n. (16). («) As tothis statute, see Thiu-sby (y) Co. Litt. 214 b; Mary Por- r. Plant, 1 Saund. by Wms. 237, tin gton's case, 10 Kep. 42. CHAl'. VI. — OF ESTATES UPON CONDITION. 301 [be in itself of a freehold nature : as if tlie original grant express either an estate of inheritance or for life ; or no estate at all, which is constructively an estate for life. For the breach of these conditions being contingent and uncertain, this uncertainty preserves the freehold, because the estate is capable to last for ever, or at least for the life of the tenant, supposing the condition to remain unbroken [a). But v/here the estate is at the utmost a chattel interest, which must determine at a time certain, and may determine sooner (as a grant for ninety-nine years, provided A., B. and C, or the survivor of them, shall so long live,) this still continues a mere chattel, and is not by reason of such its uncertainty ranked among estates of freehold. These express conditions are void if they be impossible at the time of their creation, or nfterwards become impos- sible by the act of God or the act of the grantor himself ; or if they be coitfrar// to laic, or repugnant to the nature of the estate. In any of which cases, if they be condi- tions subsequent, that is, to be performed after the estate is vested, the estate shall become absolute in the tenant. As, if a feoffment be made to a man in fee-simple, on condition that unless he goes to Rome in an hour, or unless he marries with Jane S. by sucli a day, (within which time the woman dies, or the feoffor marries her himself) ; or unless he kills another ; or in case he alienes in fee ; that then and in any of such cases the estate shall be vacated and determined : here the condition is void, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in him, which shall not be defeated afterwards by a condition either impossible, illegal or repugnant (/>). But if the condition he pi-eccdcnt or to be performed before the estate vests, as a grant to a man that, if he kills another or goes to Eome in an {a) Co. Litt. 42 a. C. B. 744 ; Clifford v. Watts, Law {b) lb. 206 a; Mary Portiugtoii's Rep., 5 C. P. o77; Rosber v. Rusher, case, 10 Rep. 42; Doe v. Eyre, 5 2G Ch. Div. 801. '302 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [houi', lie shall liave an estate in fee ; here, the void con- dition being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the grant ; for he hath no estate until the condition be per- formed (p).] On the other hand, even where the condition is valid and capable of being enforced, it is also capable of being waived by the grantor at his pleasni'e [d) ; and as the law always leans against forfeitures (e), it will consider him as having waived his right to enter for breach of a condition subsequent, if, after notice of the breach committed, he does any act inconsistent with an intention to avail him- self of the forfeiture. Thus, if a lease be made with a proviso that, in the event of the lessee's assigning his interest, the lessor shall be at liberty to enter on the land demised, as of his former estate ; he will nevertheless not be entitled to enter, if, after an assignment made, he ac- cepts rent from the assignee (/). By a modern enactment however (23 & 24 Yict. c. 38, s. 6), an actual waiver of the benefit of any covenant or condition in a lease by the lessor shall not (in the absence of any intention appearing to that effect) be assumed to extend to any breach other than that to which the waiver sj)ecially relates, nor to operate as a general waiver of the covenant or condition in question {(j). Such being the general nature of estates upon condition, specific notice is due to certain distinct classes of them. And I. as to such as are held in gage or pledge ; such (c) Co. Litt. 206 ;i. See Shrews- Hartshorne z.'. "Watson, 4 Bing-. N. bury V. Scott, C C. B. (N. S.) 17'J. C. 178; Doe v. Rees, ib. 384. (rf) Co. Litt. 218 a. (y) See, also, as to breaches of {e) Ib. 206 b; Clay v. Bowler, certain covenants in leases, 15 & 5 Ad. & Ell. 403, n. 16 Vict. c. 76, s. 210; 22 & 23 (/) See Co. Litt. 211 b ; Doe d. Vict. c. So, ss. 1—3, 4—9 ; 23 & 24 Na.sh r. Birch, 1 Mee. & W. 402 ; Vict. c. I2G, .ss. 1, 2 ; and 44 & 45 Doc r. Lewi.s 5 Ad. & Ell. 277 : Vict. c. 41, s. 11. CHAP. VI. — OF ESTATES UPON CONDITION. 'W] • pledge being of two kinds, vivum vadium, or living pledge ; and mortimm vadium, dead pledge, or mortgage. [ Vivum. vadium, or living pledge, a term not now occur- ring in practice, is when a man borrows a sum (suppose 200/.) of another ; and grants him an estate, as of 20/. jjer annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void, as soon as such sum is raised. And in this case the land or pledge is said to be living : it subsists, and survives the debt ; and immediately on the discharge of that, results back to the borrower (//). But morfuum vadium, a dead pledge, or mortgage, is where a man borrows of another a sum and grants him an estate in fee or for a less interest on condition that if he, the mortgagor, shall repay the mortgagee the said sum (generally with interest thereon at a fixed rate) on a certain day mentioned in the deed, that then the mortgagor may re-enter on the estate so granted in pledge ; or, as is now the usual way, that then the mortgagee shall re-convey the estate to the mortgagor. In this case the land, which is so put in pledge, is by law, in case of non-payment at the time limited, for ever dead and gone from the mortgagor ; and the mortgagee's estate in tlie lands is then no longer conditional, but absolute : but so long as it continues conditional, that is, between the time of lending the money and the time allotted for payment, the mortgagee is called tenant in mortgage (/).] As soon as the estate is created, the mortgagee, in the absence of any stipulation to the contrary, might imme- diately enter on the lands, but would be bound to restore them upon performance of the condition by payment of the mortgage-money at the day limited ; and therefore it is usual to insert a provision that the mortgagor shall hold the land till the day assigned for payment : but in (//) Co. Litt. 205 a ; see Fenwick served that a mere deposit of title V. Reed, 1 Meriv. 119. Astomort- deeds without any conveyance will gages of a personal chattel, see amount to a mortgage in contem- riory V. Denny, 7 Exch. 581. plation of equity. (See Russell v, (i) Litt. s. :332. It may he oh- Russell, 1 Bro. C. C. 209.) 304 15K. II, OF RIGHTS OF PKOPERTY. PT. I. THI^'GS REAL. case of failure to pay at that period, the mortgagee is then entitled to enter and take peaceable possession ; nor do the principles of Jcuc admit of his being afterwards evicted by the mortgagor [h) . The mortgagee, however, is not in fact permitted to avail himself of the forfeiture, to any extent beyond what is necessary for the satisfaction of his reasonable claims. For here cquifi/ will inter- pose (/) : and though a mortgage be thus forfeited, and the estate absolutely vested at law in the mortgagee, and although he has obtained possession, yet the mort- gagor will be allowed to recall or redeem his estate, on paying to the mortgagee his principal, interest, and ex- penses ; for otherwise in strictness of law, an estate worth 1,000/. might be forfeited for non-payment of 100/. or a less sum {;m). It is, however, provided by the 37 & 38 Yict. c. 57, the Real Property Limitation Act, 1874 (which came into operation on the 1st January, 1879), that a mortgagor shall not be entitled to redeem but within t'celve years next after the time that the mortgagee shall (/.) See Doe v. Giles, 5 Bing. (/) It may be observed that even 421 ; Doe v. Cadwallader, 2 Bam. when law and equity were admi- & Adol. 473 ; Thunder v. Belcher, nistered in difPerent courts (that 3 East, 449 ; Doe r. Maisey, 8 is to say, prior to the Judicature Barn. & Cress. 767 ; Partington r. Act, 1S73), the principle of equity Woodcock, 6 Ad. & El. 695. It referred to in the text was, by is 8uppo.«od in the text that there 7 Geo. 2, c. 20, and 15 & 16 Vict. is no tenant in possession, under c. 76, introduced into the proceed- a lease prior to the mortgage. If ings at law where the mortgagee there be, his possession cannot of brought ejectment. Eor the action course be disturbed ; but he may would be stayed on the mortgagor's be compelled to pay over his rents paying principal, interest, and to the mortgagee. If there be a costs. tenant in possession under a lease (;«) If the money be not repaid granted by the mortgagor suhse- by the day assigned, and the mort- qucnlhj to the mortgage, and with- gagee has neither demanded, nor out the privity of the mortgagee, tiiken any steps to compel, pay- he may be ejected, unless indeed ment, he is entitled to receive from such bubscquent lease was made the mortgagor .vu- calendar months' under and in conformity with the notice in icriting of his intention Conveyancing Act, 1881 (14 & 45 to pay off the mortgage. (See Vict. c. 41), s. 18. Shrapnell v. Blake, 2 Eq. Ca. Ab. in tit. Mortg.nge, jil. 31.) CHAP. VI. — OF ESTATES LPON COXDITIOX. 305 obtain possession or receipt of the profits of tlie land mort- gaged or of rent : unless indeed an acknowledgment in writing shall have been given by such mortgagee of the right of the mortgagor, in which case the power of re- demption is limited to a period of twelve years from such acknowledgment {ii). And in favour of a mortgagee who has not obtained possession, it is enacted by 7 Will. IV. 6 1 Vict. c. 28, (as amended by the same Real Property Limitation Act, 1874,) that any person, entitled to or claiming under any mortgage of land, may make entry or bring action or suit to recover the same within twelve years next after the last payment of any part of the principal or interest secm'ed by such mortgage ; — and tliis he may do although more than twelve years may have elapsed since his right to enter or sue shall have first accrued (o). The reasonable advantage above referred to, allowed to a mortgagor, is called the equity of redemption [p) ; and he may avail himself of it by taking proceedings "to redeem" in the proper coiu-t {q) . If the mortgagee be not in pos- session this proceeding (which as the general rule must be taken in the Chancery Division of the High Court of Justice' merely calls upon him for a reconveyance, on payment of principal, interest, and costs of suit (r) : but [») Prior to this proA-ision the s. 30). period of limitation "was twenty [q) See Scotto v. Heritage, Law years (3 & 4 Will. 4, c. 27, s. 28). Rep., 3 Eq. Ca. 212. (o) See Doe d. Palmer v. Ejtc, (>) It may be here incidentally 17 Q. B. 3GG; and Pugh v. Heath, observed that, during the continu- 7 App. Ca. 235. ance of the equity of redemption, {p) In certain cases of accidental the mortgagor has been regarded iu or formal difficulty in obtaining a equity as the owner of the estate, reconveyance (as where the mort- subject only to the mortgage debt: gagee died intestate and without and hence, on the death of the an heir), the coui't might have for- mortgagor, the mortgaged estate merly made an order having the comes to the devisee (or heir) en- effect of a reconveyance (13 & 14 ciimbored with this debt. By Vict. c. 60, s. 19) ; but the personal 17 & IS Vict. c. 113 ("Locke King's representative of such deceased Act," as to which see 30 & 31 Vict, mortgagee may now make the re- c. 69, and 40 & 41 Vict. c. 34), the conveyance (44 & 4.5 Vict. c. 41, estate so encumbered and devised or VOL. I. X 306 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. as against a mortgagee wlio has obtained possession, it prajs that an account may be taken of all the rents and profits on the one hand, and of the principal, interest, and costs on the other ; and that, on payment of what may appear due on such account, a reconveyance may be made, and the possession of the premises restored («). On the other hand, the mortgagee, where his debt remains unpaid for more than a reasonable time after the time agreed on, may (although the time for redeeming be still running) take proceedings in chancery " for foreclosure," calling upon the mortgagor to redeem his estate presently, or in default thereof to be for ^vex foreclosed from redeem- ing the same ; that is, to lose his equity of redemption without possibility of recall (/). And also, in some cases of fraudulent mortgages [ii), such as twice mortgaging the same lands v/ithout giving notice of the mortgage already effected, the fraudulent mortgagor forfeits all equity of re- demption whatsoever (r). The mortgagee may also bring descending' is, in the absence of an expressed intention to the contrary on the part of the mortgagor, charged with such his debt. Be- fore these provisions, in the absence of an expressed intention, the ^j^-r- sonal estate of the deceased mort- gagor was primarily liable. As to these Acts, see Maxwell v. Hyslop, Law Rep., 4 Eq. Ca. 407; Brown- son V. Lawrance, ib., 6 Eq. Ca. 1 ; Nelson v. Page, ib., 7 Eq. Ca. 2.3 ; Coote i'. Lowndes, ib., 10 Eq. Ca. 376 ; Lewis v. Lewis, ib., 13 Eq. Ca. 218; Sackville v. Smyth, ib., 17 Eq. Ca. 153. (a) See Parkinson v. Hanbury, Law Eep., 2 H. of L. Ca. 1. By 37 k 38 Vict. c. 78, s. 4, it was pro- vided, that the legal personal repre- sentative of a mortgagee might, on payment of the moneys secured by the mortgage, convey or siurender the mortgaged estate ; but that sec- tion of this Act has been repealed by the Conveyancing Act, 1881 (44 & 45 Vict. c. 41, s. 30), Avhich has enacted that such personal repre- sentative shall (not merely inaif) in such a case reconvey the estate, whether the mortgagee die testate or intestate. it) Campbell y.Holyland, 7 Ch. D. 166. In such a suit, hovv-ever, the coui't may direct a sale instead of a foreclosure (see 15 & 16 Vict. c. 86, s. 48 ; Newman v. Selfe, 33 Beav. 522; and 44 & 45 Vict. c. 41, s. 25). («) See Stat. 4 & 5 TV. & M. c. 16. (?') In cases where the land is mortgaged to several persons, each ignorant of the other incum- brances, the maxim qui prior est tempore, potior est Jure, prevails, where all the mortgages are equit- able (see Jones v. Jones, 8 Sim. 633 ; Wilmot v. Pike, 5 Hare, 14) ; but preference is given, in the CHAP. VI. — OF ESTATES UPON CONDITION. 307 the estate to sale in satisfaction of his debt, (paying over the surplus proceeds, if any, to the mortgagor,) even with- out resorting to the expedient of proceedings in equity, provided the security be taken (as is now the usual practice) in such form as to authorize that course of proceeding (,r) ; and even if no power of sale be conferred by the terms of the instrument, he may still bring the estate to sale in such manner as is provided by the modern Act of 44 & 45 Yict. c. 41 (//). It may be here remarked tliat it forms one of the pro\isions of the Judicature Act, 1873, that a mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises on a lease or other contract made by him jointly with any other person (z). The state of the law, as above explained, with respect to mortgages, affords the reader an example of the dis- tinction referred to in a former place betw^een legal and equitable estates (c^). At law, the ownership of the land, as we have seen, is considered as absolutely vested, upon the non-payment of the money advanced, in the mort- gagee. The doctrines of equity, on the other hand, hold general case, to the mortgagee in to the selling, &c., the insuring possessionof the legal estate. (God- against fii'e, and the appointment dard v. Complin, 1 Cha. Ca. 119.) of a receiver, who shall receive the (x) The concurrence of the mort- rents and profits as agent of the gagor is not required in such sale. person entitled to the property (See Corder v. Morgan, 18 Ves. subject to the charge. (44 & 45 344.) Vict. c. 41, ss. 19—24.) (y) By this Act a mortgagee has (c) 36 & 37 Vict. c. 66, s. 25 (o). now several powers as incident to (a) Vide sup. p. 230 ; 1 Sand, his estate, though not in form con- Uses, 203, 2nd od. fen'ed bv tho deed. These relato 308 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. tlie mortgagor to be the irue owner until a foreclosure shall have taken place {b). There exist, therefore, in respect of the same subject-matter, a legal and an equitable estate ; the former being vested in the mortgagee, the latter in the mortgagor. II. There is another species of estates defeasible on condition of which some mention is due, though in modern times they have been superseded by other remedies for the benefit of creditors— such having been the object of their original introduction. [These estates are those held by sfafufe merchant and Hfatiite staple (c) ; and they are very nearly related to the vivnm vadium before mentioned (r/). For both the statute merchant and statute staple are se- curities for money ; the one entered into before the cliief magistrate of some trading town, pursuant to the statute 13 Edw. I., Be mercaforihiis, and thence called a statute merchant : the other pursuant to 27 Edw. III. stat. 2, c. 9, before the mayor of the "staple;" that is to say, the grand mart for the principal commodities or manufactures of the kingdom, formerly held by Act of Parliament in certain trading towns : from whence this security was called a statute staple. They are both securities for debts acknow- ledged to be due, and were originally permitted only among traders for the benefit of commerce ; and, when entered into, not only the body of the debtor might be imprisoned, and his goods seized in satisfaction of the debt, but also his lands might be taken by the creditor, till out of the rents and profits of them the debt was satisfied ; and, during such time as the creditor so held the lands, he was termed tenant by statute merchant or statute staple.] The benefit of this mercantile transaction was afterwards, by virtue of the statute 23 Hen. VIII. c. 6, extended to all the king's [h) Caslibom v. Scarfe, 7 Vin. {<■) As to these estates, see 2 Inst. Ab. loG; 2Eq. Ca. Ab. 728, S. C. ; 322; 2 Sauud. by Wms. 69 c, and see Amherst v. Dawling, 2 n. (3) ; Reeves's Hist. Eng. Law, Vem. 401. vol. ii. pp. 161, 393. {>!) Vide sup. p. 303. CHAP. VI. — OF ESTATES UPON fUNUniUN. o09 subjects, whether traders or not (e). And such recogni- zance ill the ncdiirc of a statute staple was directed by the Act to be acknowledged before either of the chief justices, or (out of term) before their substitutes, the mayor of the staple at Westminster and the recorder of London ; and to be enrolled and certified into chancery (/) . III. There is also an estate on condition, which is created by operation of law, for security and satisfaction of debts, which is called an estate of elegit. [Wliat an elegit is, and why so called, will be fully explained in a subse- quent part of this work {g). At present it may be sufficient to mention that it is the name of a writ, founded on the statute of Westminster the second (//), by which, after judgment in an action has been obtained, the sheriff gives the judgment creditor possession of the lands and tenements of the opposite part^^, to be occupied and enjoyed until the money due on such judgment is fully paid ; and during the time the judgment creditor so holds them he is called tenant by elegit. It is easy to observe that this is also a mere conditional estate, defeasible as soon as the judgment debt is levied (/).] And by this writ, at one period, only one-half of the lands and tenements of the judgment debtor could be seized in execution. For as the general right which a man possessed of aliening his lands by his own act did not (as is commonly supposed) extend at the time of the passing of the statute of Westminster the second, {(■) This Act was amended by {[/) Vide post, bk. v. c. x. 8 Geo. 1, c. 25. {h) 13Edw.l,c.l8. See2Sauiid. (/) It has been remarked (see by Wms. G8 a, n. (1) ; Hist. Eng. Biirt. Compend. 298) that the law Law, by Reeves, vol. ii. p. 187. relative to statute Ftaplo is still so (i) Dighton v. Greenvil, 2 Vent, far of practicil importance, that 327; Price v. Vamey, 3 Bam. & by 33Hen. 8, c. 39, andl3Eliz.c. 4 Cress. 733. The estate by elegit (see Reg. i\ Ellis, 4 Exch. 652), is also put an end to by the sale of persons indebted to the crown are the premises under the direction of to incAir, in certain cases, the same the court, on the application of the liability as (/"they were bound in a tenant under 27 & 28 Vict. c. 112, statute staple. s. 4. 310 BK. II. OF RIGHTS OF I'llOPERTY. — PT. I. THINGS REAL. (a.d. 1285,) to the whole of bis lands (/.), — that statute permitted them to be oiilj partially affected by the process of law for his ordinary debts (/) ; though, on the other hand, by the statute De incrcaforibiis, passed in the same year, the u-JioIe of a man's lauds were made liable to be pledged in a statute merchant, for a debt contracted in trade. So much more readily did the feudal restraint on alienation yield to considerations of a commercial kind, than to any others. And such continued to be the state of the law as to the writ of elegit, imtil the modern statute 1 & 2 Vict. c. 110 ; which for the first time enabled the judgment creditor to seize by that writ the u-liole of the judgment debtor's lands and tenements {m). [We shall conclude our notice of the estates by statute merchant, statute staple, and elegit, "vvith this remark, that though the tenants are said to hold uf lihcrum tcncmcufum until their claims are satisfied, yet are their estates no freeholds, but chattels, and pass to their personal repre- sentatives {n) : which is probably owing to this : that, being a security and remedy provided for personal debts due to the deceased, to which debts his personal representative is entitled, the law has therefore thus directed their succes- sion ; as judging it reasonable from a principle of natural equity, that the security and remedy should be vested in tliose to Avhom the debts, if recovered, would belong. (/•) Wright's Ten. 154. Black- made in equity, lunacy, or bank- stone says, that " before the statute ruptcy), "whereby any money shall " of Quia emptores, 18 Edw. 1, c. 1, be payable to any person," shall " it is generally thought that the have the effect of judgments in ac- ' ' proprietor of lands was enabled tions ; and the persons to TV'hom " to alienate no more than a moiety money is thus payable are conse- " of them." — 2 Bl. Com. p. IGl. queutly, as judgment creditors, en- (/) 13 Edw. 1, e. 18. titled to become tenants by elegit. (>h) 1 & 2 Vict. 0. 110, 8. 11. The See further as to an elegit, post, same statute (s. 18), and 27 & 28 bk. v. c. x. Vict. 0. 112, s. 2, provide, in effect, («) Co. Lift. 42 a, 43 b : 2 Inst. that decrees and orders and iniles 322. of court (including such as are CrJAP. Vr. — OF ESTATES UPOX CONDITION. 311 [And, upon the same principle, if lands be devised to a man's executor, until out of their profits the debts due from the testator be discharged ; this interest in the lands shall be a chattel interest, and on the death of such executor shall go to ///s- executors (o) : because they, being liable to pay the original testator's debts, so far as his assets will extend, are in reason entitled to possess that fund out of which he has directed them to be paid.] (o) Co. Litt. 42 a. 312 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. CHAPTER YII. OF ESTATES IN POSSESSION, REVERSION, AND REMAINDER. Hitherto we have considered estates solely with regard to their duration, or the quantify of interest which the owners have therein. We are now to consider them in another view: mth regard to the time of their enjoyment [a). When contemplated in this light, they are either in ^jos- session or in erpcctancy. Where a man is entitled imme- diately to the possession, by virtue of any of the estates or interests which we have been considering, his estate is said to be in possession {h) ; when entitled to it, not immediately, but at some futm-e time, his estate is said to be in expectancy. Of expectancies, again, there are, at the common law, two sorts ; one called a reversion ; the other a remainder. I. Of estates in possession not much remains to be observed. All the estates hitherto mentioned have been supposed to be of this kind ; for in laying down general rules we usually apply them to such estates as these. But it is material further to remark of them, that a man may have an estate in possession in land, and may yet not be (rt) Vide sup. p. 230. " subsequent circum (stance or con- (i) Blackstone (vol. ii. p. 163) "tingency." So it is said in 2 defines estates in possession as Cruise, Dig. 2.58, "that estates in " those wliereby a present interest "possession are those where the "passes to and resides in the "tenant is entitled to the actual " tenant, not depending on any " pernancy of the profits." CIl. VII. — OF ESTATES IN POSSESSIOX, "REVERSION, ETC. 313 in actual possession of the land ; for he may he diHucii^cd [c), that is, put out of the actual seisin, supposing his estate to be freehold ; or may be deprived or ousted of the actual possession (whatever may be the nature of his estate), in some one of the wrongful ways which will hereafter l)e described when we come to treat of the various modes of civil injury {d) ; but, however ousted, he will still retain an estate in possession, according to the sense in which that term is above used. In such a case the true owner is also said to have the right of possession {c) ; as opposed to the mere nahcd possession of the wrongdoer : and this right of possession involves also the rigJtt of entry (/), that is, the right of entering upon and taking possession of the land withheld, if he can do so without breach of the peace : while, on the other hand, the naked possession of the wrongdoer is capable — by length of time and the neglect of the true owner to assert his right — of ripening, after a certain period (fixed, in general, at twelve years), into a lawful and indefeasible estate [g). Without pausing, however, upon these subjects, the f mother development of w^hich belongs to a later portion of our work, we shall now proceed to examine the doctrine of estates in expectancy. II. An estate, then, in reversion {h), to the nature of which we have already had occasion in some measure to {c) As to disseisin, see Co. Litt. proceeding called real actions, by 181a; Taylor r. Horde, 1 Burr. 60 ; which land might also formerly bo Williams «'. Thomas, 12 East, 141 ; recovered, were, with some very Doe V. Perkins, 3 Mau. & Sel. 275. few excex^tions, abolished by 3 & 4 {d) Vide post, bk. v. c. viii. Will. 4, c. 27, s. 36 (vide post, {e) Bl. Com. vol. ii. p. 195 ; ib. bk. v. c. viii.). vol. iii. p. 177 ; Gilb. Ten. 21. {g) See 37 & 38 Vict. c. 57. (/) The right of entry also in- {h) Lord Coke treats of rcmain- volves that of proceeding against ders before reversions, and is fol- the wrongdoer by rytr^wirw^, or by an lowed in this by Blackstonc. But action in the nature of ejectment, the order chosen in the text would which is the present mode for reco- seem to be the more natural and vering, by action, land ■wrongfully convenient, withheld. The antient forms of 314 BK. II. OF RIGHTS OF PROPERTY. — PT. T. THIXGS REAL. refer, is wliere any estate is derived, by grant or other- wise, out of a larger one, leaving in tlie original owner an ulterior estate immediately expectant on that whicli is so derived ; the latter interest is called the particular estate (as being only a small part or jmrficida of the original one), and the ulterior interest is called the reversion (/), Thus, upon the creation, by the owner of the fee, of any estate in tail, for life, or for years, the residue of the fee undisposed of is described as the reversion expectant upon the particular estate in tail, for life, or for years, so created. As soon as the particular estate is thus carved out of the original one (no further disposition being made), the expectant interest or reversion continues vested in him who was before the owner of the whole, ijjso facto and without any special reservation for the purpose (j). For where a smaller estate is merely taken out of a larger, the residue remains, as of course, in the original proprietor. This reversion is an actual interest or estate {k) ; but it is an estate in expectancy only, and not in possession, because the reversioner has no right to the possession until the particular estate is determined. The tenant of a particular estate in tail, for life, or years, holds, as we have elsewhere shown, of the rever- sioner, by fealty and by such services as are reserved between them (/). Hence the usual incidents to reversions (i) Lord Coke says, "A rever- to it, and would include aj;os.wi«7i^y " sion is where the residue of the of reverter (vide sup. p. 243), ani "estate always doth continue in an escheat (vide siip. pp. 178, 199, "him that made the i^articular 209). A reversion is defined by "estate, or where the particular Blackstonc (a'oI. ii. p. 175) as "the " estate is derived out of his estate, "residue of an estate left iu the " as in the case tenant in fee simple " grantor, to commence in posses- " maketh gift in tail, &c." (Co. "sion after the determination of Litt. 22 b.) He elsewhere speaks "some particular estate granted of a reversion as a returning of the " out by him." land to the grantor or his heirs (/) Litt. s. 19. after the grant is over (Co. Litt. {k) Wiscot's case, 2 Rep. 61 ; see 142 b) ; but this is a wider sense of Doe v. Gatacrc, 5 Bing. N. C. 619. the tenn than is usually attached (/) Vide sup. pp. 234. 247. en. VII. — OF ESTATES IN TOSSESSION, REVERSION, ETC. 315 are said to be fealty and rent (ni) ; rent being the usual description of service. [When no rent is reserved on the particular estate, fealty however results of course as an incident quite inseparable : and in the case where rent is reserved, it is also incident, though not inseparably so, to the reversion. The rent may be granted away, reserving the reversion ; and, by special words, the reversion may be granted away, reserving the rent ; but by a generctl grant of the reversion, the rent will pass with it as incident thereunto, though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not e converso ; for the maxim of law is accessorium non dueit scd seqnifur suuin 2))'uicipaJc (;i).] Where a freehold reversion (that is, a reversion in fee, in tail, or for life) is expectant on a particular estate of freehold, the reversioner is said to be " seised of the reversion as of fee," (or if his estate be for life, " as of freehold ") : and not to be " seised of the land in his demesne as of fee" (or "freehold"), as in the case of an estate in possession. But if a freehold reversion be ex- pectant on a particular estate for years, it is in that case correct to describe the reversioner as " seised of the land in his demesne as of fee ; " for his estate is considered (owing to the small regard once paid to chattel interests) as amounting for many purposes to a freehold estate in possession, and the possession of the termor constitutes the seisin of the freeholder (o). Of a reversion expectant on a particular estate of freehold, no dower or curtesy can (as we have seen) be claimed ; but it is otherwise of a rever- sion expectant on a term of years (;>). By the principles of the comiiion law, if the tenant of (m) "An incident," says Lord 191 ; Butler, Co. Litt. 330 b, n. (1); Coke, " is a thing' appertaining to Co. Litt. 17 a; 16 East, 3o0 ; Doe "or following another, as more v. Finch, 4 B. & Adol. 305. "worthy or principal. "—Co. Litt. (;>) Co. Litt. 29 b, 32 a; 2 Bl. 151 a. Com. 127 ; Stoughton r. Leigh, 1 {)i) Co. Litt. 151 1), 152 a. Taunt. -110; \idc sup. pp. 265, (o) "Wrotcslcy r. Adam^i, Plowd. 269. 310 1!K. II. OF RIGHTS OF ritOrERTY. — PT. I. THlXCjS REAL. the particular estate for life or years made a eonyejance by feoffment, for an estate not warranted by the nature of bis interest ; as where tenant for life made a feoffment in fee, or tenant for years a feoffment for life ; it de- stroyed the particular estate, by converting it into a new and wrongful one ; and by consequence it diq^kiced or divested the reversion in expectancy thereon. And, on the other hand, it also operated as a forfeiture to the person in reversion, and gave him an immediate right to enter and take possession, in defeasance of the ^\Tongful estate so created {cj). The law, however, on these points is now to be understood as subject to the effect of a modern statute, 8 & 9 Yict. c. 106, of great importance, by which it is provided (sect. 4), that " a feoffment made after 1st October, 184-5, shall not have any tortious opera- tion " (r). [Another doctrine, connected with the law of estates in reversion, is that of " merger." It is a general principle of law, that where a greater estate and a less coincide and meet in one and the same person, without any inter- mediate estate (s), the less is immediately annihilated, or, in the law phrase, is said to be mergrd, that is sunk or drowned, in the greater. Thus, if there be a tenant for ('/) Litt. s. 415; Co.Litt. 251a, b; c. lOG, was nevertheless in force, as Chudleigh's case, 1 Eep. 135 b; to the greater part of its provisions, Ai-cher's case, ibid. 66 b ; 2 Bl. from the 31st December, 1841, to Com. 153, 274 ; Doe v. Howell, 10 the 1st October, 1845, and conse- Bam. & Cress. 191. The same quently still affects the title to land effects also in general followed, during that period. Of this Act, where the particular tenant for life it was remarked by Mr. Justice made a wrongful alienation by way Maule (in the case of Stratton v. oiftnc or recovery (conveyances now Pettit, 16 C. B. 432), " that it was abolished by 3 & 4 Will. 4, c. 74). "incongruous and impossible of Sec Co. Litt. 356 a, 251 b; Doe r. "operation; and its absurdities Gatacre, 5 Bing. N. 0. 609. " were so great that the framers (/■) We may take the opportunity "themselves had no very distinct here of noticing a previous Act, " notion of its meaning." " To .simplify the Transfer of Pro- (.v) Diincomb v. Duncomb, 3 Lev. " perty," (7 & 8 Vict. c. 76,) wliich, 437. though repealed by the 8 (!c 9 Vict. CH. VII. — OF ESTATES IN POSSESSION, REVERSION, ETC. 317 [years, and the reversion in fee simple descends to or is purchased by him, the term of years is merged in the in- heritance, and shall never exist any more {t). But they must come to one and the same person, in one and the same right ; for if the freehold be in his own right, and he has a term in right of another [en autre droit), there is no merger (/^). Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge : for he hath the fee in his own right, and the term of years in the right of the testator, subject to his debts and legacies. So, also, if he who hath the reversion in fee marries the tenant for years, there is no merger : for he hath the inheritance in his own right, the lease in the right of his wife {;v). An estate tail is an exception in the general law of merger ; for a man may have, in his own right, both an estate tail and a reversion in fee ; and the estate tail, though a less estate, shall not merge in the fee (.r). For estates tail are pro- tected and preserved from merger by the operation and construction, though not by the express words, of the statute De donis ; which operation and construction have {t) By 8 & 9 Vict. c. 106, s. 9, "same lease." This enactment when the reversion expectant on a was framed with the object of lease (made either before or after securing — e. g. the termor's rights the passing of that Act), shall, with respect to rent due from his after the 1st October, 1845, be sur- under-lessee ; for such rent, as an rendered or merge, " the estate incident to such termor's reversion " which shall for the time being (vide sup. p. 315), would have " confer, as against the tenant perished on his acquiring the fee. ''under the same lease, the next («) Sec Jones v. Davies, 5 H. & " vested right to the same tone- N. 7t5G. " ments or hereditaments, shall, — [v) Bracebridge v. Cook, Plowd. " to the extent and for the pur- 418 ; Piatt v. Sleap, Cro. Jac. 275 ; "pose of preserving such inci- Co. Litt. 338 b. For cases in which ' ' dents to, and obligations on, a merger will be prevented, see "the same reversion, as, but for also Fearne's Cont. Rem. 341, 9th "the surrender or merger thereof, edit. " would have siibsisted — be deemed [x) Wiscot's case, 2 Hep. 61a; "the reversion expectant on the Lord Staff oi'd's case, 8 Rep. 74 b. 318 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. [probably arisen upon this consideration, that in the common cases of merger of estates for life or years, by uniting with tlie inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion ; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate (//). But in an estate tail the case is otherwise ; the tenant for a long time had no power at all over it so as to bar or to destroy it, and to this day cannot bar or destroy it except in a special method : it would therefore have been strangely improvident to have permitted the tenant in tail, by pur- chasing the reversion in fee, to merge his particular estate and defeat the inheritance of his issue ; and hence it has become a maxim that a tenancy in tail, which cannot be surrendered, cannot be merged in the fee (~).] Merger, it is to be observed, is not confined to cases where one of the coinciding estates is greater than the other in point of quantitij of interest ; for a term of years will merge in the immediate reversion, tliough that be a chattel interest also ; and even where the term of years in reversion is of shorter duration than the term on which it is expectant, the merger will equally take place [a) . So a fee simple conditional will merge in the possibility of reverter {h). III. An estate in remnhuler arises where an estate is [y] Hughes v. Eobotliam, Cro. shall not be after the 2nd Novem- Eliz. 302. ber, 1874, any merger, by ojjera- (;) Where a tenant in tail, how- tion of law only, of any estate, the ever, acquired a base fee, and had beneficial interest in which would also the immediate reversion, the not be deemed to bo merged or ex- base fee would formerly merge in tinguished in equity. ^^ (36 & 37 the reversion ; and by 3 & 4 Will. Vict. c. G6, s. 25.) 4, 0. 74, 8. 39, a base fee will now («) Sec Bac. Abr. Leases, &c. be enlarged, under such circum- (S.) 2 ; 3 Prest. Conv. 182 ; Doe v. Btances, into a fee simple absolute. Walker, 5 Bam. k Cress. 111. It may be here noticed that under [b) Simpson v. Simpson, 4 Bing. the Judicature Act, 1873, "there N. C. 333. CH. VII. — OF ESTATES IN POSSESSION, RF.VKKSIOX, ETC. -'310 granted out of a larger one, an ulterior estate imme- diately expectant on that which is so granted being at the same time conveyed away by the original owner. The first estate so granted is called the particular estate, and the ulterior one the remainder (e). [As if a man seised in fee simple granteth lands to A. for twenty years, and, after the determination of the said term, then to B. and his heirs for ever ; here A. is tenant for years, remainder to B. in fee. In the first place an estate for years is created or carved out of the fee, and given to A. ; and the residue or remainder of it is given to B. But both these interests are in fact only one estate ; the present term of years and the remainder afterwards, v\'hea added together, being equal only to one estate in fee {(/). They are indeed different parts, but they constitute only one u-l/olc : they are carved out of one and the same inheritance ; they are both created and may both subsist together ; the one in possession, the other in expectancy. So if land be granted to A. for twenty years, and, after the determination of the said term, to B. for life ; and after the determination of B.'s estate for life, it be limited to C. and his heirs for ever : this makes A. tenant for years, with remainder to B. for life, remainder over to C. in fee. Now here the estate of inheritance undergoes a division into three portions ; there is first A.'s estate for years carved out of it; and after that B.'s estate for life ; and then the whole that remains is limited to C. and his heirs. And here also the first estate, and both the re- mainders for life and in fee, are one estate only, being nothing but parts or portions of one entire inheritance; and if there were a hundred remainders, it would still be (c) Lord Coke defines a remainder "and be enjoyed after another as " a remnant of an estate in lauds "estate is determined." (2 Bl. "or tenements, expectant upon a Com. 164.) As to the definition " particiilar estate created together of a remainder, see also Fcarnc, by " with the same at one time," Butler, p. 3, n. (c), 9th ed. (Co. Litt. 143 a); Blackstone, as (d) Co. Litt. 143a; Ecarue, by "an estate limited to take effect Butler, 308. 9th ed. 320 BK. 11. OF RIGHTS OF rROPEKTY. — PT. I. THINGS REAL. [the same thing ; upon a principle grounded in mathe- matical truth, that all the parts are equal, and no more than equal, to the whole. And hence also it is easy to collect, that no remainder can be limited after the grant of an estate in fee simple (e) ; because a fee simple is the highest and largest estate that a subject is capable of enjoying (/) : and he that is tenant in fee hath in him the ic/iok of the estate : a remainder, therefore, which is only a portion or residuary part of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all the remainders expectant thereon, is only one fee simple; as 40/. is part of 100/., and 60/. is the remainder of it ; wherefore, after a fee simple once vested, there can no more be a remainder limited thereon, than after the whole 100/. is appropriated there can be any residue subsisting.] But until the whole fee simple is granted away, any quantity of interest may be carved out of it, expectant on the determination of some preceding interest. Therefore, a remainder, like an estate in posses- sion, may be either in fee, in tail, for life, or years. From what has been premised, it appears that a rever- sion and a remainder are both estates in expectancy, but differ in this respect, that the former remains in the grantor, by act or construction of law, as part of his former ebtate, but a remainder is an estate newly created by the act of the grantor. And here it is very material to remark, that it is on/// by way of remainder that, at common law, — that is, independently of certain convey- ances founded on statute law to be hereafter mentioned, — a man can create a new freehold estate in expectancy, in a corporeal hereditament. For it is an antient rule, which lies at the root of the learning relative to re- mainders, tliat a freehold in hereditaments corporeal cannot bo created to commence in fnturo {(/) — that is, to (/•) Culthirst V. Bojushin, Plowd. (/) Vide sup. p. 235. 20 ; Garduer v. Sheldon, Vaugh. {i/) Barwick's case, 5 Eep. 94 bj 269. 2 Bl. Com. 165. CII. Vir. — OF ESTATES IN POSSESSIOX, KEVEKSIOX, ETC. 321 take effect in possession at a distant period of time — without the interposition of a particular estate on which it shall he expectant. Thus if A., seised in fee of lands, convey them to B. to hold to him and his heirs for ever, after the end of three years next ensuing ; — this is, at common law, a void conveyance. This is because no freehold could in general be created at common la\\-, in a corporeal hereditament, without livery of seisin (//) ; a ceremony in its nature incompatible with a grant of the freehold in ftitaro, inasmuch as it imports a delivery of possession, and consequently supposes that a right to the immediate possession, and not merely a futiu-e estate, is conveyed by the feoffor. And as it is the necessity for livery of seisin which constitutes the reason of the rule, so the rule itself extends not to mere chattel interests (/) : for these, being created, as we have seen, without that ceremony, are also capable (even at common law) of being- made to commence infuturo. Thus, though the fee could not be created to hold as from next Michaelmas, yet a lease for seven years from next Michaelmas would be good. But while the conveyance by livery of seisin is inca- pable (without the interposition of a particular estate) of (A) Vide sup. p. 231. The reason applied both to the immediate free- hero assigned, for the rule that a hold and to the ultimate fee. (See freehold cannot commence infuturo, the argument of Mr. Justice Black- is that usually given in the books. stone in the case of Perrin v. Blake, See Co. Litt. 217 a ; Plowd. 156 ; Ilarg. Law Tracts.) It has been Barwick's case, 5 Rep. 91 b ; 2 Bl. considered by some as in part Com. 1G5; Bac. Ab. Remainder (C) . founded on feudal reasons, but it And perhaps no sufficient authority seems to be more satisfactorily ac- can be show-n for refen'ing it to any counted for by the inconveniences other origin. It is held, however, which resulted from such suspen- by some writers to flow from the sion of the fee or freehold, in refer- general principle of the common ence to tlie system of real actions — law, that the freehold is not to be the remedies antiently used for the placed (except in cases of strict recovery of land. As to the cases necessity) in abeyance. That this where the freehold or fee maii bo principle existed there can be no in abeyance, vide sup. p. 287. doubt; and it seems clearly to have (i) oRep. Ot; Bl. Com. ubi sup. VOL. 1. V 322 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. being applied to the creation of a freehold which shall take effect in possession at a future time, its adaptation is made easy by the interposition of a particular estate, that is to saj, by creating the freehold in remainder. For the method in this case is to make the livery of seisin to the tenant of the particular estate ; which is effectual as a conveyance also to the remainder-man, since his estate and that of the particular tenant are one and the same estate in law. [Thus a man may convey to A. in tail, remainder to B. in fee, and the same livery which conveys the estate tail to A. will also pass the remainder expectant thereon to B. The whole estate passes at once from the grantor to the grantees, and the remainder-man is seised of his remainder, at the same time that the particular tenant is seised of his estate tail (/i-).] And the case is the same where the particular estate is for years only. As where one leases to A. for three years, with remainder to B. in fee, and makes livery to A. Here the livery indeed is not necessary for the lessee himself, because he has but a chattel : but it enures to the benefit of him in remainder, and the freehold is immediately created thereby and vested in B. dming the continuance of A.'s term of years (/). "With respect to the creation of a remainder, the follow- ing rules may be laid down, which, though they amount to no more than an exposition of the different properties expressed in the very definition of this kind of estate, may yet serve to convey to the mind of the reader a more pre- cise idea of its character : — 1. T/tcre mud he some ]}artlciilar estate precedent to the estate in remainder [m] . The necessity of this is suf- ficiently indicated by the term itself ; for remainder is a relative expression, and implies that some part of the thing is previously disposed of. [And as no remainder can be created without such a precedent particular estate, therefore the paiticular estate is said to support the re- {k) Co. Litt. lJ3a. {ni) Feariie, by Butler, p. 390, (/) lb. 49 a. 40 b. nth edit. CH. VII. — OF ESTATES IN POSSESSION, REVERSION, ETC. 323 [mainder. But a lease at will is uot held to Le such a particular estate as will support a remainder over (;?) . For an estate at will is of a nature so slender and precarious that it is not to he looked upon as a portion of the inherit- ance ; and a portion must first be taken out of it, in order to constitute a remainder.] 2. A second rule to be observed is this; that the re- mainder must commence or pass out of the grantor, at the time of the creation of the 2)articular estate (o). As where it is proposed to give to A. an estate for life, with re- mainder to B. in fee : here B.'s remainder in fee must pass from the grantor, at the same time with A.'s life estate in possession ; for if the estate, ulterior to that for life, continues in the grantor, it is a reversion, and no remainder ; and B. can take only by subsequent grant of this reversion. 3. It may also be laid down, as a third rule respecting the creation of remainders, that they must he limited to take effect in j^ossession immediatehj upon the determination of the ^J^rifz'cj^/ar estate, and neither later nor earlier {pi). Thus if A. be tenant for life, remainder to B. in tail, here B.'s remainder is to take effect in possession immediately upon A.'s death ; or if A. and B. bo tenants for their joint lives, remainder to the siu'vivor in fee, here, on the death of either, the remainder comes into possession instantly ; and therefore both these are good remainders. But if the future estate is to take effect in possession at any period later than the determination of the first, as if an estate be granted to A. during his life, and upon his death and one day after to B. and his heirs, this is no remainder (17). So the future estate will be no remainder if it is not to await the proper and regular determination of the first, («) Lord StafPord'a case, 8 Rop. Chudleigh's case, 1 Eep. 135 a ; 75 a. Bora«tou'8 case, 3 Hep. 21a; Co. (0) 2 Bl. Com. 167 ; Plowd. 25 ; Litt. 298 a. Litt. s. 721; Bac. Ab. Remamdcr(C) . (v) Colthirst r. Bcjushin, PIowJ. {p) 1 Sand. Uses, 148, 2iid edit.; 25 ; Feame, by Butler, 307, 9th ed. y2 324 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. but to take effect in defeasance or abridgment of it; as wliere an estate is limited to A. for life, but if B. pays bim a certain sum of money, tben immediately to B. and bis beirs (r). But tbougb a remainder cannot be limited to take effect in possession until tbe particular estate regularly determines, yet eventually it may do so before tbat period. Tbus if tbe particular estate determine by act of law (as by forfeiture) before its natural expiration, tbe remainder limited upon it will come into immediate possession, and is not required to wait until tbe expiration of tbe period originally assigned. A remainder, wben created, is subject to many of tbe rules already laid down witb respect to reversions. Tbus, in tbe case of a freebold remainder, tbe remainder-man is seised as of fee (or as of freebold), but not " in bis demesne ; " unless tbe particular estate be a term of years, wben seisin in demesne may be properly alleged. So cio'testj or doivcr may be claimed of a remainder in fee, if expectant on an estate for years, but not if expectant on a freebold. Tbus, too, tbe wrongful feoffment of tbe tenant for life or years, wbere tbe estate immediately expectant is not by way of reversion but remainder, bad, at common law, tbe effect of displacing tbe remainder, and occasioning a forfeiture to tbe remainder-man, as in tbe otlier case to tbe reversioner (s). Moreover tbe union of an estate in remainder witb tbe particular estate on wbicb it is expectant, will produce a merger in tbe same cases (in general) and on tbe same principles, as if it were an estate in reversion [t). Hitberto our remarks bave related to remainders gene- rally considered ; but it is now time to tm-n oiu* attention to tbe distinction wbicb exists between remainders, as being eitber vested or co)ttinfjent. Vested remainders or {)■) 1 Sand.XJse8, 143, 149; Sugd. p. 31G. Gilb. 152, n. ; Feame, by Butler, {t) As to the merger of a term p. 2G1, 9th ed. of years in another term of years, (*) But it is otherwise since the where the second is in remainder, passing of the statute 8 & 9 Vict. see Bac. Leases, &c. (S) 2. 0. 106 (.s. 4), as to wliich, vide snp. CII. \n. — OF ESTATES IN POSSESSION, REVERSION, ETC. 325 remainders executed are where the estate is invariably fixed to remain to a determinate person after the par- ticular estate is spent. As if A. he tenant for twenty- years, remainder to B. in fee ; here B.'s is a vested re- mainder. Contingent or executory remainders are those limited either to an uncertain person, or upon an uncer- tain eroit (u) : that is, to a person not in esse or not ascertained {x) ; or upon an event which may not happen at all, or not happen until after the particular estate is determined (y). The first kind, or those limited to an uncertain person, may be exemplified by a limitation to A. for life, remainder to the first son of B., who has then no son born (s) ; for here the person is not in esse : or to A. and B. for their joint lives, remainder to the survivor in fee ; for here the person is not ascertained {a) . The second kind, or those limited on an uncertain event, may be exemplified by a lease to A. for life, remainder to B. for life, and if B. should die before A., then the remainder to C. for life {b) ; for B.'s dying before A. is an event that may never happen, and therefore the remainder to C. is («) Blackstone says (vol. ii. ji. " limited is certain in event, Lut 1C9) that they are where the re- " the determination of the parti- mainder is ' ' limited to take effect ' ' cular estate may happen before " either to a dubious and uncertain " it. 4thly. Where the person to "^crsow, or on a dubious and iincer- "-whom the remainder is limited " tain tf few <; so that the particular "is not yet ascertained, or not " estate may chance to be deter- " yet in being." (Fearne, bj^ " mined, and the remainder never Butler, p. 5, 9th ed.) But all " take effect." (And see Roberts f. these may be reduced to two, as Roberts, 2 Bulst. 130.) Jlr. Feari:c in the text, with the aid of the enumerates foiu- different kinds distinctions there stated, as to the of contingent remainders: — " Lst. nature oi the uncertainty to which ' ' Where the remainder depends en- the person or event may be subject. " tirely upon a contingent deter- (x) Fearne, ubi sup. p. 9. Sec " minatign of the preceding estate Doe d. Bills v. Hopkinson, 5 Q. B, " itself. 2ndly. Where the contin- 228. " gency on which the remainder is (y) Feanie, ubi sup. p. 8. " to take effect is indcpendeut of {z) lb. p. 9. " thedeterminatiouofthopreceding [o) Ibid. " estate. Srdly. 'Wlicrc the condi- {b) lb. p. 7. * ' tion upon which the remainder is 326 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. contingent : or, as anotlier instance, hy a lease to A. for life, and after the death of B. the lands to remain to another in fee (c) ; for though it is certain that B. must die, his death may not happen until after A.'s life estate shall be determined. It is to be observed however, that if there be no un- certainty in the person or event upon which the remainder itself is limited, the mere uncertainty w^hether it will ever take effect in possession is not sufficient to give it the character of a contingent remainder (r/). Thus in the case of a lease to A. for life, remainder to B. for life, the limitation of the remainder is to a person in being, and ascertained, and the event on which it is limited is certain, viz. the determination of A.'s life estate : it is therefore a vested, and not a contingent, remainder (e) : and yet it may possibly never take effect in possession; because B. may die before A. We may also remark, that an estate limited to an exist- ing and ascertained person upon the determination of an estate tail, as where there is a limitation to A. in tail, remainder to B. in fee, is a vested and not a contingent remainder ; for it is considered in law, that the estate tail, being a particular estate, is sure to come to an end, and that the failure of issue is consequently not a con- tingency, but a certain event (/). The case falls, there- fore, within the definition of a vested remainder ; the estate limited to B. being one that is invariably fixed to remain to a determinate person after the particular estate is spent. It was laid down in a former place, that no remainder can be limited after a fee simple {(/), A contingent remainder may, however, be limited in suhstitulion for another contingent remainder in fee simple ; as if land be given to A. for life, and if he have a son, then to that (r) Feamc, by Butler, p. 8, 9tli cd. 2 Bos. & Tul. 29G. {d) lb. p. 216. (/) Vide sup. pp. 213, 241. {f) Ibid. ; Bcc Doe r. Scudamorc, {g) Yidc sup. p. 320. CH. All. — OF ESTATES IN POSSESSION, REVERSION, ETC. 327 son in fee, and if he have no son, then to B. in fee (h). This has been sometimes called a contingency icith a double aq-)ect (/), and it is no violation of the rule above alluded to ; for such remainder's as these are concurrent and not consecutive ; and though both are remainders on the par- ticular estate, they are not remainders on each other (Z-). It is laid down by Lord Coke, as to the natm-e of the contingency on which a remainder may be limited, that it must he 2^otentia propintjua, which he also designates as a common possibilit//, and must not be potoitia remota, by which he seems to mean a possibility that cannot reason- ably bo expected to happen (/) ; and of this doctrine Blackstone {)n) gives the following example, which is sub- stantially the same with one of those adduced by Lord Coke himself. [A remainder to a man's eldest son who hath none, we have seen, is good, for by common possi- bility he may have one ; but if it be limited in particular to his son John or Richard, it is bad if he have no son of that name, for it is too remote a possibility that he should not only have a son, but a son of the particular name.] But the rule that a remainder cannot be limited (//) SceFcamo, byButler, p. 377, see Year Eook, -10 Edw. 3, 9.) But Otliecl. ; Lodcliiigton v. Eame, 1 Lord Mr. Feame argues (and his opinion Eaym. 208 ; Keene v. Dickson, 3 is now generally received) that it T. E,. 495 ; Crump r. Norwood, 2 continues to reside in the grantor. IMai'sh. 161. (Fearne, ubi sup. p. 3.50.) V/here (i) Fearne, iibi sui). ; liodding- the contingent remainder in fee ia ton V. Kime, 1 Lord Haym. 208. created by one of those convey- (k) Though a contingent remain- ances which derive their operation der in fee is a disposition (subject from the Statute of Uses (as to which to the particular estate) of the H7(ofc hereafter), it is clear that the fee inheritance, yet, as it is one which remains in the grantor till the con- cannot take effect until the con- tingency happens ; and where it ia tingency happens, a question has created by a will the fee descends been made as to what becomes of to the heir at law. (2 Saimd. by the inheritance in the meantime. Wms. 381, a, n. (16).) According to the older authorities (/) Cholmley's case, 2 Ecp. 51; it is in abci/anci; or, according to Co. Litt. 378. Loi'd Coke's allusion, caput inter {in) 2 Bl. Com. p. 170. niibUa condif. (Co. Litt. 3-12 b; and 328 HK. II. OF KIGHTS OF PROPERTY. PT. I. THINGS REAL. upon Si potent i a remota (sometimes called a double possibilitt/ or a possibitit// upon a possibilit//) is no longer generally recognized {ii) ; and as thus exemplified, at least, is not of a satisfactory character. Contingent remainders are subject to the following two general rules : — 1. \_Tf they amount to a freehold, they cannot be limited on an estate for years, or any other particular estate less than a freehold. Thus if land be granted to A. for ten years, with remainder in fee to the right heirs of B., this re- mainder is void ; but if granted to A. for life, with a like remainder, it is good (o). Por, unless the freehold passes out of the grantor at the time when the contingent re- mainder is created, such freehold remainder is void (jj) : it cannot pass out of him without vesting somewhere ; and in the case of a contingent remainder it must vest in the particular tenant, else it can vest nowhere : unless, there- fore, the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him, and consequently the remainder is void.] 2. Every contingent remainder must become vested either during the continuance of the particular estate, or eo instanti that it determines {q). It is obvious that when the contingent person comes into (h) SceFearnc, by Butler, p. 251, " grantee dm-ingthe continuance of n. (c), 9th ed. ; Third Real Property " the particular estate, or eo instanti Hep. p. 29; Lord St. Leonards' " that it determines." And this is judgment in Cole v. Sewell, 4 Dru. the form in which it is often ex- it War. 1, 32. pressed. But where a remainder is (o) Chudleigh's case, 1 Rep. 130a. not originallj'- contingent, it is nc- {p) See Fearne, ubi sup. p. 281. cessarily vested from the tune of {q) Archer's case, 1 Rep. G6 b ; its creation ; and cannot be said Co. Litt. 298 a ; Bac. Ab. Remain- properly to vest diu'iug the con- der (D.) ; 2 Saund. by Wms. 387, tinuancc of the jjarticular estate, n. (7) ; Feame, ubi sup. pp. 307, and still less upon its dctcrmina- 310 ; 2 Bl. Com. 168, in -which tion. The rule, therefore, has, in last work the rule is laid down, as effect, no application except to to remainders f/ewwrt/Zy, thus: "that contingent remaindei's. " the remainder must vest in the CH. VII. — OF E^^TATES IX POSSESSION, REA'ERSION, ETC. 329 being or is ascertained during the continuance of the par- ticular estate, or the contingent event takes place during that period, the remainder ceases to be a contingent, and becomes a vested one. Thus if A. be tenant for life, with remainder to B.'s eldest son, then unborn, in tail ; the instant that a son is born, the remainder is no longer con- tingent but vested (/■). On the other hand, if the person comes into being or is ascertained, or the event happens, not during the continuance of the particular estate, but immediately on its determination, the remainder then of course takes effect as an estate in possession ; or, in other ■words, vests in possession, instead of vesting, as in the case first supposed, in point of interest only. Thus if land be given to A. and B. during their joint lives, remainder to the survivor in fee ; this remainder, immediately on the death of either, becomes vested in possession in the sur- vivor. The meaning of the rule under consideration is, therefore, that a contingent remainder must either vest as a remainder during the particular estate, or as an estate in possession at the determination thereof : and cannot remain in contingency after the latter period. From this the important doctrine followed, that so long as a remainder was in contingency, it always required the continninri support of the particular freehold estate (.s); so that if that estate came by any means to an end before the contingency happened, the remainder was altogether defeated (f) ; for before the happening of the contingency, there was no person entitled to take, or in whom the remainder could vest ; and, by the rule under considera- tion, it could no longer exist as a contingent remainder, because the particular estate was determined. Thus if A. were tenant for life, with remainder to B.'s eldest son, then unborn, in tail ; if A. died before the contingency (;•) 2 Bl. Com. IGO. {f) Turefoy v. Rogers, 2 Saund. (i) Colthirst V. Bejushin, Plowd. 386, 387; 2 Bl. Com. 171 ; Feamc, 25 ; Fearnc, by Butler, p. 307, 0th ubi sup. p. 316. ed. 330 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. happened, that is, before B. had a son, the remainder was absolutely gone : for the particular estate was determined before the remainder could vest («<). Nay, in one case, where A., tenant for life under a will, with remainder to his own eldest son in tail, died without issue born, but leaving his wife enceinte or big with child, and after his death a posthumous son was born, it was held that by the strict rule of law this son could not take the land by virtue of the remainder : for the particular estate had determined before there was any person actually in existence in whom the remainder could vest. This decision, however, was ultimately reversed in the House of Lords ; and the law on this subject now depends on that judgment (which referred to the case of estates devised by will) and on a statute subsequently passed (10 & 11 Will. III. c. 16), Avhich speaks of estates by marriage or other settlement, and enacts that posthumous children shall be capable of taking in remainder, in the same manner as if they had been born in their father's lifetime ; that is, the remainder is alloAved to vest in them while yet in their mother's Avomb [x). The remainder was defeated by the determination of the particular freehold estate before the contingency hap- pened, even though that estate determined prematurely, and were destroyed by the voluntary act of the particular tenant himself (//) . Thus, a tenant for life, with remainder to his unborn son in tail, remainder over to a stranger in fee, might, before a son Avas born, have destroyed the life {>() 2 Bl. Com. 169. ing the estate of the supposed heir, (.i) The case referred to iu the he takes only from the time of his teit is that of Reeve v. Long (I birth. (See 2 Savmd. by "Wms. Salk. 228 ; 4 Mod. 282). It may 387 a; Thellusson v. Woodford, 11 be noticed that where a posthumous Ves. 139; Goodtitlo v. Newman, child takes by way of remainder, 3 Wils. 520 ; Christian's Bl. Cora. he is entitled to the intermediate vol. ii. p. 169.) property from the death of the (y) Chudleigh's case, 1 Rep. parent; though, where a posthu- 135b; Archer's case, ibid. GO b. mous child takes by descent, divest- CH. VII. — OF ESTATES IN POSSESSION, IIEVERSIOX, ETC. 331 estate by a wrongful feoffment in fee, or Lave surrendered it to the person in ultimate remainder, so as to merge it in the fee : and in either case the contingent remainder to the son would have been defeated (:;) . [In these cases, therefore, it was necessary to have trustees appointed to preserve the contingent remainders, in whom there was vested an estate in remainder for the life of the tenant for life, to commence when the estate determined (a) : and then, if his estate for life determined otherwise than by his death, for example, by wrongful alienation, or by sur- render, as above supposed, the estate of the trustees for the residue of his natural life would then take effect ; and become a particular estate in possession, sufficient to support the remainder, or successive remainders, depending in contingency. This method is said to have been in- vented by Sir Orlando Bridgman, Sir Greolfrey Palmer, and another eminent counsel, who betook themselves to conveyancing during the time of the civil wars ; in order thereby to secure in family settlements a provision for the future children of an intended marriage, who, before, were usually left at the mercy of the particular tenant for life; and when, after the Restoration, those gentlemen came to fill the first offices of the law, they supported this invention within reasonable and proper bounds, and intro- duced it into general use.] When land was settled in the form here supposed, that is, by a limitation to the parent for life, and after his death to his first and other sous or children, in tail, and trustees were interposed to preserve the contingent re- mainders, this was called a strict settlement. The estate tail immediately expectant on the parent's life estate, was not only exempt from the danger of being defeated before the first son was born, but remained unalienable until he (;) Feanie, by Butler, 317, 9th vitle sup. p. 316. ed. ; Purefoy r. Rogers, 2 Saund. (a) As to the natiu-e of this rc- 386,387. As to the tortious opera- maindcr, see Parkhurst v. Smith, tion of a feoffment, at common law, Willcs, 338; 3 Atk. 138. 332 KK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. attained tlie age of twentj-one ; at that period, however, as results from former explanations (h), he might, with the concurrence of his parent, if then living, or at his own pleasure, if his parent were dead, bar both his own issue and those in remainder or reversion, and convert his estate tail into a fee simple absolute ; and, even without the concurrence of his parent, might in all cases bar his own issue, leaving the ulterior estates imdisturbed. This state of the law as regards the position of a child to whom, before his birth, a remainder in tail has been limited, ex- pectant on a precedent life estate limited to his parent, is still unaltered, though by the effect of a late statute, which we shall presently mention, the interposition of trustees to preserve contingent remainders is no longer necessary to his security. To return, however, to our immediate subject, it may be further remarked, that, to support a contingent re- mainder, it was not, even at the common law, essential that the particular estate should be in actual possession ; for, provided such an estate were in existence, it would suffice for that purpose, though it were reduced to a n'g/it of entry only {(). Thus, if there were an estate for life, with a contingent remainder over, and the tenant for life were disseised, that is, put out of his seisin or possession of the freehold by a stranger, there nevertheless resided an immediate right of entry in the disseisee ; and that would have been sufficient to support the remainder {(I). The law was said to lean against contingent remainders, as compared with vested ones, on account of the liability of the former to be defeated ; and therefore in a case of doubtful interpretation, it has been held that a remainder capable of being taken as vested, ought not to be construed as contingent {c). But the law relating to contingent (//) Vide sup. p. 251. (e) See Ives r. Leggc, 3 T. E. (f) Archer's case, 1 Ecj^. G6 b, 489, n. ; Driver v. Frauk, 3 Mau. 67 a. & Sel. 37 ; Doc d. Pilkington r. [d) Iljicl. Spratt, 5 Barn. & Adol. 731. CH. Vll. — OF ESTATES IN POSSESSION, nEVEIlSION, ETC. 33''3 remainders has uow undergone an alteration of a. very important kind, hy which much of the okl learning, to whicli we have just had occasion to refer, has been dis- placed. For by 8 & 9 Yict, c. IOC, s. 8, " a contingent " remainder existing at any time after the 31st day of " December, 1844, shall be, — and if created before the " passing of that Act, shall be deemed to have been, — " capable of taking effect, notwithstanding the determina- " tion hj forfeiture, surrender, or merger, of any preceding " estate of freehold, in the same manner, in all respects, " as if such determination had not happened" (_/'). And to this it may be added, that by an act further to amend the law as to contingent remainders, passed on the 2nd August, 1877 (40 & 41 Yict. c. 33), it has been provided, that every such remainder created by any instrument (including a will) executed after that date, which would have been valid as a springing or shifting use, or execu- tory devise, or other executory limitation, had it not had a sufficient estate to support it as a contingent remainder, shall, — in the event of the particular estate determining before the contingent remainder vests, — be capable of taking effect in all respects as if the contingent remainder had originally been created as a springing or shifting use, or executory devise, or other executory limitation [g). In connection also with the subject of contingent re- mainders, occurs that remarkable rule of construction so familiar in our books under the appellation of the Rule in Shellei/'s ease (Ji). (/) It is necessary also to advert {h) Sec tlie elaborate dissertatiou hereto 8 & 9 Vict. 0. 106, 8. 4, (vide on Shelley's case in Teame, by sup. p. 316,) providing "that a Butler, 28— 208, 9th ed. ; see, also, " feoffment made after 1st October, the observations on the rule by " 1815, shall not have any tortious Mr. Hargrave, in his Law Tracts, "operation." and the argument of Mr. Justice ((j) The nature of "springing" Blackstone, in Perrin v. Blake, iu and other executory uses is ex- the same work. The instances plained post, c. xviii. which call for its application are 334 BK. II. OF RIGHTS OF TROPEIITY. — PT. I. THINGS REAL. This rule is propounded in Lord Coke's Reports in the following form — that wherever a man by any gift or con- veyance takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his Jicirs in fee or in tail, the word heirs is a word of limitation, and not of piircliase (i). In other words, it is to be understood as expressing the quantity of estate which the party is to take, and not as conferring any distinct estate on the persons who may become his representatives. This indeed is the ordinary force of the word heirs; for, as may be inferred from the former remarks on the subject of estates of inheritance, if land is given to a man and his heirs, he takes a fee simple {j) ; if to him and the heu'S of his body, a fee tail (/.•) ; in Vv'hich eases, the wT)rd plainly operates as a mere limitation of the quantity of his estate. But where land is given to A. for his life, and on his decease to his heirs, or to tlie heirs of his body ; it might be supposed, from the doctrines we have been con- sidering with respect to remainders, that this confers a separate estate on his representatives; and that he will take for his own life only, with contingent remainder to his heirs ; or to the heii-s of his body : according to the apparent purport of the grant. And such ulterior limita- tion would in fact be a contingent remainder to them, if the previous life estate had been limited not to A. himself, but to anotlier person. By the effect, however, of the rule very numerous ; but they occui' is expressed, see Feame, by Butler, much more frequently -where the p. 76, 9th ed. The rule would seem limitation is by will, than where still to apply, though the ancestor's it is by deed. Bradley v. Cart- estate of freehold is of a natui-e Wright, Law Rep., 2 C. P. 511, that may determine in his lifetime ; and Cooper r. Kynock, ib. 7 Ch. Brook's Estates, 7G ; Fearuc, ubi App. 398, may be consulted as sup. p. 29; Curtis c Price, 12 Ves. recent cases in which this rule was 89. discussed. {j) Vide sup. p. 237. (s) Shelley's case, 1 Rep. 101 a. {k) Vide sup. ]). 245. As to tlie tcnn^' iu which the rule CTI. VII. — OF ESTATES IN POSSESSION, REVERSION, ETC. 335 wliicli we are considering, the heirs, or heirs of the hody, of A. -will not take in remainder, (in the case supposed,) nor will A. himself take a mere life estate, but a remainder also in fee or tail ; and as that remainder will absorb, ac- cording to the law of merger, his life interest, the result upon the whole conveyance will be to give him an estate in fee (or in tail, as the case may be) in possession (/). And upon the srane principle, if another particular estate, by way of vested remainder upon xV.'s life estate (for ex- ample, a life estate to B.),be interposed before the ulterior limitation to A.'s heirs, or the heii's of his body, that ulterior limitation will take effect in A. himself ; but as a vested remainder only in fee or tail, because the intervening estate will in that case prevent a merger. If the estate interposed, indeed, be not a vested but a contingent re- mainder, A. will take (as in the case first supposed) the entire fee ; for while the contingency is in suspense, there is nothing to prevent the consolidation of his life estate with the ulterior limitation to his heu's; yet he takes it sub modo only, that is to say, it will, (under the stat. 8 & 9 Yict. c. 106,) open and let in the intermediate estate when the contingency happens (ni). It is to be observed, that the interest which, by the effect of this rule, passes to the ancestor, is of a kind very different from that which would belong to him if the words were to receive their more obvious construction. According to the rule, he becomes, in the first case we have supposed, proprietor of the whole fee, which it is consequently in his power to aliene at his pleasure (sub- ject, where the estate is in tail, to the ordinary restric- tions) ; and in the two other cases, his interest is of the same description, except as regards the intervening estate : while, on the other hand, if he took an estate for life only (though with remainder to his heirs), he could aliene for (/) Vide sup. pp. 81G, 318, 33?. (w) Fearne, by Butler, p. 29 ; Lewis Bowles's ease, 11 Eep. 79 b. o'36 BK. II. OF RIGHTS OF PROPERTY. — PT. T. TTIIXGS REAL. no longer period tlian his own life, and lie would have no control over the inheritance, — apart, of course, from statute. With respect to the reason of the rule, it is involved in much obscurity (n). But according to the prevalent opinion, it was established with a -view to the protection of the feudal lord, who would have been defrauded, it is said, of his wardship and other perquisites, if the heir had been allowed to take by way of remainder, and not by hereditary succession. And the argument by which it is best supported seems to be in substance as follows : that w^here by the same conveyance land is given to a person for his life, and afterwards to the heirs of the same person, it is reasonable to presume that he is himself intended in both cases as the sole object of the gift; and that no benejfit is designed to his heirs, exeei)t what they may derive by operation of law from his own antecedent seisin. We shall conclude this chapter with notice of two legis- lative provisions, — one intended for the protection of those who are possessed of rcrevsionanj interests, the other to ascertain the rule which is to govern the disposal by sale of such interests, whether in real or personal estate. ]. [By 6 Anne, c. 20, in order to assist such persons as have any estate in remainder, reversion, or expectancy after the death of others, against fraudulent concealment of their deaths, it is enacted that all persons on whoso lives any lands or tenements are holden shall (upon ap- plication to the court and order made thereupon) once in every year, if required, be produced to the court or its commissioners ; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold tlie lands and tenements till the party sliall appear to be {)>) See Feame, by Butler, p. 83; in Ilurgravc's Law Tracts; Hist, argument of Mr. Justice Black- Eng. Law, by Reeves, vol. iii. stone in the case of Prrrin v. Blake p. 8. en. VII.-OF ESTATES IX POSSESSION, RKVERSIOX, ETC. 337 Hiving (0).] 2. B^ 31 Vict. c. 4, it has been proviaed hat no purchase of any reversionary interest, made Land Jidc and without fraud or unfair dealing, shall hereafter be opened or set aside merely on the ground of nnder-valae -a circumstance, which as the law was previously ad- mmistered in the courts of equity, was in some cases held to vacate the transaction {p). Jlr' *^ f'l" '*'*''*'' ''' ^-^ ^^) ^^'^^'^ -• Cook, L R 10 parte Grant, 6 \es. 512; Ex parte Eq. C41 ; Tyler . Y. tes l'r * mM. A, u. 11, Re Lingen. 12 1.5 Ch. Div fi/O Sim. 104. °-- ^^Ch. Div. 679 \(M.. 1. S38 BIv. IT. OF RIO UTS OF PROPETITY. — PT. I. TI11^(':S REAL. CHAPTER VIII. OF ESTATES IN SEVERALTY, JOINT-TENANCY, CO- PARCENARY, AND COMMON. [We come now to treat of estates, with respect to the number and connection of their owners, the tenants who occupy and hold them [n). And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or in expectancy, may be held in four different ways ; in severalty, in joint-tenancy, in coparcenary, and in common. I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest during his estate therein. This is the most common and usual way of holding an estate : and therefore we may make the same observations here that we did upon estates in possession, as contradis- tinguished from those in expectancy, in the preceding chapter : that there is little or nothing peculiar to be re- marked concerning them, since all estates are supposed to be of tliis sort, unless the contrary is expressed ; and in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. We shall therefore proceed to consider the other three species of estates, in whicli there is always a plm-ality of tenants.] [ii) Yiflo snp. p. 220. en. viii.--EsTATi:s in severalty, .toint-texancy, etc. 3'jO All the three last-mentioned species of estate have this common characteristic, — that the tenants hold 2^ro iudiviso, or promiscuously {b). So that one person is not seised or possessed exclusively of one acre, and another person of another, (for then they would be tenants in severalty,) but the interest and possession of each extend to every specific portion of the vdiole land of which they are joint- tenants, coparceners, or tenants in common. And accord- ingly, though only one of them should happen to be in actual possession, yet his possession is considered for many purposes as that of all {c). But in many points of view these different species of estate are materially distinguish- able from each other in their character and properties, and it will be necessary therefore to consider them separately and in succession. II. An estate then in joint-tenancy is where an estate is acquired by two or more persons in the same land, by the same title (not being a title by descent), and at the same period ; and without any limitation by words im- porting that they are to take in distinct shares (r/). Thus, if there be a conveyance of lands to A. and B., without more, this makes them joint-tenants of the freehold ; if to A. and B. and their heirs, this makes them joint-tenants of the fee. [The estate so acquired is called an estate in joint-tenancy (e), and sometimes an estate in Joiiifuir, {b) Co. Litt. 189 a, 190 b, 163 a. for his or their owu benefit, or (<■) See Doe v. Taylor, 5 Barn. & for the benefit of any person or Adol. 583 ; Ford v. Grey, 1 Salk. persons other than the person or 285 ; Doe v. Keen, 7 T. R. 386 ; persons entitled to the other share Doe V. Pearson, 6 East, 173. Bnt or shares, such possession shall not by the Limitation Act, 3 & 4 be deemed to have been the posses- Will. 4, c. 27, s. 12, if one or moi'e sion of such last-mentioned person of several persons entitled as co- or persons, or any of them, parceners, joint-tenants, or tenants {d) As to this estate, see Co. in common, shall have been in the Litt. 180 a — 188 b. possession of the entirety, or more (c) Litt. e. 277. than his undivided share, or shares 340 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. [whicli word, as well as the other, signifies an union or conjunction of interest ; though in common speech the term jointure is usually confined to that estate, which, by virtue of the statute 27 Hen. YIII. c. 10, is sometimes vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower (_/'). This estate of joint-tenancy has several conditions and properties, which require to be distinctly pointed out before a just conception of its nature can be attained. 1. Among joint-tenants there is a iinity of title [g), that is, their estate must be created by one and the same act, whether legal or illegal, — as by one and the same grant, or by one and the same disseisin (7^).] 2. The estate of joint-tenants vests in them at one and the same 2)eriod(i). Thus, if an estate be granted to J. S. for life, with re- mainder to A. and the eldest son of B. (B. having no son at the time), and their heirs, A. does not take in joint- tenancy with B.'s eldest son ; because A. takes a vested remainder in a moiety immediately on the execution of the conveyance, while the remainder in the other moiety does not vest until a son is born to B. ; nor at all if J. S. dies first. And even if a son is born to B. in J. S.'s life- time, still A. had up to that period no joint interest with him ; and the tenancy, not being ab initio a joint-tenancy, cannot become so afterwards. On the other hand, in a case of remainder to A, and B. and their heirs, after a previous life estate, they take in joint-tenancy, because they both take at once a vested remainder. 3. Among joint-tenants there is also a similarity of interest as regards the quantity of estate. One joint-tenant cannot be entitled (/) Vide sup. pp. 272 et seq. estates raised by way of use or {(j) 2 Bl. Com. 181. devise (as to which vide post, bk. ii. (/*) Litt. s. 278. pt. I. cc. XVIII., xx.), see Feame, (i) El. Com. ubi sup. ; Co. Litt. by Butler, 312, 9th ed. ; Co. Litt. 188 a. But with respect to the by Harfj. 188 a, n. (13). applicability of this doctrine to Cll. VI 11. — ESTATES IX SEVERALTY, JOIXT-TENAMY, ETC. Mi to one period of duration or quantity of interest in lands, and the other to a different ; one cannot be tenant for life, and the other for years ; one cannot be tenant in fee, and the other in tail (k). Yet there may be joint-tenants as to a portion of the fee, with a several interest in one or more of them as to the residue. Thus, if land be granted to A. and B. for their lives, and to the heirs of A.; here A. and B. are joint-tenants of the freehold during their joint lives, and A. has a several inheritance in fee simple ; or if land be given to A. and B., and the heirs of the body of A.; here both have a joint estate for life, and A. has a several inheritance in tail(/). 4. There is an en firefi/ and equalift/ of interest among the tenants ; for while they con- tinue to hold together, they are not considered as holding in distinct shares, but each is equally entitled to the ic/iote. And, on the other hand, though the entirety ceases for the purpose of alienation, every co-tenant being entitled (if he thinks proper) separately to transfer his own share, yet the erj^uaHty remains ; for each is capable of conveying an equal share with the rest. This combination of entirety of interest with the power of transferring in equal shares, is expressed by the antient law maxim, that every joint-tenant is seised per my et per tout {in). And this is considered as an essential charac- [k) Co. Litt. ubi sup. tion) an entire inheritance, not {I) Litt. s. 285. Black.stone's broken into a particular estate and expression (vol. ii. p. 181) is, that remainder thereon. (Co. Litt. 184 b, "A. has the remainder in sevo- and note 2, by Harg. ; Wiscot's ralty" in these cases. But Little- case, 2. Rep. 60 b.) See also For- ton says, "one hath a freehold and rest v. Whiteway, 3 Exch. 367. the other a fee-simple," and Lord (m) Blackstone (vol. ii. p. 182) Coke, that "they are joint-tenants gives, as the meaning of this ex- "for life, and the fee-simple or pression, that each has " the entire "estate tail is in one of them;" possession, as well of every parcel and though a joint-tenancy for life as of the whole," and in this he subsists with all the usual incidents, follows the words of Littleton, yet the estate of the joint-tenant, s. 288. Li commenting on the who has the fee, is for many pur- words, per m>j et per tout, Lord poses (particularly that of aliena- Coke (citing Bracton) remarks, ''J42 15K. 11. i)F KR-lliS OF I'KOFEKTY. — PT. I. THINGS HEAL. teristic of a joint estate; and therefore if an estate in fee were given to a man and liis wife, they were not properly joint-tenants, but were tenants hj cnfiirfies ; for husband and wife being considered as one person in law, they could not take the estate by moieties, but both were seised of the entirety, jjer tout et non 2)er my ; the consequence of which was, that neither the husband nor the wife could dispose of any part without the assent of the other, but the whole remained to the survivor (;?). And so if a joint estate in land was conveyed to a husband and wife, and to a third person, the husband and wife took a moiety, and the third person the other moiety, in the same manner as if the grant had been to only two persons (o). But it appears to result from the Married Women's Property Act, 1882 (/)), that as regards property the title to which is conferred by a deed or will executed after the 31st December, 1882, husband and wife are no longer to be considered as one person in law, but as two distinct persons [q) ; consequently, husband and wife would in the cases supposed be joint- tenants simply and not tenants by entireties, and each would take an equal share, not only as between themselves, but also quoad any third party made a co-tenant with them. And even under the old law, if a grant were made to husband and wife expressly to hold as tenants in com- mon, they would have held accordingly (/■). " iY sic totuni tenet, et nihil tenet, Est. 131 ; and see Back r. Andrew, scil. totum conjunctim et nihil per se 2 Veni. 120 ; Purefoy v. Rogers, 2 scparatim." " And albeit they are Lev. 39; Greneley's case, 8 Rep. " so seised, as for example, where 71 b; Beaumont's case, 9 Rep. 138; " there bo two joint-tenants in fee, Doe v. Parratt, 5 T. R. 6o2. " yet to divers purposes each of {o) Litt. s. 291. "them hath but a I'ight to a {p) 45 & 46 Vict. c. 75. "moiety, as to enfeoff, give, or (y) Mander v. Harris, 24 Ch. "demise, or to forfeit, &c." (Co. Div. 222 ; 27 Ch. Div. 166; and Litt. 186 a.) See also Murray v. compare Symonds v. Hallott, 24 Hall, 7 C. B. 455, n. («). Ch. Div. 346 ; Riddell v. Errington, («) Litt. s. 665 ; Co. Litt. 187b ; 24 Ch. Div. 220. Bro. Abr. t. cui in vita, 8 ; 1 Prest. (>■) Co. Litt. 187 b. CH. Till. — ESTATES IN SEA'ERALTY, JOINT-TENANCY, ETC. 343 [From the entirety of interest in each of the co-tenants results the incident or consequence of siin-ivorship. For when two or more persons are seised of a joint estate of freehold, or are jointly possessed of any chattel interest in lands, the entire tenancy, upon the decease of any of them, remains to the survivors, and at length to the last survivor ; and he shall be entitled to the whole estate (s). One has not a distinct moiety from the other, but while the joint-tenancy continues each joint-tenant has a con- current interest in the whole ; and therefore it is that on the death of his companion, the sole interest in tlie whole remains to the survivor. For the interest which the sur- vivor originally had, is clearly not divested by the death of his companion ; and no other person can now claim to have a, Joint estate with him, sci/., an interest in the whole, accruing by the same title ; nor yet a separate interest in any part of the tenements ; and as no one can now be admitted, either jointly or severally, to any share with him therein, it follows that his own interest is entire and several, and to the whole estate.] The right of survivorship is called by om- antient authors the jus accresceiidi, because the right, upon the death of one joint-tenant, accumulates and increases to the sur- vivors ; or, as they themselves express it, " pars ilia com- inunis accrescit supersfitibus, de persona in persojiam, usque ad ultimam superstitem^' (t). And the rule is that Jus accresecndi praifertur oneribus (u) ; so that no dower or cur- tesy can be claimed out of a joint estate (.?■). Indeed even where one of the joint-tenants aliened his share (which discharged it from any claim of his co-tenant in respect of («) Litt. ss. 280, 281. one aud the same cause, asbyship- {t) Bracton, 1. 4, tr. 3, c. 9, s. 3 ; ^vreek. See Wing v. Angi-ave, 8 Flcta, 1. 3, c. 4, s. 2. It may de- H. of L. Cas. 183. serve remark, that in English law («) Co. Litt. 185. there is no presumption as to sur- {x) As to doicer and curtesij, vido vivorship from age or sex among sup. pp. 264, 267. persons whose death happened by 344 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. gurvivorsliip) , j^et tlie wife of tlie alienor was not (even under tlie old law) entitled to her dower {[/) ; for the land never was in his seisin, except as subject to the paramount claim of the survivor ; and therefore there was no such sole seisin as that the dower could arise out of (z). An estate in joint-tenancy may be dissolved or de- stroyed : — 1. -Sy partition. Thus, if two joint-tenants agree to part then- lands, and to hold them in severalty, the effect thereof is to make them no longer joint-tenants, for they no longer hold promiscuously ; and the right of survivorship, also, is by such separation destroyed [a). But with regard to such a transaction, the 8 & 9 Vict. c. 106, s. 3, provides, that a partition of any tenements or here- ditaments (not being copyhold) made after the 1st October, 1845, shall be void at law unless made by deed. By the common law all the joint-tenants might agree to make partition of the lands, but one of them could not compel the other so to do {!)) ; for this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession without the consent of the others. But by the statutes 31 Hen. VIII. c. 1, and 32 Hen. VIII. o. 32, joint-tenants were, in case of refusal by any of them, made compellable by ictif of jmrtition to divide their lands ; and though this writ, together with the other antient forms of real action, was abolished by 3 & 4 Will. IV. c. 27, s. 36, joint-tenants are still compellable by action to make partition, scil., by proceedings in equitij, praying or claim- ing that relief (r). 2. \_The jointure may he destroyed by {!/) Co. Litt. 31 b, and ii. 1, by n. (2) ; 1 Foubl. Tr. Eq. 18. As JIarg. to the partition of copyhold and [z) As to the necessity for the customary estates, see 4 & 5 Vict, husband's seisin, vide sup. pp. 269, c. 35, s. 85. It may be added, 270. that the subject of partition has . (a) Co. Litt. 188 a, 193 a. been recently regulated by 31 & 32 {h) Litt. s. 290. Vict.c. 40 (the Partition Act, 1868), \c) Co. Litt. by Harg. 109 a, and by 39 & 40 Vict. c. 17, which (11. VIll. — ESTATES IN SEVERALTY, JOINT-TENANCY, ETC. 84'J [aUi'uation !cit/ioi(t parfifion. As if one joint-tenant alienes and conveys his estate to a third person ; here the joint- tenancy is severed, and turned into tenancy in common ; for the grantee and the remaining joint-tenant hold by different titles, — one derived from the original, the other from the subsequent, grantor ; though, till partition made, the undivided tenancy continues (d). And so if one of two joint-tenants releases his share to the other, the joint- tenancy is dissolved, and turned to an estate in seve- ralty (e). But a devise of one's share by will is no severance of the jointure, the Jus accrcsccudl being pre- ferred ultimce vohoifafi (/) ; for no testament takes effect till after the death of the testator ; and by such death, the right of the survivor, which accrued at the original creation of the estate, and has therefore a priority to the other, is already vested (r/). 3. T/ie jointure may aho he destroyed by an accession of i)itered. Thus, if there be two joint-tenants for life, and the inheritance is pur- chased by or descends upon either, it is a severance of the jointure, for such event renders their interests dis- similar as regards the quantity of estate {h) ; though, if an estate is originally limited to two for life, and after to among other x>i'ovisious give laower 9 Eq. Ca. 227 ; Evans v. Bagshaw, to the court to order a sale and ib. 5 Ch. App. 340 ; "Wilkinson ;•. distribution of the proceeds, in Jobems, ib. 16 Eq. Ca. 14 ; Grove place of a division of the property, v. Comyn, ib. 18 Eq. Ca. 387; where such a course is desu'able. Drinkwatcr v. Ratcliffe, ib. 20 Eq. And where the property does not Ca. 528 ; Gilbert v. Smith, 8 Ch. D. exceed a certain amount in value, 518; 11 Ch. D. 78; Burnell v. the proceedings may be in the Bm-nell, 11 Ch. D. 213. cotmty court of the district. The [d) Litt. s. 292. cases which have arisen, on various {e) See Avery v. Cheslyii, 3 Ad. points connected with partition, are & El. 75. numerous. See, amongst others, (/) Co. Litt. 185 b. And see Landcll r. Baker, Law Eep., G Eq. Swift v. Roberts, 3 Buit. 1488; Ca. 268 ; Osborn v. Osborn, ib. 338 ; Ambl. 617. Miller v. Marriott, ib. 7 Eq. Ca. 1 ; [g) Litt. s. 287 ; 3 Burr. 1488 ; Lys V. Lys, ib. 126 ; Slade v. Bar- Co. Litt. ubi sup. low, ib. 296; Peters t\ Bacon, ib. (A) Cro. Eliz. 4 70. 8 Eq. Ca. 125 ; Silver v. Udall, ib. 346 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THOGS REAL. [the heirs of one of tliem, tlie freehold shall remain in jointure, without merging in the inheritance; because, being created by one and the same conveyance, they are nOt separate estates (which is requisite in order to a merger), but branches of one entire estate (/) . It is prox^er to add, that whenever or by whatever means the jointure ceases or is severed, the right of survivorship or Jus accrescendi the same instant ceases with it [Jc). Yet, if one of three joint-tenants alien es his share, the two remaining tenants, as between themselves, still hold their parts by joint-tenancy and survivorship (/) ; and if one of three joint-tenants releases his share to one of his com- panions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts are still infer se held in jointure (w). In general it is advantageous for the joint-tenants to dissolve the jointure ; since thereby the right of survivor- ship is taken away, and each may transmit his own part to his own heirs. Sometimes, however, it is disadvantageous to dissolve the joint estate : as if there be two joint-tenants for life, and they make partition, this dissolves the join- ture ; and, though before they each of them had an estate in the whole for his own life and the life of his companion, now each has an estate in a moiety only, for his own life merely ; and on the death of either, the reversioner shall enter on his moiety {n). III. An estate held in coparcenary is where lands of inheritance descend from the ancestor to two or more per- sons (o) . It arises either by common law or by particular custom. By common law : as wliere a person seised in fee simple or in fee tail dies, and his next heirs are two or (*) Wiscot's case, 2 Eep. 60 : (/) Litt. s. 294. Co. Litt. 182 b. (w) lb. s. 304. [k) '■^ Nihil de re accrescU ei, qui («) 1 Jones, 55; Co. Litt. 191a, nihil in re qticmdo jus accresccret {<>) As to this estate, see Co. Litt. hahety—Qo. Litt. 188 a. IG3 a— 180 a. (11. Vlll. — KSTATES IX SinEKALTV, .lOIXT-TEXANCY, ETC. 347 [more females, bis daughters, sisters, aunts, cousins, or their representatives ; in this case thej shall all inherit, as will be more fully shown, when we treat of descents hereafter ; and these co-heirs are then called coparceners, or, for brevity, parceners only (/>) ; though in some points of view the law considers them as together making only one heir (g). Parceners by particular custom are where lands descend, as in gavelkind, to all the ma/es in equal degree, as sons, brothers, uncles, &c. (r).] An estate in coparcenary resembles, in some respects, that in joint-tenancy, there being the same unity of title and similarity of interest. But in the following respects they materially differ: — 1. Parceners always claim by descent, whereas joint-tenants always claim by the act of parties. Therefore, if two sisters purchase- lands, to hold to them and their heirs, they are not parceners, but joint- tenants (.v) ; and hence it likewise follows, that no lands can be held in coparcenary but estates of inheritance, which are of a descendible nature ; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no entirety/ of interest among coparceners. They are properly entitled each to a distinct share (t), and of course there is no Jus accrescendi or sur- vivorship between them, for each part descends severally to their respective heirs, though the undivided tenancy continues. And as long as the lands continue in a course of descent, and are held promiscuously, so long are the tenants therein, whether male or female, called parceners. 3. Though the interest of coparceners accrue by the same title, yet t/ic// ma// accrue at different periods. For if a man hath two daughters, to whom liis estate descends in co- parcenary, and one dies before the otlier, the surviving daughter and the heir of the other, or when both are (p) Litt. ss. 241, 2-12. (r) Litt. s. 2(35. (-?) Co. Litt. 163 b, 164 a; Viu. (s) lb. s. 254. Ab. Parceners (Q) ; and see R. v. [t) Co. Litt. 163, 164. Bonsall, 3 B. & C. 173. 343 BK. II. OF RIGHTS OF TROPERTY. — PT. I. THIXGS REAL. dead, their two heirs, are still parceners (u) ; the estates vesting in each of them at different times, thongh it be the same quantity of interest, and held by the same title. 4. And lastly, though persons related in equal degree to the ancestor are entitled in equal shares, yet as their heirs will represent them, or stand in their place, there is no necessary cqnalitij of interest among parceners. Thus, if a man die leaving four grand-daughters, three of them the issue of an elder daughter, and one of a younger, all four shall inherit ; but the daughter of the younger shall take as much as all the other three (.r). [With respect to an estate in coparcenary, the following rule deserves notice : that if one of two or more sisters, to whom lands descended in coparcenary, held an estate which had been given to her in franlimarriage {//) by the same ancestor from whom the lands thus descended to her, she could not take her share of them without first adding to them her estate in frankmarriage, in order that the whole property might be equally divided between all the sisters (~). This mode of division was known in the law of the Lombards, which directs the woman so preferred in marriage and claiming her share of the inheritance, " niittere in con/asuni cum sororibus, qucnitxm prtfo' roit f rater ei dederit, qnando ainhutaverit ad mciritum " [a). With us it is denominated bringing those lands into hotehpot {h) ; which term shall be explained in the very words of Littleton (c) ; " It seemeth that this word, hoich- " 2mt, is in English a pudding ; for in a pudding is not " commonly put one thing alone, but one thing with other *' things together." By this housewifely metaphor our ancestors meant to inform us that the lands, both those given in frankmarriage and those descending in fee simple, should be mixed and blended together, and then divided (m) Co. Litt. 164, 174. 266—273. {x) lb. 164 b. {n) L. 2, t. 14, c. 1.5. {y) Vide sup. p. 244, n. (*) Britton, c. 72. [z] Bracton, 1. 2, c. 34 ; Litt. ,ss. \c) Litt. s. 267. CH. VIIT. — ESTATES IN SE\ERALTY, JOIXT-TENAN'CY, ETC. 349 [in equal portions among all the daughters {•) Where several parties take regard to decreeing a sale instead under the same title by descent, ac- of di^-iding the property, are the cruing at different periods, they same as in the case of a joint hold in coparcenary. Vide sup. tenancy as referred to, sup. p. pp. 346, 347. 344, n. (c). (s) As to tenants in common, see (p) Co. Litt. lG4b, 165 a. Co. Litt. 188 b— 201 a; Mun-ay v. {q) 2 Bl. Com. 191 : Doe v. Dixon, Hall, 7 C. B. 441. 5 Ad. & El. 839. '352 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. equoJify of interest, for one tenant in common maj liold in fee-simple, and the other in tail or for life ; one may be entitled to two-thii-ds, and the other to one-third. Nor is there any entirety of interest, for each is seised or pos- sessed of a distinct (though undivided) share ; from which also it follows that there is no surcivorshlp (/). The union consists only in this, that they hold the same land promiscuously. [Tenancy in common may be created by the destruction of an estate held in joint-tenancy, or of one held in copar- cenary, or by special limitation in a deed. By destruction is here meant not such a destruction as brings the joint estate into two or more estates in severalty, but such as puts an end only to the jointure or coparcenary : as if one of two joint-tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common ; for they now have several titles, the other joint-tenant by the original grant, the alienee by the new alienation {u). So, if one joint-tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as liolding by different titles and conveyances {x). If one of two parceners alienes, the alienee and the remaining parcener are tenants in common [y) ; because they hold by different titles, — the parcener by descent, the alienee by purchase. So like- wise, if there be a grant to two men, or two icomen, and the heirs of their bodies, here the grantees shall be joint- tenants of the life estate, but they shall have several in- heritances {z) ; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and icoman, and the heirs of their bodies begotten {a) : and in this, and the like cases, their {t) Land, however, may be given (x) lb. s. 295. to two persons in such manner as (i/) lb. s. 309. to make them tenants in common {z) Doe v. Green, 1 II. & II. 314; •with benefit of survivorship. (Doe vide sup. p. 340. V. Abey, 1 Mau. & Sel. 428.) (ft) Litt. s. 283. (») Litt. 8. 292. CH. VIII. — ESTATES IN SEVERALTY, JOINT-TENAXCY, ETC. 353 [issues shall be tenants in common ; because they must claim by different titles, one as heir of A., and the other as heir of B. ; and those, too, not titles by purchase, but descent. In short, whenever an estate in joint tenancy or coparcenary is dissolved, so that there be no partition made, but the undivided tenancy continues, it is turned into a tenancy in common.] A tenancy in common may also be created by express limitation in a conveyance: but here care must be taken to insert words implying that the grantees are to take dis- tinct, though undivided, shares ; for a grant without such words would give a joint estate. And it is laid down in our books that the common law, in its rules of construc- tion, favoured joint-tenancy rather than tenancy in com- mon {b) ; because the divisible services issuing from land (as, for example, rent,) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, — as they must necessarily be upon a tenancy in common. Yet where land was given to two, to be holden the one moiety to one, and the other moiety to the other, this was an estate in common (c) ; and, where one granted to another half his land, the grantor and grantee were also tenants in common (f/) ; — because, as has been before observed, joint- tenants do not take by distinct halves or moieties (e) ; and by such grants the division and severalty of the estate is so plainly expressed, that it is impossible that they should take a joint interest in the whole of the tenements. But, on the other hand, an estate given, in a conveyance infer ricos at common law, to A. and B. equal/// to be divided between them, was said to be a joint-tenancy (/"), as it implies no more than what the law has annexed to that estate, viz. divitiibility {g). Such a limitation, however, in a will or in a conveyance founded on the Statute of Uses, (of v.'hich we shall have occasion to treat hereafter,) is certainly {h) Fisher v. Wigg, Sulk. 392. ('•) Vide sup. p. 340. {(■) Litt. s. 298. (/) 1 Eq. Cas. Abr. 291. (r/) lb s. 299. [fj) Fishei-i'.Wigg, iP.Wms. 17. \0i,. I. A A 354 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. a tenancy in common (/?) ; for if tlie tendency of the antient law was to favour a joint- tenancy, the leaning in later times — and particularly of equity — has been the other way (?) ; the right of survivorship being often incon- venient and harsh in its effects. And therefore in wills and the conveyances above referred to — both of which came into use in comparatively modern times, and with regard to which a more hberal construction is in some respects allowed, than in the case of common law con- veyances — a tenancy in common will be created by words which at common law would operate as a limitation in joint-tenancy. We may take this opportunity of remarking, that when lands are given to two or more as tenants in common, it frequently happens that a particular estate is limited to each of the grantees in his share, with remainder over to the other or others of them — as if a man give lands to his two children as tenants in common in tail, and direct that upon failure of the issue of one of them his share shall go over to the other in tail, and vice versa. Such ulterior estates as these are called cross-remainders, be- cause each of the grantees has recij)rocally a remainder in the share of the other ; and it is a rule respecting them, that in a deed they can be given only by express limita- tion, and shall never be implied (/»•) ; though it is other- wise with respect to uiUs, which are here, again, expounded more liberally, with a \'iew to the presumable intent of the donor. Hence in these, cross remainders may be raised not only by actual limitation, but by any expression from which the design to create them can reasonably be inferred (/). (/i) SeeCo. Litt. byHarg. 190 b, C. C. 25; Fisher v. Wigg, 1 P. n. (4) ; 1 Sand. Uses, 126 ; Rat- Wms. 14. clifFe's case, 3 Rep. 59 b ; 1 Ventr. (/.) 1 Saund. by Wms. 185, n. (6) ; 32 ; Goodtitle v. Stokes, 1 Wils. Cole v. Levingston, 1 Vent. 224 ; 341. Doe v. Worsley, 1 East, 416. (i) See Joliffe v. East, 3 Bro. [1) A learned disquisition on the CII. YIII. — ESTATES JS SEVERALTY, JOIXT-TENANCY, ETC. 355 A tenancj in common may be dissolved, in the first place, bi/ partition; for tenants in common, like joint- tenants, were compellable by the statutes of 31 Hen. VIII. c. ], and 32 Hen. VIII. c. 32 (though not at common law), to divide their lands by writ of partition {m) ; and since the abolition of that writ, they may be driven to a partition by means of proceedings in equity (;?) . They may also effect a partition by mutual agreement without having recourse to the court, though by 8 & 9 Vict. c. 106, s. 3, it is now made essential that such partition shall be hy deed [o) . A dissolution of the common tenancy may also be brought about hi/ uniting all the titles and interests in the estate held in common in one tenant, by purchase or otherwise, which brings the whole to one severalty. nature of cross -remainders ■will be joint or held in common. It may- found in 1 Prest. Est. 94, 115; and be noticed here that partitions may- see Co. Litt. 195 b, n. (1), by Butler. also be effected, in some cases, by {m) Vide sup. p. 344. the orders of the InclosHre Commis- (h) Vide sup. p. 344, n. The sioners, as to -whom vide post, cap. provisions mentioned there apply to xxttt. the partition of an estate, -whether (o) Vide sup. p. 344. A 2 356 BK. II. OF RIGHTS OF PROPERTY. — PT, I. THINGS REAL. CHAPTEE IX. OF USES AND TRUSTS. The modes of ownership liitlierto considered all belong to the division of legal estates, to which our attention was in the first instance to be directed {a). And we may also remark of them, that they constitute the prhnary and jjvopcr forms of property in land : having been known in this country from the earliest era in the history of the Anglo-Norman jm^isprudence, while all others are of con- siderably later introduction. But it is now time to take notice of those of the cquitahle kind ; which, in relation to the former, are not only of posterior but of derivative origin, and proportionally more complex and artificial in their character : though unmixed, on the other hand, with those principles of feudal tenure fundamentally inherent, as we have seen, in the legal or common law estates. The only example of equitable estate to which we have hitherto had occasion to refer, is that which resides in a person, who, having conveyed his land by way of mortgage, is still entitled to the equity of redemption (h). But other interests of a various and somewhat intricate nature remain to be examined, which are embraced under the general appellation of Uses and Trusts. Uses and trusts were in their origin closely united, but not identical (c). A trust was the confidence reposed by [a) Vide sup. p. 230. 1 Sand. Uses, p. 203 ; Tluuket v. ib) Vide sup. p. 304. An equity Penson, 2 Atk. 290. of redemption is said to be a title (c) As to the manner of the in- in equity, and not merely a trust ; troduction of uses into our law, CHAP. IX. — OF USES AND TRUSTS. 357 one man in another wlien lie invested liim with the nominal ownership of property, to be dealt wath in some particular manner, or held for some particular person or pm-pose pointed out. If the trust w-as of a certain description, viz., to hold land for the benefit of another person, generally, and to let him receive the profits ; the sort of interest or right which consequently attached to the latter person was called a use, to distinguish it from the nominal ownership or estate of the trustee {d) . [The general idea of a use or trust answered more to the ficlei coinmissum than to the usus fructus of the civil law {e) ; which latter was the temporary right of using a thing without having the ultimate property or full dominion of the substance (,/) : but the fidei commissum (which usually was created by will) was the disposal of an inheritance to one in confidence that he should convey it, or dispose of the profits, at the will of another {g). The right of the latter was originally considered in the Itoman law as jus precarium [h) — that is, one for which the remedy was only by entreaty or request ; but by sub- vide Hist. Eng. Law, by Reeves, vol. iii. p. 364, vol. iv. pp. 340, 516, 520; Co. Litt. by Butler, 271 b, n. (1), 290 b, n. (1). {d) The books are rather vague in their account of the origiaal meaning of these terms. Black- stone says that "Uses and trusts " were in their original of a nature "very similar, or rather exactly " the same " (vol. ii. p. 327). There can be no doubt, however, that there might be "trusts" which in- volved no "uses," in the proper meaning of that term. Thus Lord Bacon expressly distinguishes a use from a " special " or " transitory " trust. — (Bac. Read. Us.) Again, a " trust " was referable rather to the person in whom the confidence was reposed, while a " use " was rather referable to the person for whose benefit it was reposed. Thus it is said by Ld. Ch. Baron Gilbert, ' ' That a use is the equitable right to " have the profit of lands, the legal ' ' estate whereof is in the feoffee, "only to the trust and confidence "reposed in him." — (GUb. Uses, ed. by Sugd. 374.) And again Ld. Bacon remarks, ' ' For a trust, which is the xvay to a use, it is exceedingly well defined by a civilian of great understanding, — -Fides est obligatio conscicnti(e unius ad intentionem alterius.'^ — Bac. Read. Uses.) (c) Gilb. Uses, by Sugd. 3, (n.). (/) Ff. 7, 1. 1. iff, Inst. 2, t. 23, .ss. I, 2. (//) 1 Cruise, Dig. 394. 358 BK. II. OF KIGHTS OF PROPERTY. — PT. I. THINGS REAL. [sequent institution it acquired a different character (/). It then became jus fiduciaymm, and entitled to a remedy from a court of justice, and it was the business of a par- ticular magistrate, the prcetor Jideicommissarius, to enforce the observance of these confidences (A-).] This notion of a use was transplanted into England from the civil law, about the close of the reign of Edward the third (/) ; and by the means of the foreign ecclesiastics, W'ho introduced it to evade the statutes of mortmain. To explain this, we must remark that the religious houses to which these clergy belonged, fell imder the legal de- scription of corporations ; a species of social institution on which we shall have occasion to dilate hereafter, and of which at present we shall only say, that they consist either of collective bodies of men, or of single individuals — the first called corporations aggregate^ the second, corpo- rations 5o/e, — to whom the law allows an artificial, distinct from their natural, personality ; and who possess, as persons corporate, the character of perpetuity : their existence being constantly maintained by the succession of new individuals in the place of those who die, or are removed {lyi). The lands belonging to corporations were consequently said to be in mortud manu, or in mortmain, because they produced no advantage to the feudal lord by way of escheat or otherwise {n) : and therefore, by the policy of the antient law, corporations were prohibited from the purchase of land, unless a licence in mortmain (as it was called) was obtained for the purpose. This principle was enforced by a variety of statutes, called the statutes of mortmain, which the clergy (scil. the lawyers) of the day were con- stantly exerting their ingenuity to evade. One of their expedients was to obtain grants of land, not to their religious houses du'ectly, but to some person to hold to the nse of such religious houses. A gift of this kind conferred (i) 1 Cruise, Dig. 395. {in) See fiu'ther as to coiiDora- {Ic) Inst. 2, tit. 23, s. 1. tions, bk. iv. pt. m. c. i. (/) 1 Saud. Uses, p. 17. {") Co. Litt. 2 b. CHAP. IX. — OF USES AND TRUSTS. 359 no estate or interest "whatever, in contemplation of law, on those whose benefit was designed ; for the principle of the feudal tenure was to look no further than to the actual and ostensible tenant, and to consider him alone as the proprietor (o). The use, therefore, declared upon such a gift, being, in the view of the ordinary courts of justice, a non-entitj, escaped the operation of the statutes of mort- main. On the other hand, it did not remain without pro- tection : for the clerical chancellors of those days maintained the doctrine that such gifts, though not effectual in the ordinary courts of law, were binding in conscience ; and ought, like the Jideicoinmisscf of the Romaus, to be enforced. And as these were subjected by the imperial institutions to the jurisdiction of a particular magistrate, the prtetor, so the chancellors claimed the right of compelling the performance of the trusts in question in their Court of Chancery; a tribunal which administered justice upon the principles of cqiiif//, in contradistinction to the common law of the realm [j)). As regards the corporate bodies or religious houses themselves, indeed, this evasive contrivance of uses proved to be of little avail ; being crushed in its infancy by the statute 15 Eicli. II. c. 5, which enacted that, for the future, uses should be subject to the statute of mortmain, and forfeitable like the lands themselves, unless the licence of the crown were duly obtained. Yet the idea, being once introduced, was afterwards applied to purposes not contemplated by its inventors, and took root in our system of jurisprudence ; being chiefly recommended by two con- siderations — first, that uses were, as to tlie manner of their creation and transfer, and the modifications of interest to which they might be subject, free from the restrictive rules which applied to the common law estates ; secondly, that they were not, in general, hable, like these estates, to (o) 1 Cruise, Dig. 402. 51 ; Hist. Eng. Law, by Reeves, {p) Vide sup. p. 81 ; 3 Bl. Com. vol. iii. p. 192. 360 BK. II. OF RIGHTS OF PKOrERTY.— PT. 1, THINGS REAI,. forfeiture (y), and originally not even to forfeiture for treason (r). [And owing to this latter circumstance in particular, it happened that, during our long wars in France and the subsequent civil commotions between the houses of York and Lancaster, uses grew almost universal ; through the desire that men had of securing their estates from forfeiture when each of the contending parties, as they became uppermost, alternately attainted the other. And about the reign of Edward the fourth, before whose time Lord Bacon remarks that there are not six cases to be found relating to the doctrine of uses, the courts of equity began to reduce them to something of a regular system (.§).] With respect to the kinds of property that might be the subject of a use, we may observe, in general, that all cor- poreal hereditaments, whether in possession, remainder, or reversion, — and many that are incorporeal, for example, rents and advowsons, — might be granted to a use ; but not those of which the use was inseparable from the possession or qt((e ipso usu coiisuiunnfiir, as ways, commons, and the like(0. • The manner in which a use was commonly created was as follows. The owner or actual tenant of the land con- veyed it by feoffment, upon the trust or confidence, which often rested upon merely oral agreement {u), that the feoffee should hold the land to the use of some third per- son, or it might be to the use of the feoffor himself (.r). The effect of this transaction (as already in part explained) was that the legal seisin or feudal tenancy of the land became severed from the substantial and beneficial owner- ship or use ; the former being vested in the trustee, other- vnse called /co^ce to uses, the latter, in the person to whose (q) Vide sup. p. 199. Jones, 127; Ld. Willoug-hby's case, (r) See 33 Hen. 8, c. 20. per Doddiidge, J., Gilb. Uses, 485, (.v) See Bac. Road. Uses. 3rd od. by Sugd. (0 2 Bl. Com. 330; 1 Sand. Uses, {>i) 1 Sand. Uses, p. 17. p. 70 ; 1 Cruise, Dig. 408; "W. (.r) 1 Cruise, Dig. 392. CHAP. IX — OF USES AND TRUSTS. 361 use lie lield, who received the appellation of ccsfiii quo iiso. Of these divided interests, that of the feoffee alone obtained protection in the courts of common law ; where he was considered as absolute owner. But a different doctrine was maintained in the courts of equity, wliich treated the cestui que »^r, on the other hand, as the true proprietor ; and compelled the feoffee to uses to account to him for the rents and profits, and to hold the land at his disposal. Uses, however, might be created, not only by an express agreement or declaration, but by mere implication from the nature of the conveyance itself. Thus if a man made a feoffment in fee to another, without any consideration, equity would presume that he meant it to the use of him- self, and would therefore raise an implied use for his bene- fit (//) ; unless, indeed, he expressly declared it to be to the use of another, and then nothing was presumed contrary to his own expression (z). And here Ave may observe, that uses thus retm-ning by way of implication to the grantor himself, were called resulting uses {a). Uses also were capable of being raised in some cases upon mere contracts, without the formality of any conveyance ; and this either expressly or by implication {h) . For if a man, in conside- ration of natural affection, covenanted, that is, contracted under the solemnity of a deed, that he nould stand seised of his land to the use of some near relative named ; or of a wife, actual or intended ; a court of ec[uity, even though no valuable consideration passed, would enforce the use, and treat the covenantor thereafter as a mere trustee for the party whose benefit was designed (<"). So if a man had bargained and sold his land to another, (that is, agreed to sell it to liim,) for pecuniar}' consideration, but had made no actual feoffment or conveyance, equity would, (y) 1 Sand. Uses, p. G8 ; Vin. El. 650. Uses, F.; 1 Cruise, Dig. 442, 446, (i) 1 Sand. Uses, p. 118 ; vol. 2, 4.)0 ; Gilb. 118. p. oO ; Chndleigh's case, 1 Ecp. (r) 2 Bl. Com. 330. 139 b. I'l) Cruise, Dig. ubi sup. ; 2 Bl. (<■) 2 Bl. Com. 304 ; Gilb. Uses, Com. 335 ; Doe v. Rolfe, 8 Ad. & 93 ; Sugd. Introd. to Gilb. xlvii. 362 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. under sucli circumstances, consider the estate as belonging to the party who had paid the money ; and would con- sequently hold the bargainor to be seised of the land from thenceforth, to the use of the bargainee (d). No contracts of either kind, however, would be enforced in equity, unless founded upon the particular species of consideration above described as appropriate to the case ; a gratuitous engagement, in favour of a stranger, being insufficient to raise a use. In general all persons were of capacity thus to become trustees and to hold to a use (c). There were, however, some exceptions. For persons attainted and aliens were for this, (as for all other purposes,) disqualified from hold- ing land (/) ; and the doctrine was also established, that neither the king nor queen, on account of their dignity royal, — nor any corporation aggregate, on account of its limited capacity, — could be seised to any use but their own ; that is, they might hold the lands but were not compellable to execute the trust (g) . As the person seised to uses was considered at the com- mon law as absolute owner, his estate was of course subject to all the incidents which would attach to one held for liis own benefit. It would devolve to his legal representative at his death, and might be aliened, or forfeited by his act while living ; or become subject to execution for his debts, or to escheat for want of an heir. His wife also would be entitled to dower therein : and where the person so seised was a married woman, her husband, on her death, might claim the estate by the curtesy {//). It is to be observed, too, that those who claimed under such derivative titles from the persons seised to uses, were {d) 2 Sand. Uses, p. 50. But (/) lb. 65. the precise technical words of bar- {g) 2 Bl. Com. 330 ; Sand. Uses, gain and sale, or covenant to stand ubi sup. seised, are not essential, if there (/;) 1 Sand. Uses, pp. 75, 76 ; be words tantamount. (Treat, on 1 Cruise, Dig. 403 ; Gilb. Uses, by Equity, book ii. chap. 3, s. 1.) Sugd. 3rd ed. p. 15 ; 2 Bl. Com. S30. {e) 1 Sand. TTses, ji. 62. CHAP. IX. — OF USES AND TRUSTS. 363 in some cases entitled to hold for their own benefit, free from anj equitable obligation to perform the trust. Origi- nally, indeed, it was held that the Court of Chancery could give relief only against the j)erson himself in whom the trust was first reposed, and not against such as might derive title through him. [But this was altered in the reign of Henry the sixth with respect to the heir (?) ; and afterwards, by a parity of reason, with respect to such alienees as had purchased either without a valuable con- sideration, or with express notice of the use (/.•). But a purchaser for a valuable consideration without notice, or a creditor obtaining execution, might hold the land dis- charged of the use (/) : and so if the person seised to uses died without an heir, or committed a forfeiture, or married, neither the lord who entered for his escheat or forfeiture, nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom dower was assigned, — were liable to perform the use ; because they were not parties to the trust, but came in by act of law : though doubtless theii* title, in reason, was no better than that of the heir {>n).~\ The capacity of becoming a cestui que use, was even more extensive than that of becoming trustee ; and it may be sufficient to observe generally, that all persons competent to take a conveyance of land might also take an interest in it by way of use («). The nature of this interest, constituting as it did a new sort of ownership, wholly distinct from the common law or legal estate, to which alone our attention was formerly directed, demands a particular consideration. It was in its nature so exclusively equituhle, that the com-ts of com- mon law accounted the cestui que use, if out of possession, as a mere stranger to the land ; if in possession, as no more than a tenant at sufferance. They consequently (i) Keihv. 42; see the Year-book, (/) Gilb, Uses, by Siigd. ubi suj). •12 Edw. 4, c. G. {m) See 1 Sand. Uses, p. 229. (/.•) Kcilw. 4G. («) Ibid. 364 i;k. 11. OF kights of propeuty.— pt. i. things real. allowed no effect to Ills alienation or demise of tlie land, if made without the consent of the trustee ; and they held it not liable to forfeiture for his default, nor to execution for his debts (o). In equity, however, the properties or incidents of this kind of ownership were in a great measure assimilated to those of a legal estate ; while on the other hand they were settled, in certain respects, upon principles more advantageous to the owner. These properties were principally as follows: — 1. Contrary to the course of the common law with respect to freehold estates, uses even for life, or for a greater interest, might be created or assigned by secret deeds between the parties, or might be devised by last will or testament {p) ; for as the legal estate in the soil was not transferred by these transactions, no livcri/ of seisin was necessary, or in its nature applicable to the case. 2. As a use was exempt from the restrictions of the common law as to the manner of creation or transfer, so it enjoyed a similar freedom as regards the modifica- tion of the interest itself. Thus, uses might not only be in possession, reversion, or remainder, (vested or contin- gent,) according to the fashion of legal estates ; but might also be limited for future interests not corresponding with the legal idea of a remainder. When in the nature of estates in possession, reversion, or vested remainder, they were called uses in esse; in other cases they were de- scribed as uses in faturo, contingent uses, or uses in pos- sihilitij {q). 3. [A. use was not, as before remarked, subject to forfeiture (r) ; and did not escheat upon attainder, or other defect of blood ; for escheats and the like are the consequences of tenure, and uses are held of nobod3^ 4. Again, no wife could claim dower, or husband an estate by curtesy, of a use [s) ; for no trust was declared for their (o) 2r.l. Com. 331 ; 1 Sand. Uses, 211b; Levies' case, 10 Rep. 85 a ; pp. 73, 74. Bac. Read. Uses; Bac. Ab. Uses, [p) Bac. Read. Uses, 312, 308; (G). 1 Saiid. Uses, p. 72. (;•) Vide sup. pp. 359, 360. {q) Chudleigh'scase, 1 Rep. 13Gb, (v) Vernon's case, 4 Rep. 1 b; 2 CHAP. IX. — OF rSES AND TRI'STS. 365 [benefit, in the original grant of the estate. And therefore (as we have seen) it became customary, when most estates were put in use, to settle before marriage some joint estate to the use of the husband and wife for their lives, which was the origin of modern jointures (t). 5. Lastly, a use could not be extended by writ of elegit, or other legal process, for the debts of the ccsfui que use; though the legal estate icas liable to such execution for the debt of the legal tenant.] The state of things here described was, however, at- tended with a variety of inconveniences. A person in possession of the land as apparent owner, would often, in reality, be a mere cestui que use, and consequently no more than a tenant at sufferance in regard to the legal estate ; or he might, on the other hand, be a mere trustee, the equitable ownership and the right to receive the profits residing in another [u) \ and as putting an estate into use was often a secret transaction, with which strangers had no means of becoming acquainted, they were in con- stant danger of being deceived as to the true state of the title [x). [We cannot therefore be surprised at Lord Bacon's complaint that this course of proceeding " was " turned to deceive many of their just and reasonable rights. " A man that had cause to sue for land, knew not against " whom to bring his action, or who was the owner of it. " The wife was defrauded of her thirds, the husband of " his curtes}^ the lord of his wardship, relief, heriot, and " escheat, the creditor of his extent for debt, and the " tenant of his lease " (//). To remedy these inconveniences abundance of statutes were provided, which made the lands liable to be extended by the creditors of the cestui que ■use (s) ; allowed actions for the freehold to bo brought And. 75. As to cloivcr and cnrtesij, (.r) 1 Sand. Uses, j-ip. 17, IS, 23; vide sup. pp. 264, 267. Preamble of Stat, of Uses. [t) Vide sup. p. 272. {ij) Bac. Use of tlie Law, 153. [n) Bac. Ab. Uses and Trusts, (;:) See 50 Edw. 3, c. 6 ; 2 Rich, p. 83. 2, St. 2, c. 3; 19 Hen. 7, c. 15. 366 BK. IT. OF RIGHTS OP PROPERTY. — PT. T. THINGS REAL. [against him if in actual pernancy or enjoyment of the profits [a) ; made him liable to actions of waste {h) ; esta- blished his conveyances and leases made without the concurrence of his feoffees (c) ; and gave the lord the wardship of his heir, with certain other feudal per- quisites ((/). These provisions all tended to consider the cestui que use as the real owner of the estate ; and it being at length resolved to carry this idea into full effect, that celebrated Act was passed in the reign of Henry the eighth, (27 Hen. YIII. c. 10,) which is usually called the Statute of Uses, or, in conveyances and pleadings, the Statute for transferring Uses into Possession. The hint seems to have been derived from what was done at the accession of King Hi chard the third ; who having, when Duke of Gloucester, been frequently made a feoffee to uses, would upon the assumption of the crown (as the law was then understood) have been entitled to hold the lands discharged of the use [e). But to obviate so notorious an injustice, an act of parliament (1 E,ic. III. c. 5) was immediately passed, which ordained that, where he had been so enfeoffed jointly with other persons, the lands should vest in the other feoffees as if he had never been named ; and that, where he solely stood enfeoffed, the estate itself should vest in the cestui que use in like manner as he had the use.] And so the statute of Henry the eighth, after reciting the various inconveniences before mentioned, and many others, enacts that, where any person or persons shall be seised of lands, tenements, or other hereditaments (/) to the use, confidence, or trust of any other person or persons, or body politic, by any means whatsoever, (whether the use, confidence, or trust be in (a) 1 Rich. 2, c. 9 ; 4 Hen. 4, c. (c) Vide sup. p. 362. 7 ; 11 Hen. 6, c. 3 ; 1 Hen. 7, c. 1. (/) The words in the Act are {/j) 11 Hen. 6, c. 5. "honours, castles, manors, lands, ((■) 1 Rich. 3, c. 1. "tenements, rents, services, rever- {d) 4 Hen. 7, c 17 ; 19 Hen. 7, " sions, remainders, or other hercdi- C. 15. "taments;" 27 Hen. 8, c. 10, s. 1. CHAP, IX. — OF rSES AND TRUSTS. 367 fee simple, fee tail, for life or for years, or otherwise, and whether it be in possession, remainder or reverter,) the estate of the person or persons so seised to uses shall he deemed to be in him or them that have (i. e. are bene- ficially entitled to) the use, trust, or confidence : and he or they shall thenceforth stand and be seised or possessed of the said lands or other hereditaments of and in the like estates as he or they had in the use, trust, or confidence. The effect of this statute, wherever it comes into operation, is to execute the use : that is, it instantaneously, and as "by a kind of parliamentary magic," transmutes the equit- able interest of the ccdid que use into a legal estate of the same nature, and makes him tenant of the land ac- cordingly, in lieu of the feoffee to uses, or trustee : whose estate, on the other hand, is, at the same moment, anni- hilated {(J). The use is also said to be transferred into possession (h) ; that is, the legal estate conferred on the cestui que nse is considered as an estate in actual seisin or possession (according to its nature), and such as re- quires no further ceremony for its completion («). Thus if a feoffment be made to A. and his heirs to the use of B. and his heirs, an estate in fee simple in possession is eo instanti vested by force of the statute, and without livery of seisin, in B.; and A. takes nothing (/«•) : or if a person seised in fee bargains and sells to A. for a year, for a pecuniary consideration — which we may remember con- stitutes a seisin in the bargainor to the use of A. (/) — A. immediately becomes, by force of the statute and with- out entry, possessed of the land for the term of one year ; the reversion remaining in the bargainor. Here w^e must observe, however, that to bring the statute into operation, it is essential that there should {g) 2 Bl. Com. 333. Spilsbiuy, 6 Man. & Gr. 456, in \h) 1 Saund. 251, n. (2), 234 b, notis. n. (4). {1c) A.'s momentary seisin vests (J) As to tlie effect upon the sta- no estate in liim. (James ;•. Plant, tutory seisin, of the cestui que uso in eiTor, 4 Ad. & El. 760.) disclaiminr/ the use, see Burdett v. (I) Vide sup. p. 361. 368 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. not only be a use, but a person seised to the use [m) ; for its provisions are confined to tlie ease where " one person shall be seised to the use of any other person." And therefore where an existing term of years is limited to a use, as where a term of 1,000 years is assigned to B. to the use of C, it was decided by the common law judges soon after the statute passed, and has been since uniformly held, that the provisions of the statute do not apply to the case, and that the use will consequently remain unexecuted. For of such estates as these, (being mere chattels,) the termor is not seised, but only possessed (n) ; and therefore there is no person "seised to a use" as the statute re- quires (o). Upon the same principle of close adherence to the words of the statute, it is held, that the seisin must be vested in a different person from the cestui que use himself: for otherwise the case does not arise of one person seised to the use of another [p). And the seisin should be for an estate as extensive as the use itself ; for the statute only executes the use so far as there is a corresponding seisin. Thus if land be conveyed to A. for life to the use of B. in fee ; the statute will vest the legal estate in B. only during the life of A. {q). (;«) 1 Sand. Uses, pp. 97, 113, vol ved the curious doctrine of scj«- 133. tilla Juris. Thus, where land is (») Vide sup. p. 281. conveyed by feoffment to A. and (o) 1 Sand. Uses, p. 198 ; Gilb. his heirs, to the use of B. for life, Uses, 79; Bac. Read. Uses, 335; remainder to the use of his unborn Dillon r. Fraine, Poph. 76. This sons successively in tail, remainder case, of the limitation of a tei-m of to the use of C. in fee ; it is neces- years to a use, must be carefully sarj^, in order that the statute distinguished from the limitation of should transmute all these uses the freehold to a user for a term of into legal estates, that there should years ; for the latter is executed be a seisin out of which to execute by the statute. (Gilb. Uses, 80.) not only the uses in esse to B. and (jo) I Sand. Uses, p. 96. C, but the future uses to the sons {q) lb. p. 113; Gilb. Uses, 430. of B. And by some it was thought There was once a great controversy necessary, also, that this seisin on the question out of what seisin should exist with respect to each "contingent uses" are in certain use at the time of its possessing cases to be executed ; and this in- the character of a use in esse. But CHAP. IX. — OF USES AND TRUSTS. 369 As regards the use itself, also, a similar rigour of con- struction was adopted by the early expounders of the statute ; and their doctrines have long since passed into settled law (r). The decisions of the common law courts on this subject were as follows : — 1. It was held that no use can he Jitnited upon a use is). Thus where A., being seised, bargains and sells for a pecuniary consideration to B., the legal estate passes (as we have seen) by force of the statute to B., to whom the use is limited by the effect of the bargain and sale ; and from this it might seem reasonable to infer that where A. bargains and sells to B., to the use of C, the legal estate would vest in C, for the ultimate use is here limited to Jdin. But the judges held that it would vest in this case also in B., and that C. would take nothing ; for the statute, they said, would execute the first use limited to B., but not the second, limited to C. ; the latter use being a mere nullity, inas- all the actual seisin of the feofPee A. is exhausted before any son of B. is bom, being drawn oiit of A. to execute the uses in esse to B. and C. ; which uses, taken together, extend to the entire inheritance. Here, therefore, Avas the difficulty ; and in order to meet it, it was held by great authorities that there still remained in the feoffee, though not an actual seisin, yet a, scintilla Juris, or possibility of future seisin, to serve the future uses as they came into esse. But, according toothers, there was no necessity for resorting to this theory ; it being sufficient, in their opinion, for the purpose of the statute, that at the time of the creation of the future uses there should be a seisin to serve them, though there should be none at the time of their coming into esse ; and they concluded that in the case sup- posed there would remain in A. VOL. I. neither any seisin nor any possi- bility of seisin, after the uses to B. and C. were executed. (See Sngd. Pow. 8th ed. p. 19.) The contro- versy, however, is now disposed of by Act of Pai'liament ; it being provided by 23 & 2i Vict. c. 38, s. 7, that such uses shall take effect when and as they arise by force of the original seisin to the uses ; and that no scintilla Juris shall be necessary or deemed to remain. ()•) This strictness has been attri- buted to a disinclination on the part of the j udges to carry the abolition of uses so far as had been intended by the legislature. (First Real Prop. Eep. 8.) (.s) Gilb. Uses, 3-1 7 ; 1 Sand. Uses, p. 198 ; 2 Bl. Com. 335. See per curiam, Gilbertson v. Richards, 1 H. & N. 297. B B 370 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. much, " as no use can be engendered of a use " (/). Upon the same principle a feoffment to A., to the use of B. in trust for C, was held to vest the legal estate in B. ; and C. was allowed to take nothing (??). This maxim, that there can he no use upon a use, proceeded upon the principle that, after the limitation of one, another must be considered as repugnant, and therefore void. Yet the doctrine, how- ever firmly settled, is, upon the whole, not satisfactory ; for it was clearly intended, in the cases above supposed, that C. should have the beneficial interest ; and the instant the first use was executed in B. he might without impro- priety have been considered as seised to the use of C. : which second use the statute might as well have been permitted to execute as it did the first {x). 2. It was held that u-/ierc the person entrusted has any active duty to perform, he cannot he considered as holding to a use, or at least not such a use as the statute executes {y). Thus, if lands be given to B. and his heirs, with a direction to receive and pay over the profits to C, this shall be no use in C. ; though, on the other hand, if the direction were to permit C. to tcdic the profits, this would be a use executed in him ; for in the case last supposed, there is no active duty aj^pointed for the trustee (s). {t) Tyrrell's Ccaso, Dy. 155. formed. Thus if land be given to (m) 2 Bl. Com. 336 ; Gilb. Uses, B. and his heirs, -with directions to Sugd. Ix. pay over the profits to 0. during (.r) Bl. Com. ubi sup. the life of C, and then to permit (y) Bro. Feoff, al Uses, 52. See D. to take the profits, the legal also 2 Saimd. byWms. II a, n. (17) ; estate is vested in B. dm-ing C.'s Browne v. Ramsdon, 8 Taunt. 564 ; life, but on D.'s remainder vesting Doe V. Homfray, 6 A. & E. 206; in possession, /). A similar protec- tion was also given, for the same reason, and under the same name, to all those confidences which were excluded from the operation of the statute, on account of the active duties imposed on the trustee ; and these were a very numerous and important class, comprising not only cases where the trustee was directed to receive and pay over the profits to other persons, but those where he was to sell the land for their benefit or to divide it among them, or the like. These, indeed, seem always to have been described as trusts, or special trusts, and never to have received the appellation of uses (c) . They were obviously of a very different nature from those aimed at in the Statute of Uses; and were some of them so essential to the purposes of civilized society, and to the protection of those who were imable to act for themselves, that it is difficult to imagine a period in our legal history when they could bo wholly Doe (I. Shelley v. Edlin, 4 Ad. & (i) Ibid. El. 582; Williams v. Waters, 14 (r) Bac. Eeid. Uses, 805; 1 Sand. Mee. & W. IGG. Uses, pp. 2, 6, 10, 203. (rt) See 2 Bl. Cora. 33C. 1$ 15 2 372 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. imknown, or to suppose that they owed their origin to the introduction of uses. Both these kinds of trust have ever since continued to he copiously created : the person whose benefit is designed hy either species of trust is called the cesfid que trust, and his interest is described as the equitable or trust estate ; which distinguishes it from a use on the one hand, and from the legal estate on the other. It will be evident, however, from preceding explana- tions, that, in the case of a passive trust, the trust estate cannot be effectively created without taking care to re- duplicate the nse, or to limit it npon a term of years instead of a freehold interest. Thus, if it is intended to give C. a trust (or equitable) estate, and not a legal one such as is recognized at the common law, it will not suffice to convey by feoffment to B. and his heirs " to the use of," or even "in trust for," C. and his heirs; for that use would be executed by the statute, and the legal estate would vest in C. But, on the other hand, the object may be accomplished by enfeoffing "A. and his heirs to the use of B. and his heirs, in trust for C. and his heirs :" for there being in this case a use npon a use, the first only will be executed by the statute, and the trust estate is undisturbed. So it may be accomplished by enfeoffing " A. and his heirs to the use of A. and his heirs, in trust for C. and his heirs;" for though the first use is not such a one as the statute executes (the seisin and the use being vested in the same person), yet there cannot be a use upon a use, whether the statute executes the first use or not ; and therefore the interest of C. is not a use executed, but a trust [d). In like manner the object will be attained if an existing term for 1000 years be assigned " to A. to the use of C. and his heirs ;" for A. not being seised, but possessed only, to the use of C, the statute will not execute the use, and A. remains trustee {(l) Tipi)iug V, Cousins, Comb. p. 72 ; and sec Doo d. Lloyd v. 312 ; 1 Sand. Uses, p. 97 ; 2 ib. Passingham, 6 Barn. & Cress. 30o. CIIAl'. IX. — OF USES AND TRUSTS. 373 for C. As for the case of an active trust, no sncli artifice of conveyancing is necessary to constitute the trust estate ; the duties requii-ed to be performed being sufficient in themselves to determine its character. Among the kinds of trusts cognizable in equity, it may be right also briefly to advert to a large class ^^ith which ■\ve liave at present no direct concern, viz., those which are constituted in respect of personal chattels : for the trusts of which we have hitherto spoken relate (it will be ob- served) exclusively to the realty and chattels real. As to personalty, it was never considered as capable of being held to a use, in the proper meaning of that term [c) ; and the Statute of Uses is confined in its terms to "lands, tenements, and liereditaments ; " but, in the nature of things, a tnid of personal chattels must always have been of frecpient occurrence ; and from an earlj' period it became the sub- ject of protection in the courts (/). The wide field of jurisdiction which the courts of equity gradually acquired, under the general denomination of " trusts," they from time to time sedulously improved ; and by a long series of uniform determinations, with some assistance from the legislature, they have raised a new system of rational jurisprudence, hy which trusts have been made to answer in general all the beneficial ends of uses, witliout their inconveniences or frauds {g). Of this system, so far as it regards the nature of the estate of the trustee, and tliat of tlie cestui que trust, we will ]iere endeavour to point out the fundamental principles ; the subject being much too copious to be fully handled in a general treatise upon the English law. Fii'st, Avith respect to the word " trust " itself : it has (<) Gilb. Uses, by Sugd. 485 ; 1 of the trust estate or fund docs not Sand. Uses, p. 70 ; per Doddridge, exceed a certain amount, the count ij W. Jones, 127. coui't of the district has now a con- (/) 1 Sand. Uses, 10; 2 FonLl. current jurisdiction with the Chan - Treat. Eq. 1, n. («) ; 3 Bl. Com. 432 ; eery Division of the High Court of and see The Queen r. Abrahams, 4 Justice (28 & 29 Vict. c. 99, s. 1), Q.B. 159. In cases where the value {g) See 2 BI. Com. 337, 374 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. varied somewliat, we may perceive, from its antient mean- ing. It formerly applied to every case wliere a use was created, as well as to other confidences ; but where there is a use which the statute is competent to execute, thei'e can no longer be said to exist a trust. The true definition of this term, at the present day, seems to be a confidence reposed by one man in another with respect to property committed to him as the nominal owner, but not involving a use which the statute is competent to execute. In prac- tice, however, the term trmt, as well as trust estate, is applied to express the beneficial interest of the cestui que trust, as well as the confidence reposed in his trustee. Besides the distinction between active and j^cissive, trusts are also frequently described as executor^/, or executed — the former tenn being applied to cases where the party, whose benefit is designed, is to take through the medium of a future instrument of conveyance which the trustee is directed to execute for the purpose ; the latter to cases where no transaction of that kind is contemplated, but the trust estate is completely limited in the first instance {//). Again trusts (like uses) may be either expressly declared^ or they may be implied from circumstances. Thus, if the legal estate in land be conveyed to A. upon such trusts as the grantor shall thereafter appoint ; as such trusts are, prior to appointment, incapable of taking effect, and as it is clear that A. is not intended to hold the land for his own benefit ; there arises, by necessary implication, until the appointment be made, a trust for the grantor (/). And trusts, when thus raised by implication for the benefit of the grantor himself, are called resulting trusts (^■). So if an estate be purchased in the name of one person, and the consideration-money belong to or be paid by another, the land pmx'hased will be subject to a trust for tlie person to (A) 1 Fonbl. Treat. Eq. 441, n. ; [Ic) As to a resulting trust in Bac. Abr. Uses, A. ; Butl. Fearne, stock, see Sayre v. Hughes, Law 90, 118, 139, &c., 9th ed. Ecp., 5 Eq. Ca. 37G. (i) 1 Cruise, Dig. 477. CHAP. IX. — OF USES AND TRUSTS. 375 W'liom the money belonged (/) . And an agreement for tlie sale of land, wlien once concluded, %Yill make the vendor a trustee in equity for the purchaser {ni). Though neither the crown nor a corporation aggregate could be seised (as we have seen) to any use but their own {_n), the case is otherwise with respect to a trust (o) ; and it may be laid down generally, that every description of person capable of holding land, is capable also of being a trustee. It is also a maxim in equity, that a trust shall never fail on account of the disability of the person ap- pointed to perform it, or even from the omission to appoint any person as trustee. The court will consider the trust, when once substantially constituted, as fixing itself upon the person who, by reason of such disability or omission, may become entitled to the legal estate and mil accord- ingly compel him to its observance {p). The estate of the trustee at law (as distinguished from equitij) is subject to all the incidents which attend an ordinary ownership of land. It devolves, therefore, when he dies, to his legal representative ; and is liable, while he lives, to alienation by himself ; but the claim of the repre- sentative, and in general also of the alienee, is subject, in contemplation of equity, to the original trust [q). With respect to the latter, however, the same rule is established as formerly with respect to uses, that a person who be- comes alienee by purchase, for valuable consideration, and without notice that the trust existed, is not compellable in equity to its observance (r). As his claim is not inferior, in point of natural justice, to that of cestui que frusf, equity will not interpose between them ; the consequence of which is, that the legal title of the purchaser takes effect for his owa benefit, while the cestui que trust is left to his remedy against the alienor personally, for his breach of trust. On (0 1 Sand. Uses, p. 212. {p) lb. 22G. (w) Sugd. Vend. 154, 5th ed. ('/) lb. 227; Gilb. Sugd. 13,n.(5). (w) Vide sup. p. 3G2. (»•) 1 Sand. Uses, p. 228 ; vide (o) 1 Sand. Usfcs, p. 227. sup. p. 3G3. 376 BK. II. OF RIGHTS OF TROPERTY. — FT. I. THINGS REAL. the other hand, where the legal estate still remains in the trustee or his heir, but the purposes of the trust are satisfied, he is always compellable to divest himself of it in favour of the person beneficially entitled, by executing a proper conveyance. And it is provided by modern statutes (13 & 14 Vict. c. 60, and 15 & 16 Yict. c. 55), the first of which is usually cited as the " Trustee Act, 1850," that if the trustee should refuse or neglect to convey when requii'ed (s), or if he should be an infant (/), or out of the jurisdiction, or cannot be found {ii) ; or if it should be un- certain (where there are several trustees) which was the survivor (x) ; or whether the trustee last known to have been seised is living or dead, or, if dead, who is his heir or devisee (//) ; or if a person seised of land in trust dies intestate as to such land and without an heii- (;:), — in all these cases the court shall have power either to make an order vesting the estate in such person or persons, in such manner and for such estate as it shall direct {a) ; or may appoint some i)erson to make the conveyance in lieu of the trustee or his heir (b) . It is further to be noticed that, at Ia?c, the estate of the trustee was liable to be taken in execution for his debts (c) ; and his wife was entitled to dower (d), and the husband of (*■) 15 & IG Vict. c. 55, s. 2. a contingent right in trust; and {t) 13 & 14 Vict. c. 60, ss. 7, 8, 13 & U Vict. c. 60, ss. 3, 4, in (k) Sects. 9, 10. reference to the case of a Innatie {x) Sect. 13. trustee. See also 37 & 38 Vict. [y] Sects. 14, 15. c. 78, s. 6, as to the case of a bare (r) Sect. 15. trust estate becoming vested in a {a) By 28 & 29 Vict. c. 99, the married -woman ; and 44 & 45 Vict. iurisdiction herein of the Chancery c. 41, s. 30, as to the case of a sole Division of the High Court of Jus- trustee dying, whether testate or tice is confen'cd also on the county intestate, and the tiiist estate vest- coiu't of the district in cases where ing in his legal personal represen- the trust fund does not exceed a tative as his heir. certain amount. (r) 1 Sand. Uses, pp. 230, 231 ; (J) 13 & 14 Vict. c. 60, s. 20. 1 P. Wms. 278. See also sect. 10, and 15 & IG Vict. [d) 2 Ves. sen. 634. Ksio dower ^ 0. 55, s. 2, containing like provi- vide sup. p. 268. sions, where lands are subject to CHAP. IX. — OF T'SES AND TRUSTS. 377 a female trustee to curtesy {e). Upon tliese points it ^^'ill be recollected that the position of the feoffee to uses, before the statute of Henry YIII., was the same ; while, on the other hand, cestui que une remained without protection from the effect of these claims (/). But herein the modern trust differs remarkably from the use ; for equity will now interfere in each of these cases, on behalf of the cestui que trust, and give him relief against the party who sets up any title of this description to tlie legal estate ; and in fact law and equity are now uniform in these respects. For- merly, also, the incidents of forfeiture and escheat applied (generally speaking) to the estate of the trustee {g). But even prior to the modern enactment of 33 & 34 Yict. c. 23, by which escheat and forfeiture for treason or felony were taken away, it had been provided by 13 & 14 Vict. c. 60, ss. 46, 47, that no land, stock, or chose in action, held in trust or by way of mortgage, should escheat or be forfeited so as to affect the interest of the cestui que trust or mort- gagor, by reason of the attainder or conviction of the trustee or mortgagee for any offence (//). Such are the points that most deserve attention in re- gard to the estate of the trustee. If we turn now to the other party or cestui que trust, we may remark, in the first place, that every person is competent to stand in that capacity, unless labouring under such disability as would disqualify him from becoming the tenant of land. As to the nature of his interest, it was not the subject of protec- tion, or even of notice (generally speaking), at law, but subsisted only in contemplation of equity (/) ; and it is considered as being of various kinds or degrees, according to the particular character of the trust created. It is in ((') 7 Vin. Ab. 159. As to cur- convict trustee ; also 46 & 47 Vict. iesij, vide sup. p. 264. c. 52, s. 147, authorizing the like (/) Vide sup. p. 362. appointment in the case of a bank- (//) 1 Sand. Uses, p. 230. rupt trustee. (/«) And see 15 & 16 Vict. c. 55, (*) See Britten t). Britten, 4 Tyrw. 8. 8, authorizing the appointment 473 ; Eoe v. Head, 8 T. R. 118. of a new trustee in the x)lace of a 378 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. some instances a mere charge on the land; the ownership being vested in another person : as where a man by his will devises land to one, and directs that it shall be charged with the payment of a legacy to another. In other instances it amounts, in contemplation of equity, to the actual oicncrship : and then the cestui que trust's estate or interest is modelled, in general, upon the rules of the common law with respect to legal estates. For in this and in other particulars, the principle professed is that cequitas sequitur legem (/.•). Thus there may be an equitable estate for life or years, or in fee or in tail ; and in the latter case, the method of barring the entail will be the same as if the estate were legal. So an equitable interest may be either in possession or expectancy, as in the case of a legal estate. But where it is in the nature of a contingent remainder, it was never held subject to the common law rule, (now partly abolished,) of being defeasible by the determination of the particular estate before the contiugency happened (/). The doctrine of "merger" also seems to a^^ply to equitable as well as to legal estates, — providing the coalescing estates be both of the equitable description, and the merger would not be productive of any injustice or inconvenience [m). So the same rules of construction will in general apply to equitable as to legal estates ; and particularly the import- ant rule in Shelley's case [n). A trust of inheritance is also subject to the curtesy of the husband of cestui que trust, as if it were an estate at law (o) ; and in this respect it is placed on a more satisfactory footing than a use, which was exempt, as we have seen, from curtesy {])). It followed, (k) 2 Bl. Com. 330. at wliicli place notice is taken of (/) 1 Prcst. Est. 241 ; Hoplrins the provision in the Judicature V. Hopkins, Cas. temp. Talb. 44 ; Act, 1873, on that subject. 1 Atk. 590; and see Astley v. («) Fearne, byButl. 124, 0th ed. ; Micklethwait, 15 Oh. Div. 59 ; Bale v. Coleman, 1 P. Wms. 142. Abbiss V. Bumey, 17 Ch. Div. 211. As to the "Rule in Shelley's case," {)») See 3 Brest. Conv. 558 ; Hop- vide sup. p. 333. kins V. Hopkins, 1 Atk. 592 ; Phil- (o) 1 Sand. Uses, p. 205. As to lips V. Phillips, 1 P. Wms. 41. As eurles!/, vide sup. p. 264. to merger, vide sup. p. 318, n. (;), (^;) Vide sup. p. 261. CHAP. IX. — OF USES AND TRUSTS. 379 indeed, till a comparatively recent period, the nature of a use, in being exempt from dower : a cii'cumstance result- ing (it has been said) rather from the cautious adlierence to some hasty precedents, than to any well-grounded prin- ciple {q) ; but by 3 & 4 Will. IV. c. 105, s. 2, the widow is made capable of claiming dower in equity out of any estate of inheritance in possession (other than in joint- tenancy), to which the husband was entitled beneficially, and in Avliich she is not dowable at law ; and this, whether the estate of the husband was wholly equitable, or partly legal and partly equitable (r). Again a trust estate, though formerly protected Hke a use from execution for debt, is now (with more regard to justice) made subject to such lu'ocess. For, by the Statute of Frauds (29 Car. II. c. 3), s. 10, and the modern provisions for extending the remedies of creditors against the property of debtors contained in 1 & 2 Yict. c. 110, the lands and tenements of which any person is seised or possessed in tnid for a judgment debtor, are made liable to be given over in execution to the judg- ment creditor (-s). But though, in general, a trust follows the nature of a common law estate, yet, on the other hand, it may be subjected, like a use, to limitations unknown to the common law. It is also exempt in its nature from the common law restrictions with respect to the manner of conveyance ; for it has always been capable of being created or assigned, (even for an estate of freehold duration,) by deed without livery, or by last will and testament. It might originally, indeed, have been established upon mere parol evidence. But now, by the Statute of Frauds, all trusts and confi.- dences of lands, tenements or hereditaments, except such as arise by implication or construction of law, must be manifested and proved by some writing signed by the party, or by his last will in writing {t). And the same [q) 2 Bl. Com. 337. c. xi.) for an explanation of the (r) Vide sup. p. 270. effect of &jicd(/mc>it, and of the la^y (s) The reader is referred to a of execution, later part of the -n'ork (viz. bk. v. [t) 29 Car. 2, c. 3, ss. 7, 8. 880 ]5K. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. Act makes tlie like ceremony essential to the validity of any grant or assignment of this species of interest (?<). A trust also was never subject to forfeitiu-e by reason of the attainder or conviction of the trustee for any offence (x) ; nor did a trust of inheritance escheat for want of inherit- able blood ; for the defect of an heir conferred no title, in this case, on the lord ; it merely enabled the trustee to hold the land discharged of the trust {//). Nor did such a trust of inheritance ever escheat to the lord on the attainder of the cestui que trust for felony (s). In these incidents the modern trust, it will be observed, followed the principle of the antient use. But by a recent Act, 47 & 48 Yict. c. 71, commonly called the Intestates Estates Act, 1884, it has been now provided that upon the death intestate of the cestui que trust without heirs, the lands shall not now remain beneficially to the trustee, but shall escheat to the crown, like as the legal estate would have done ; but whether the Act applies to lands {e. g. copy- holds and antient freeholds) held of some mesne lord, is a doubtful question, the words of the Act being on this point very far from clear ; and jirobably as regards lands held of mesne lords, the old law in favoiu' of the trustee may be held to be unaffected by the Act {a) . It may be proper before wo conclude, to take some notice of tlie subject of terms held in trust to attonl tJie iuJieriteuicc. {u) 20 Car. 2, c. 3, s. 9. A.s to [>j) 2 El. Com. 337; and see tlie effect of these provisions, see Burgess r. "Wlieatc, I W. Bl. 123 ; 2 Saund. by Wms. 11 a, n. {m) ; 1 Eden, 177; Barclay v. Eussell, Harris v. Pugh, 4 Bing. 335 ; 3 Ves. 430. Harris v. Booker, ibid. 96 ; Scott (r) See 1 Sand. Uses, p. 288. V. Scholcy, 8 East, 4G7. Such a trust, howcA'er, is said by (.r) 1 Sand. Uses, p. 20G ; Hob. Hale (1 P. C. 249) to have been 214 ; Attorney- General v. Sands, forfeited to the crown on the trus- Hard. 490; 13 & 14 Vict. c. CO, tee's attainder for treason. (But es. 46, 47. There was formerly an see now 33 & 34 Vict. c. 23, s. 1.) exception as to this in the case of {a) Compare Gallardr. Hawkins, treason. (See 33 Hen. 8, c. 20; 27 Ch. Div. 298. 1 Sand. Use., 207.) CHAP, IX. — OF USES AND TRUSTS. 381 Upon the purchase of real property a practice arose amongst convej'ancers, of assigning upon a trust of such descrip- tion, any mortgage term or trust term connected with the title, but of which the purposes had been satisfied. Thus, where land held in fee was mortgaged for a long term of years (as a thousand years), and, upon the estate being sold, the mortgagee was paid off out of the purchase-money, — it became usual for the purchaser (instead of taking a surrender of the term to himself, and so merging it in the inheritance) to keep it on foot and have it assigned to a trustee of his own nomination, in trust for himself (the purchaser), "and to attend and protect the inheritance." The reason of this practice was, that the beneficial or equitable interest in a term assigned upon such a trust, followed (though a mere chattel) all the limitations of the inheritance — belonged to the heir or devisee of the new owner, and not to his executor or administrator — and was subject to the other incidents of a fee simple (b) ; so that for all purposes of convenience, the case was the same as if it had merged into the inheritance ; while, on the other hand, it afforded the purchaser a security which he could not have had if a merger had actually taken place. For if it afterwards turned out that prior to the purchase, but posterior to the creation of the term, there had been an intermediate alienation or incumbrance of the fee in favour of another person, to which the then trustee of the out- standing term had been no party, and of which the subse- quent purchaser had had no notice when he took his conveyance and paid his purchase-money, he would be protected against it, through the medium of the term : for this, being the elder title, would also take the priority in point of legal effect; and, being assigned expressly in trust for him, became, for all beneficial purposes, his pro- perty. No such protection, however, resulted from such satisfied term where the precaution of thus assigning it (i) Best V. Stamford, Prcc. Ch. Willitims, 1 P. Wms. 137; 1 Saml. 252 ; 2 Frecm. 288, S.C. ; Wray r. 229 ; Cooke v. Cooke, 2 Atk. G7. 382 BK, TI. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. over was neglected ; for thougli, by construction of equity, tlie term would in that case also become attendant on the inheritance, the effect of this was only to make it atten- dant for the benefit of the different persons who from time to time became entitled to the inheritance ; so that, in the example above given, the mortgage term, if left outstanding and not assigned, would be held in trust for the first and not for the second purchaser, — the title of the former being preferable in point of date(c). And, by the effect of a modern change in the law, the practice of assigning such satisfied terms has now ceased to prevail. For the protection afforded by the assignment thereof to a trustee being for several reasons precarious, and, even w^hen effectual, being obtained at the expense of an inno- cent party, whose title was in point of natural justice at least as good as that of the party protected, it was pro- vided by 8 & 9 Yict. c. 112 (d), — with respect to satisfied terms of years, — that such as should, either by express de- claration or by construction of law, on the 31st December, 1845, be attendant uj)on the inheritance or reversion of any lands, should on thfit day absolutely cease and deter- mine as to the land upon the inheritance or reversion whereof they should be so attendant ; with a proviso, however, that every such term of years made so atten- dant by express declaration, (although thereby made to cease and determine,) should afford to every person the same protection as it would have afforded him if it had continued to subsist, but had not been assigned or dealt with after 31st December, 1815 ; and should, for the pur- pose of such protection, be considered both at law and in equity to be a subsisting term. And with respect to terms [c) Second Eoporfc of Real Pro- Rop., 8 Ch. App. 180, See also perty Commissioners, p. 8. the Conveyancing Act, 1881, s. 65, {(l) As to this provision, see Doe and the Conveyancing Act, 1882, d. Hall V. Moulsdale, 16 Mee. Sz W. s. 11, as to the enlargement of long G89 ; Plant v. Taylor, 7 H. & N. terms of years into fee simple 211; Shaw v. Johnson, 1 Dr. & estates, — provisions more fully Sm. 412 ; Anderson r. Pignet, Law stated hereafter. CHAP. IX. — OF USES AND TRUSTS. 383 of years (then subsisting or thereafter to be created) be- coming satisfied after the 31st December, 1845, the same statute enacted that such as should, either by express de- claration or by construction of law, after that day become attendant upon the inheritance or reversion of any lands should, immediately upon the same becoming so attendant, absolutely cease and determine as to the land upon tlie inheritance or reversion whereof such term should become so attendant. We have now touched the principal points in the law of Uses and Trusts, considered as a species of estates ; and for the present may dismiss them from our view. With respect to uses, indeed, there is another aspect under which they will very soon require to be again examined, viz., in their important (but incidental) connection with our system of conveijances. But this is a subject which belongs not to the present chapter. It will find a more proper place when we are engaged in the consideration of Title, or the manner in which estates may be acquii-ed or lost {e) . (t) As to conveyances under the Statute of Uses, vide post, c. xviii. 384 BK. II. OF RIGHTS OF PIIOPERTY. — PT. I. THINGS REAL, CHAPTER X. OF TITLE IN GENERAL. Haying described the tenures by which lands or corporeal hereditaments may be held, and the kinds of estates that may be had in such as are of free tenure, we are next to consider, in pm'suance of the division before laid down, the tiik to them, or manner of acquiring- and losing estates therein (ri'). And the learning on this subject, though applicable to equitable as well as to legal estates, is of more importance with regard to the latter ; because equit- able estates are capable of being created or transferred by simpler methods than those in use at the common law, and indeed by any instrument sufficiently indicating the inten- tion of the parties : the only formality to which they are in general subject being that introduced by the provision of the Statute of Frauds, referred to in the last chapter ; which requires that all grants and assignments of any trust or confidence shall be in writing, and under the signature of the party {h). It is however to be observed, that con- veyances of the same kind are commonly used, whether the estate dealt with be legal or equitable, and also that the rule of dcscoit is the same in both (c), [In proceeding to treat of the manner in which estates may be acquired and lost, it is obvious that we shall not have occasion to detach the consideration of loss from that of acquisition, but that they are reciprocal ideas ; because, by wliatever method one man gains an estate, by that same [a) Vide sup. p. 172. (c) Goodright v. Wells, Doug, (i) Vide sup. p. 379. 771. CHAP. X. — OF TITLE IN GENERAL. 385 [metliod, or its correlative, some other man has lost it. For where the heir acquires by descent, or the devisee by will, the ancestor or testator has first lost or abandoned his estate by death ; where the lord gains land by escheat, the estate of the tenant is first of all lost by the extinction of all his hereditary blood ; where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession. So, in case of forfeiture, the tenant by his o^^^l mistaken view or neglect has renounced his interest in the estate ; whereupon it devolves to that per- son who by law may take advantage of such default. And in alienation by common assurances, the two con- siderations of loss and acquisition are so interwoven and so constantly contemplated together, that we never hear of a conveyance without at once receiving the idea as well of the grantor as of the grantee.] The acquisition of an estate in land or other corporeal hereditament is commonly said to be either by descent or hy purchase ; but, more accuiiitely speaking, it is either by act of laic or by act of the party ; which last is technically q,qS\2^ purchase {d). {d) This division is, in substance, is "not said to be a purchase," suggested by Mr. Hargrave, Co. ' ' because the inheritance is cast Litt. 18 b, n. (2). Blackstone (vol. "upon, or a title vested in the ii. pp. 201, 241,) considers all title "lord, by act in law, and not by an either hj ih'ncent ov purc/iasc, and "his own deed or agreement." defines purchase (after Littleton, (Co. Litt. 18 b.) The truth is, that sect. 12) as " the possession of it is impossible to reduce all titles ' ' lands and tenements which a man to the alternative of descent or pur- " hath by his own act or agree- chase; and as to escheat more par- " ment, and not by descent from ticularly, it seems clear that it is " any of his ancestors or kindred." neither the one nor the other. We And according to Blackstone, (ubi may observe here, that in the In- sup. p. 244,) purchase comprises heritance Act, (3 & 4 Will. 4, escheat ; which, however, it may be c. 106,) the meaning of the word observed, falls under the negative purchaser is settled by a definition part only, and not the positive contained in the Act itself. But part of Littleton's definition. And this is only so far as the particular accordingly Lord Coke remarks, provisions of that statute are con- " that an escheat or the like," cerned ; vide post, p. 391. VOL. I. C C 386 BK. 11. OF lUGHTS OF PROPERTY. — PT. I. TTIIXGS REAL. Title by act of law expresses all tliose modes of acquisi- tion, where the law itself casts the right to the estate upon the acquirer, independently of any act or interference of his own, or of any other person for that purpose. Of these the principal kind is title by descent ; but the term will also properly include title by escheat, and also that of tenant by the cartes//, and of tenant in dower {e). Purchase, on the other hand, though in its vulgar and confined acceptation it is applied only to such acquisitions of land as are obtained by buying it for money or some other valuable consideration (/) ; yet it properly includes every lawful mode of coming to an estate by the act of the party, as opposed to the act of law {g) : among which, our attention will chiefly be directed to the title by occupanci/, by for/eitare, and by roJnntari/ transfer ; which last is usually described as that by alienation or conceijance (h). This use of the term purchase (j^crrjaisitio), by which it is distinguished from title by mere act of law, and more particula,rly from descent, corresponds, it may be remarked, with that of conquest [conqua'stus or conquisitio) in use among the feudists (/), and in the law of Scotland (/<•). [And in like manner, the first purchaser (or he who first brought the estate into the family which at present owns it) was styled, among the Norman jurists, the conqueror or eo)i- [e) Co. Litt. 18 b. As to escheat, transferring land belonging to tlie sup. p. 199 ; as to curtestj, p. 264 ; head of ^;«?Y7/(rse; which it is deemed as to dower, p. 269. expedient to reserve for discussion (/) 2 Bl. Com. 241. insubsequentdivisionsof the work; {(/) According to Lord Coke, the those, for example, which the sta- terrn purchase imports only a laivful tute law has provided by the seizure acquisition, for he says, that " such of lands under an execution by ele- " as attain to lands by mere injury git (vide post, bk. v. c. x.), and by * ' or wrong, as by disseisin, intru- which the estate of a bankrupt is " sion, abatement, usurpation, &c. vested in his trustee. (Vide post, " cannot be said to come in by bk. ii. pt. ii. c. vi.) As to the pur- " purchase, no more than robbery, chaseofj»ersoH«^propei-ty, vide post, " burglary, piracy, or the like, can bk. ii. pt. ii. c. v., where the con- " justly be termed purchase." (Co. tract of sale is discussed at large. Litt. 18 b.) (;) Craig, 1. 1, t. 10, s. 13. (A) There are other methods of {k) Dalrymplc on Feuds, 10. CHAP. X. — OF TITLE TX OEXERAL. Sf^T [^qNorifr {/) ; wliich seems to be all that was mf ant hy the appellation which was given to William the Norman, when his manner of ascending the throne of England was in his own and his successors' charters, and by the historians of the times, entitled conqucestus, and himself conqucesfor or co)iqi(isifor ; signifying that he was the first of his family who acquired the crown of England, and from whom there- fore all future claims by descent must be derived.] Among the different titles that have been enumerated, we have ah-eady been led incidentally to discuss those of tenant by the cui'tesy and tenant in dower {»/). At pre- sent, therefore, we may confine our attention to dcsceuf, escJieat^ occupancy, forfeifure and aJicnaiion : the two first being (as has been pointed out) titles by act of law ; the three last, titles by purchase. (/) Gr. Coustum. Gloss, c. 25. ride sup. p. 264 : as to dower, vide {in) As to tenancy by the curtesy, sup. p. 269. C C 2 388 15K. II. OF RIGHTS OF PROPERTY. — PT. I. THIXGS RKAL. CHAPTER XI. OF TITLE BY DESCENT. We have seen in a former place that an estate of inherit- ance in fee simple or fee tail, is, on the death of the owner without having disposed of it diu'ing his Ufetime by a con- veyance inter vicos or by his will, cast by the law on his heir by a title called descent (a). We are now to consider more particularly the nature of such descent, and the rules by which it is governed (b). The discussion will turn principally, indeed, upon the nature of the descent in fee simple, for that in fee tail is only in the nature of an ex- ception or variation upon the ordinary law of succession ; and when that law is fully understood, the general expla- nations before given with respect to estates tail, will throw sufficient light on descent in an estate of that nature. [The doctrine of descent, or law of inheritance in fee simple, is a point of the highest importance, and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descent is broken and altered, per- petually refer to this settled law of inheritance as a datum or first principle universally known, and upon which their subsequent limitations are to work. In order to treat a matter of this universal consequence more clearly, it will (a) Vide sup. jx 237. " title to inherit laud by reason of {h) As to descent, see Co. Litt. " consang-uinity; as well where the 237 a — 250 a ; and the Act for im- " heir shall be an ancestor or colla- provemont of the law of inheritance. " teral relation, as where he shall (3 & 1 Will. 4, c. lOG.) In this Act, " be a child or other issue." the term "descent" means "the CHAP, XI. — OF TITLE BY DESCENT. 389 [be expedient to lay aside such matters as will only tend to breed embarrassment and confusion in an inquirer. We shall therefore decline considering at present, who are and who are not capable of being heirs, reserving that for the cliapter on escheats (f).] We shall also pass over descents by particular custom, as to all the sons in gavelkind and to the youngest in borough-English ; for these cannot con- veniently form a subject for special consideration in such a treatise as the present (d). And our present inquiry will therefore almost exclusively relate to the subject of descent in fee simple as generally established. [It may be right, however, before we proceed further, to make this preliminary remark with respect to the nature of the heir's title, — that no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is pre\dously dead. Nemo ed //ceres rivcnfis. Before that time, the person who is next in the line of succession is called an heir apparent or heir presionptive. An heir apparent is one whose right of inheritance is in- defeasible, provided he outlives the ancestor : as the eldest son, who must b}' the course of the common law be heir to the father whenever he happens to die. An heir pre- sumptive is one who, if the ancestor should die immediately, would be his heir ; but whose right of inheritance may be defeated by the contingency of some nearer heir being born : as a brother or nephew, Avhose presumptive suc- cession may be destroyed by the birth of a child ; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother or nephew, or daughter : in the former cases the estate shall be divested and taken away by the birth of a posthumous child ; and in the latter, it shall also be totally divested by the birth of a posthumous son {e).'] It may also be material to observe, that the estate (c) Vide post, c. xii. {e) 2 Bl. Com. 208. {d) Vide sup. pp. 63, 210—212. 390 BK. II. OF KIGHTS OF PKOyKRTY. — Fl'. 1. THINGS REAL. claimed by the lieir must necessarily be one tbat remained in the ancestor, or deceased owner, at tlie time of his death, and of which he made no testamentary disposition ; the title of an alienee in his lifetime, or of a devisee under his will, being preferable to that of the heir. These things being premised-, let us now examine the doctrine of descent itself ; or the rules according to which the heir to an estate in fee simple is to be ascertained, when the succession to it opens or becomes vacant upon the death of the proprietor. This branch of law is founded for the most part not on statute, but on the custom of the realm ; being in point of antiquity referable to a period at least as early as the reign of Henry the second (/) . At that time, indeed, its development appears to have been in some degree im- perfect ; but it had attained to complete maturity in the reign of Henry the third, or at latest in that of Edward the first [g) ; after w^hich, it underwent no change for the space of more than five hundred years, until at length partially reconstructed in the year 1833 by the Act of 3 & 4 Will. IV. c. 106, passed " for amendment of the law of inheritance " {It). In proceeding to delineate the present state of this branch of the law, it will be expedient in the first instance to mention that there are a few rare cases of descent which will require a particular and separate consideration, which consideration they will accordingly receive before the chapter closes ; but passing these by for the present, and confining ourselves to the ordinary and general view of descent, we may lay down with respect to it the follow- (/) This appears from the treatise ((/) Hale's Hist. C. L. c. 11; of Glauville (written about the year Hist. Eng. Law, by Reeves, vol. i. 1181), -whose account of the law of p. 311 ; vol. ii. pp. 246, 317. inheritance comprises all the j^rin- (/() This statute was founded on cipal features of the system now the fii'st report of the commissioners existing. appointed in 1828, to revise the laws nf real property. r : v/Ai/z/^/ ^^^ //w G^^/^.^^/^ J^^/Y I lcn,!^n^muJ frr Mffi" ButUf^,'rth.]itrSlafti^i lw*MUitun.7.FUHSl't^t. CHAP. XI. — or TITLE I3Y DESCENT. 391 ing rules or canons applicable to all descents taking place on a death on or after 1st January, 1834 (/) : — I. In every case the descent shall he traced from the purchaser. This primary law of descent is laid down in the form here propounded by 3 & 4 Will. IV. c. 106, s. 2, and the Act gives its own definition of the sense in which the expression of the purchaser is here to be understood — a definition not entirely harmonizing with that of the word pwchane, as given in the last chapter; for (in substance) the statute defines the purchaser to mean the person who last acquired the land otherwise than by descent (/.•) . (j) The Inheritance Act docs not affect the mode of tracing- descent in a manor subject to a particular custom of descent (Muggieton v. Baruett, 2 PI. & N. 653). The statute also applies to no descent which took place on a death j^'ior to the 1st of Jan. 1 834. For such de- scents, we must refer to the system of Blackstone, according to which the annexed Table of Descent (No. I.) is arranged, and of which the Rules (or Canons) are as follows — Rule 1. That inheritances shall lineally descend to the issue of the person who last died actually seised, in iiijinitxm, but sliall never lineally ascend. Rule 2. That the male issue shall be admitted before the female. Rule 3. That when there are two or more males in equal degree, the eldest only shall inherit, but the females altogether. Rule 4. That the lineal descend- ants in infmitmn of any person de- ceased shall represent their ancestor ; that is, shall stand in the same place as the person himself would have done had he been living. Rule 5. Tluit, on failiu-e of Lineal descendants or issue of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first pur- chaser, subject to the three pre- ceding rules. Rule 6. That the collateral heir of the person last seised must be his next collateral kinsman of the whole blood. Rule 7. That in collateral in- heritance the male stocks shall be preferred to the female (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near), imless where the lands have in fact descended from a female. {k) 3 & 4 Will. 4, c. 106, s. 1. The words of the Act are, that the purchaser ' ' shall mean the person " who last acquii'ed the landother- ' ' wise than by descent ; or than by " any escheat, partition, or enclo- " s?ire, by the effect of which the " laud shall have become part of or " descendible in the same manner as " otlicr land acquired by descent," 392 BK. II. OF RIGHTS OF PROFEETY. — FT. I. THINGS REAL. The effect tlien of the Rule above laid down is as follows : that if the deceased owner of an estate in fee simple came to it hy purchase, that is, in any other manner than by descent, the party claiming it as heir must make //iin the propositus, or person from whom con- sanguinity is to be traced ; while, on the other hand, if he came to it by descent from some purchasing ancestor, ihat ancestor must be made the propositus. Thus, if John Stiles, in the annexed Table of Descent (No. II.), die the owner of an estate, which he acquired by purchase, any person claiming it as heir must prove that he is heir to John Stiles ; that is, stands in such relation of con- sanguinity to John Stiles as the laws of descent here- after laid down make sufficient in the particular case : but if John die owner of an estate which descended to him from Geoffrey his father, by whom it was originally purchased, the claimant must prove that he is heir to Greoffrey .the father ; who becomes in that case the ^;ro- positus instead of John, the last owner : one consequence of which is, that no relation to John ex parte maternd can, as such, ever inherit. Again, if the estate descended to John from Lucy Baker, his mother, who was the pur- chaser, the descent must in that case be traced from her ; and John's relations ex parte paternd are, on the same principle, necessarily excluded. It often happens, how- ever, especially in long descents, that it is uncertain by whom an estate was originally purchased ; and against this difficulty of proof the act of parliament provides by the following rule of evidence, which is to be understood as a necessary supplement to the rule of descent under consideration ; viz. that the last owner, or, (as the Act describes him) the person " last entitled to the land" (w), (/«) In this statute the expres- " and profits thereof " (3 & 4 "Will, sion '^ last entitled,''^ is made to 4, c. 106, s. 1); and the vrord extend "to the last person who "land" to all hereditaments, " had a right thereto, whether he whether corporeal or incorjioreal, " did or did not obtain the posses- of whatever tenure, and whether <' sion, or the receipt of the rents the estate is in possession, rever- CHAP. XI. — OF TITLE BY DESCENT. 093 shall be considered to have been tlie purebaser, unless it sball be proved that he inherited it ; and that the same rule shall be constantly applied at every step upward of the pedigree (ii). Therefore if John Stiles is the person last entitled to an estate, and dies, and it does not appear whether lie purchased it or not, the claimant must prove descent from him. So if he inherited it from his father Geoffrey, but it is unknown whether Geoffrey purchased it or not, the claimant must make himself heir to Gcojf'rey ; and, on the same principle, if it can be shown that Geoffrey took by descent from George, then George must be made the propositus. This 1st canon, though newly introduced by the Inherit- ance Act of 1833, is mainly founded on the antient maxim, that none shall clnim as heir who is not of the blood of the j)i(rehaser (o) ; [a maxim peculiar to our own laws, and those of a similar original ; for it was entirely unknown among the Jews, Greeks, and Eomans, none of whose laws looked any further than the last owner of the estate, but assigned him an heir without considering by what title the estate was gained, or from what ancestor derived. But •the antient law of Normandy agreed with ours in this respect ; nor indeed is that agreement to be wondered at, since the law of descent in both is of feudal origin, and this rule cannot otherwise be accounted for than by recur- ring to feudal principles (p). When feuds first began to be hereditary, that is, subject to succession according to consauguinity, it was made a necefsary qualification of the heir who would succeed to a feud, that ho should .be lineally descended from the first feudatory or purchaser (7). In consequence whereof, if a sion or remainder, &u. (3 & 4 " but only tlic bluod of the fii'st Will. 4, c. 106, s. 1.) " purchaser."— Co. Litt. 12 a; aud («) Sect. 2. see 2 Bl. Com. 220. (o) " And note, it is an old and (p) Grand Coustum. c. 2.5. " true maxim in law, that none (fj) 1 Feud. 20. And see Wood " shall inherit any lands as heir, r. Douglas, 30 Ch. Div. 327. 394 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [vassal died seised of a feud of liis own acquiring, or fcndum novum, it could not descend to any but his own offspring, — not even to his brother, — because he was not descended nor derived his blood from the first acquirer. But if it was feudum aiit/qiiuiji, that is, one descended to the vassal from his ancestors, then, on failure of his own descendants, his brother, or such other collateral relation as was de- scended (or derived his blood) from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule : ^'■f rater fratn sine legitimo hcerede defuncto, in heneficio quod eorum jjafris fuit, succedat ; sin autem unus e fratrihus a domino feudum (icceperit, eo defuncto sine legitimo hcerede, frater ejus in feudum non succeclit " (/•) . The true feudal reason for which rule was this, that what was given to a man for his personal service and personal merit, ought not to descend to any but the heirs of his person ; and therefore as now in estates tail, (which a proper feud very much resembled,) so in the feudal donation, " nomen Jucredis in prima invest it ura, exprcssum taninm ad deseendcntes ex corpore jjrimi vasal/i extenditur, et non ad collateralcs, nisi ex eorpore priuii vasalU sive stipitis descendants^ {s). The will of the donor or original lord, when feuds were turned from life estates into inheritances, not being to make them absolutely here- ditary, like the allodium, but hereditary only stih modo (f); not hereditary to the collateral relations or lineal ancestors, or husband or wife of the feudatory, but to the issue descended from his body only.] Under this system therefore it was necessary that a person claiming by descent on the death of the last pro- prietor should prove himself not only to be of the blood of, but lineally descended from, the purcliaser ; for neither in Si feudum novum nor in a feudum antiquum were the col- lateral relations of the purchaser entitled to succeed. How- ever, in process of time, when the feudal rigour Avas in part (>•) 1 Feud. sect. 2. {() As to (dlodium, vide sup. pp. («) Craig, 1. 1, tit. 9, sect. 36. 174, 18;). CHAP. XI. — OF TITLE liY DESCKXT. 39o abated, a method was invented to let in to the inheritance the collateral relations, on failure of the descendants of the grantee, by granting him a femlum novum to hold utfeudum antiquum; that is, with all the qualities annexed to a feud derived from liis ancestors iii) ; and then (though the lineal ancestors themselves were always excluded, for reasons which will hereafter appear,) yet the collateral rela- tions of the purchaser, — that is, the descendants of those ancestors, — were admitted to succeed, even in in fin if urn, because they might have derived their blood from the first imafjinanj purchaser. [For since it was not ascertained in such general grants whether this feud should be held lit feudum jxiiennon or fcudum avifum, but merely that it should be held utfeudum antiquum, as a feud of indefinite antiquity, — that is, since it was not ascertained from which of the ancestors of the real purchaser this feud should be supposed to have descended, — the law would not ascertain it either, but would suppose any of his ancestors ^jro re natci to have been the first purchaser. And therefore it admitted any of his collateral kindred (who had the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors {v).~\ Of this natm-e, it is said, were all the feudal grants of fee simple estates in this kingdom {x). They were no other than grants of ^feudum novum, to be held ut antiquum, or feud of indefinite antiquity : wliile, on the other hand, a gift in tail (where none but the lineal descendants of the first donee are admitted) proceeded on the principle of Vi fcudum stride novum. But while the old feudal requisite of a lineal descent from the real purchaser was thus substantially set aside, it continued nevertheless to be necessary that the claimant should be of his hlood ; for no person, without being (m) 2 Bl. Com. 221. (.c) See Wright's Tenures, 180; {v) See the case of Kynnaircl v. 2 Bl. Com. 222. Leslie, Law Rtp., 1 C. 1'. 389. related to liim eitlier lineally or collaterally, could be sup- posed to be lineally descended from tbe imaginary pur- chaser. And as it was necessary tbat tbe claimant sbould be of bis blood, so it was from bim, as a root, tbat tbe descent was in some cases to be traced. For if tbe estate wbicb descended was of a kind in wbieb tbe owner could not acquire actual seisin of tbe land, (as in a reversion or remainder expectant upon a freebold, in wbieb case tbe actual seisin belonged to tbe particular tenant,) tbe rule was tbat tbe claimant must trace bis descent from (or, as it was usually expressed, mahe liimself heir to,) tbe pur- chaser [y). Supposing tbe estate descended, however, to have been of a kind in wbicb the owner could acquire actual seisin, as in the case of an estate in possession, or a re- version or remainder expectant on a term of years (s), the rule was different; for here another antient maxim intervened, and required that the claimant should mahe Jiiniself heiv to tlie person last actually seised of the inherit- ance {a) ; every person who obtained an actual seisin, whether he were an original purchaser, or derived bis title by descent, being considered as a new root, from which all future claimants were to spring ; a principle that was briefly expressed by the adage scisinn facil stipi- tem {h). Tlius if Geoffrey Stiles, the father, died seised (y) EatcliflPe's case, 3 Rep. 42 a ; Blackstone's explanation of this Co. Litt. 15 b, 191 b ; Burton's principle is, tliat the law required Compend. 112; Doe v. Hutton, notorietj' of possession as evidence 3 Bos. & Pul. 649, 656; Roe d. that the ancestor had that property- Thome V. Lord, 2 Bl. Rep. 1099. in himself which was to be trans- (s) As to an estate in possession, mitted to his heir ; "which noto- and one in reversion, vide sup. "riety," says he, " had succeeded pp. 312 — 320. " in the place of the antient feudal {a) "A man that claimcth as heir " investiture, whereby, while feuds "in fee simple to any man by de- "were precarious, the vassal on " scent must make himself heir to " the descent of lands was formerly "him that was last seised of the " admitted in the lord's court, and " actual freehold and inheritance." "there received his seisin in the — Co. Litt. 11 b; and see Rat- " nature of a renewal of his ances- cliffe's case, 3 Rep. 41 b, 42 a. " tor's grant, in the presence of the (i) Hale's Hist. C. L. c. 11. " feudal peers; tiU at length, when CHAP. XI. — OF TITLE HY DESCENT. 397 of laud of which he was the purchaser, and which de- scended to John as his heir, and John died before entry, the next claimant was to make himself heir to Geoffrey; but if John entered and obtained actual seisin, it would then be necessary to claim as heir not to Geoffrey, but to John ; and the difference was material ; because the heir to the person last seised and the heir to the purchaser were not necessarily the same person. If John, for example, died leaving a half brother, his father's son, the latter might possibly, on John's decease, be next heir to Geoffrey the father ; but it was impossible, as the law then stood, that he should be heir to John, descent not then being allowed between those related by the half blood (c). The rule of which we speak did not make it the less necessary, indeed, that the claimant should be of the hlood of the purchaser ; for this, in every case of descent, was univer- sally required : but if he had that qualification, and could make himself heir to the person last seised, he was entitled to succeed, whether he could make himself heir to the purchaser or not ; while, on the other hand, his being heir to the purchaser was not sufficient, unless he was also heir to the person last seised {d). Thus if John Stiles had purchased land and died, leaving no other kindred than his father's brother and his own brother of the half blood, (his father's son), the uncle would have been his heir, as the brother (by the rule already noticed) could not have claimed in that character; and if the uncle had also ob- tained seisin and died, without other kindred than John's half brother, the latter would then have been entitled to succeed, for he would have been heir to the person last "the right of succession became " lent to the formal grant of seisin, "indefeasible, an entry on any "and made the tenant capable of "part of the lands within the "transmitting his estate by de- " county (which, if disputed, was "scent." — 2 Bl. Com. 209. "to be afterwards tried by those (<■) Co. Litt. 15 b. "peers), or other notorious posses- [d] Hale's Hist. C. L. c. 11. " .sion, was admitted as equiva- 398 BK. 11. OF lUGHTS OF PROPERTY. — PT. 1. THINGS REAL. seised, and of the blood of the purchaser, though not the heir of the purchaser {e). On the other hand, if John Stiles had inherited land purchased by Geoffrey, and died seised without other kindred than his half brother (his father's son), the latter could not have inherited, because unable to make himself heir to John ; and yet he would have been heir to Greoifrey. It is to be observed, however, that in many cases to trace descent from the person last seised, amounted in effect to the same thing as tracing descent from the purchaser, For where the last owner (or person on whose death the succession became vacant) happened to have been in fact the purchaser of the estate, he would also be the person last actually seised. Thus if it were an estate in possession acquired by feoffment, this implied (as elsewhere shown) a real delivery to him of the actual seisin (,/) ; and supposing it to have been acquired by devise (under the Statute of Wills), or by a conveyance under the Statute of Uses (of the nature of which we shall speak hereafter), the case would be in effect the same ; for the actual seisin (so far at least as would suffice to make him the root of descent) would here be transferred to him without entry, by construction of law {(/) . So if his estate were a reversion or remainder in fee expectant on a term for years, he would be clothed with an actual seisin of tlie fee (upon a principle before (e) H. Chit. Desc. 115. as nothing short of this will suffice (/) Vide sup. p. 233. to satisfy the tenus of the rule, sci- [g) Per Holt, 1 Show. 74 ; R. v. shin facie stipitem. It is true, that Sutton, 3 A. & E. 611; and see Lord Coke appears to consider the Watk. Desc. c. 1, s. 6. The ex- seisin acqiiired under a devise or the pression \ised by the learned author Statute of Uses as a seisin in law ; of that treatise is, that "such a pro- but he probably means by this, perty " is thereby "vested or fixed" an actual seisin by construction of in the purchaser, as to make the law. It is clearly more than a land descendible to his heirs. But seisin in law such as that of the as regards estates in possession, it heir, which requires to be com- Beems more correct not to depart pleted by entry, and is no actual from the expression actual seisin, seisin. (See Co. Litt. Ill a, 266 b.) CHAP. XT, — OF TITLE BY DESCENT. o09 explained), through the medium of the possession of the partioulav tenant (//). In all such cases, therefore, if the claimant made himself heir to the purchaser, he would also make himself heir to the person last actually seised ; and as he would thereby moreover prove his consanguinity to the purchaser, he would satisfy both the conditions required to make out a descent in fee simple. These explanations will suffice not only to explain the natm-e of the new rule now laid down by the Inheritance Act, hut to prove also its convenience and propriety. It discards in effect the maxim of seisina facit stipitem ; and establishes in a general sense the rule, which formerly obtained only in certain instances, that descent shall be traced from the purchaser. In point of simplicity and uni- formity of system, the advantage is consequently obvious ; while, on the other hand, nothing is sacrificed which it could be useful to retain. In very numerous instances the descent (as we have seen) was in effect already traced from the purchaser ; and though it w^as otherwise in cases where the last owner had become entitled by descent to an estate < of a kind in which actual possession could be acquired, no sufficient reason could at the present day be sho^vn (what- ever may formerly have existed) in favour of such a dis- tinction. Indeed the maxim of seisina facit stipitem was attended with material inconvenience ; for it was sometimes difficult to determine w'hat would amount to a seisin sufficient to constitute a stipes ; and highly unsatisfactory besides, that the right to the succession should in any case depend on so unimportant a circumstance, as the omission of the owner to make entry, before liis death, on the land he had acquired by inheritance (/). (A) Vide sup. p. 322. wlio, after purchasing lands in fee (i) See First Real Prop. Eep. simple, dies intestate leaving two p. 15. The operation of the 1st daughters, whereof one dies intes- Canon requiring descent to be traced tute leaving a son. And it has in every case from the pvirchaser, been established, that to such son has been the subject of discussion the whole of his mother's moiety in the pniticul.n- iiistrtnfo of a mnn passes, as being, in respoet of that 400 BK, II. or RIGHTS OF rROPERTV. — FT. I. THINGS REAL. Before we dismiss the Rule under consideration, it must be remarked that though the " purchaser " is defined in the Act as the person who last acquired the land other- wise than by descent, yet to apply the definition properly in cases of a certain description, it is necessary to take some other parts of the statute into account. Thus it might be doubted, in the absence of a positive rule, whether under given circumstances a man acquires by descoit or not, so as to bring the case within the definition; as where a man devises laud in fee "to my heir," or to John Stiles — he being the person who, on the testator's death, becomes his heir. In this case, if the devise was made in such form that the devisee would take an estate in fee, of precisely the same quality that he would other- wise have taken by descent, it was the rule of the common law that the descent would take effect and not the devise ; for the law gave the preference to the descent as the elder title [j). The contrary rule, however, which is manifestly more consonant with reason and convenience, is now esta- blished by the legislature, it being provided by the Inhe- ritance Act (sect. 3j, " that when any land shall have been " devised by any testator who shall die after 13 1st De- " cember, 1833, to the heir, or to the person who shall be " the heir of such testator, such heir shall be considered " to have acquired the same as a devisee, and not by " descent" (/.•). Again, it might be doubted, in the absence of a positive rule, what amounts to the last acquisition of an estate, so as to bring the case within the meaning of share, the heir of the purchaser. protection of the lord, who would See Cooper v. France, 14 Jur. 214 ; lose the fruits of his seignioiy if and Lord St. Leonards on Real the heir did not take by descent. Property Statutes, p. 282. {k) As to the effect of this pro^i- (y) 2 Bl. Com. 242; 2 Saund. by sion, vdth regard to a person who Wms. 7, n. (4) ; 1 Roll. Abr. 620 ; being both heir and devisee elects Doe V. Tirains, 1 Bam. & Aid. 530. to enter as heir, see Bickley v. This is the reason assigned in the Bickley, Law Rep., 4 Eq. 216; and books. It seems probable, however, where he elects to enter as devisee, that the rule had a feudal object, see Wood v. Douglas, 30 Cli. Div. and that it was intended for the 327. CHAP. XI. — OF TITLE 15Y DESCENT. 401 tiie definition ; as where laud is limited by any assurance to the person, or to the heirs of the person, who shall have thereby conveyed the land ; for the rule of the common law was that such person acquired nothing by such assurance, but was entitled as of his former estate (/). It is, however, now provided by the Inheritance Act (sect. 3), " that when any land shall have been limited by any " assurance executed after the 31st of December, 1833, to " the person or to the heirs of the person who shall thereby " have conveyed the same land, such person shall be con- " sidered to have acquired the same as a purchaser by " virtue of such assurance, and shall not be considered to " be entitled thereto as of his former estate or part " thereof." II. A second general Eule or canon is, that inheritances shall in the first place lineally descend to the issue of the purchaser, in in fin if ion. The principle of placing the lineal descendants first in succession to their ancestor is, under all systems of descent, invariably adopted, and may be said to be of universal obligation or propriety; for even if it be held that the laws by which property is transmitted from one man to another, are in every case of an arbitrary nature, and juris positiii only (a doctrine which there is great difficulty in admitting as regards the succession of relatives), yet at least, in the choice of rules, it may happen that there are some much more consonant than others to the common feelings of mankind and the natural sense of what is proper ; and such principles as these seem universally to suggest, that whenever a right of property transmissible to representa- tives is admitted, the possessions of the parents should go, upon their decease, in the first place to their offspring, as those to whom they have given being, and for whom they are therefore bound to provide {in). (/) Sec Co. Litt 22. (w) 2 Bl. Com. 210. vol,. T. I) I) 402 BK. II. OF RIGiHTS OF PROPERTY. — PT. 1. THINGS REAL. III. "We may lay it down as a third Rule, that the children of the purchaser are preferred to their own issue ; that, among such children, males are preferred to females ; and that an elder male is preferred to a younger, but females (where there are several) take together. 1. The children of the purchaser are preferred to their own descendants, because (among other obvious reasons), they are nearer to him in blood ; accordingly, if any child of the purchaser, living at his decease, has issue also living at the same period, the estate will descend to the child (who is more nearly related to the purchaser), and not to the grandchild or other descendants, who are more remote. 2. Among the children of the purchaser, males take before females, or, as our male lawgivers have expressed it, the worthiest of blood shall be preferred (;^). Thus if John Stiles hath two daughters, Margaret and Charlotte, and afterwards two sons, Matthew and Grilbert, and dies : first Matthew, and (in case of his death without issue) then Grilbert, shall be admitted to the succession, in prefer- ence to both the daughters. [This preference of males to females is entirely agree- able to the law of succession among the Jews [o), and also among the states of Greece, or at least among the Athe- nians (p) ; but was almost totally unknown to the laws of Rome (such of them, at least, as are now extant), wherein brethren and sisters were allowed in general to succeed to equal portions of the inheritance (y). Without entering into the comparative merits of the Roman and the other constitutions in this particular, or examining into the greater dignity of blood in the male or female sex, it is sufficient to observe that our present preference of males to females seems to have had its som-ce in the feudal law ; for though our British ancestors (the Welsh) appear to have given a preference to males (r), yet our Danish pre- («) Hale' s Hist. Com. Liuv, c. 11. [q] Inst. iii. 1. G. (o) Numbers, chap, xxvii. (/•) Stat. Wall. 12 Edw. 1. ip) Petit. LL. Attic, lib. 6, tit. G. ClIAI*. XT. — OF TITLF, F.Y DESCENT. 403 [decessors who succeeded them seem to liave made no dis- tinction of sexes, but to have admitted all the children at once to the inheritance (.s'). But the feudal law of the Saxons on the continent, (which was probably brought over hither and first altered bj a law of King Canute,) gives an evident preference of the male to the female sex. ^^ Pater aid mater defuncti, filio non filice hcereditatem relin- '' quent. Qui defnnctus non fi lion sedfiUas rcliqiierit, ad eas " omnis hcereditas pcvtineat^^t). It is possible, therefore, that this preference might be a branch of that imperfect system of feuds which obtained here before the Conquest ; especially as it subsists among the customs of gavelkind, and as, in the charter or laws of King Henry the first, it is not (like many Norman innovations) given up, but rather enforced (^^). The true reason of preferring the males must be deduced from feudal principles ; for by the genuine and original policy of that constitution females could never succeed to a proper feud, inasmuch as they were incapable of performing those military services for the sake of which that system was established {.x) . But our law does not extend to the total exclusion of the females, as the Salic law and others, where feuds were most strictly retained. It only postpones them to males ; for though daughters are excluded by sons, yet they succeed where there is no son : our law, like that of the Saxon feudists before mentioned, thus steering a middle com-se between the actual rejection of females and the putting them on a footing with males.] 3. Primogeniture is established among the male chil- dren of the purchaser, but not among the female. [As if a man hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies ; Matthew, his eldest son, shall alone succeed to his estate, in exclu- sion of Grilbert, the second son, and both the daughters ; («) Wilkins, Leges Anglo-Sax. («) Leg. Heu. 1, c. 70. LL. Canut. c. 68. (.*) 1 Feud. 8. {t) Tit. 7, ss. 1 and 4. uu2 404 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [but if belli the sons die without issue before the father, the daug]iters Margaret aud Charlotte shall both inherit the estate as coparceners [y). This right of primogeniture in males seems antiently to have only obtained among the Jews, in whose con- stitution the eldest son had a double portion of the in- heritance {z) ; in the same manner as with us, by the laws of King Henry the first, the eldest son had the capital fee or principal feud of his father's possessions, and no other pre-eminence {a) ; and as the eldest daughter had afterwards the principal mansion, when the estate descended in coparcenary [h) . The Greeks, the Romans, the Britons, the Saxons, and even originally the feudists, divided the lands equally; some among all the children at large, some among the males only. This is certainly the most ob^dous and natural way, and has the appearance (at least in the opinion of younger brothers) of the greatest impartiality and justice. But when the emperors began to create honorary feuds or titles of nobility, it was found necessary, in order to preserve their dignity, to make them impartible, or as they styled them, fcuda individua, and in consequence descendible to the eldest son alone (r). This example was further enforced by the inconveniences that attended the splitting of estates : namely, the division of the military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the in- ducing younger sons to take up with the business or idleness of a country life ; instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical employments (r/). These reasons occasioned an almost total change in the method of feudal inheritances abroad, so that the eldest [ij) Litt. s. 5; Hale's Hist. C. L. («) Leg. Hen. 1. c. 70. c. 11. As to coparceners, vide sup. {b) Glanv. 1. 7, c. 3. p. 346. \r) 2 Feud. 55. (:) Seidell dc Succ. Ebr. c. 5. {d) Hule'.s Hist. C. L. c. 11. CHAP. ,\1. — OF THI,E !5Y DESCENT. 405 [male began universally to succeed to the wliole of the lands, in all military tenures ; and in this condition the feudal constitution was established in England by William the Conqueror. Yet we find that socage estates frequently descended to all the sous equally, so lately as when Glan- ville wrote, in the reign of llenrj- the second {c) ; and it is mentioned in the Mii-rour, as a part of our antient consti- tution, that knight's fees should descend to the eldest son, and socage fees should be partible among the male chil- dren (/). However, in Henry the thii'd's time we find by Bracton, that socage lands, in imitation of lands in chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law now stands (g) ; except, indeed, in Kent, where they gloried in the preservation of theu' antient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons {//), — and except, also, in some particular manors and townships, where their local customs continued their descent, sometimes to the youngest son only, or in other more singular methods of succession. As to the females, they are still left as they were by the antient law ; for being all equally incapable of performing any personal service, and therefore one main reason for preferring the eldest not applying, such preference would have been injurious to the rest ; and the other principal purpose (the prevention of the too minute subdivision of estates) was left to be considered and provided for by the lords, who had the disposal of these heiresses in marriage. However, the succession by primogenitm'e, even among females, takes place as to the inheritance of the croicn ; wherein the necessity of a sole and determinate succession is as great in the one sex as in the other (/). And the right of sole succession, though not of primogeniture, is also established with respect to female dignities and titles of honom". For if a mau hold an earldom to him and the (e) Glanv. 1. 7, c. 3. {h) Somner, Gavelkind, 7. (/) Mirrour, c. i. s. 3. (j) Co. Litt. 165 a. {(j) Bract, lib. ii. cc. 30, 31. 406 BK. II. 01' KlGllT.S OF rROPKRTV. — PT. I. THINGS HEAL. [lieii'S of his body, and die, leaving only daughters, the eldest shall not, as a matter of course, be countess, but the dignity is in suspense or abeyance till the king shall declare his pleasure ; for he, being the fountain of honour, may confer it on which of them he pleases (A-) ; in which disposition is preserved a strong trace of the antient law of feuds, before their descent by primogeniture even among the males was established ; viz. that the lord might bestow them on which of the sons he thought proper ; *^ progres- sion est nt ad fiJios devcnirct, in quern scilicet dominus velJet heneficium confirmare^' (/).] The last Eule supposed all the children of the purchaser to be living at his decease ; but in the case of the death of any of them, then — lY. A fourth Eule is, that the issue of the children of the purchaser represent or take the place of their parents in infinitum ; the children of the same parent being always subject (among each other) to the same law of inheritance as contained in the thiixl Rule. [Thus the child, grandchild, or great-grandchild, either male or female, of the eldest son, succeeds before the younger son, and so in infinitum; and these represen- tatives shall take neither more nor less, but just so much as their principals would have done (?;/). As if there be two sisters, Margaret and Charlotte, and Margaret dies, leaving six daughters ; and then John Stiles, the father of the two sisters, dies without other issue ; these six daughters shall take among them exactly the same as their mother Margaret would have done had she been living, — that is, a moiety of the land of John Stiles, in coparcenary ; so that upon partition made, if the land be divided into twelve parts, thereof Cliarlotte, the surviving sister, shall have six, and her six nieces, the daughters of Margaret, one a-piece. (A) Co. Litt. 166 a. (w) Hale's Hist. C. L. c. 11. (/) 1 Feud. 1. CHAP. XI. — OF TITLE BY DESCENT. 407 [This taking by representation is called succession per sf/rpcs, according to the roots ; since all the branches inherit the same share that their root, whom they repre- sent, wonld have done. And in this manner, also, was the Jewish succession directed (ii). In our law, indeed, it is a necessary consequence of the double preference given, first, to the male issue, and next to the first-born among the males. For if all the children of three sisters were to claim j^o' cripif-a, in their own right, as next of kin to the ancestor, without any respect to the stocks from whence they sprung, — and those children were partly male and partly female, — then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters ; or else the law in this instance must be inconsistent with itself, and depart from the preference which, by the first rule, it gives to the males and the firh^t-born, in the descent to issue. Whereas by dividing the inheritance according to the roots or stirpes, the rule of descent is kept uniform and stead}^ ; the issue of the eldest son excludes all other pretenders, as the son himself, if living, would have done ; but the issue of two daughters divide the inheritance between them, pro- vided their mothers, if living, would have done the same : and among these several issues or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have ob- tained at the first among the roots themselves — the sons or daughters of the deceased. As if a man hath two sons, A. and B., and A. dies, leaving two sons, and then the grandfather dies : now the eldest son of A. shall succeed to the whole of his grandfather's estate; and if A. had left only two daughters, they should have succeeded also to equal moieties of the whole, in exclusion of B. and his issue. But if a man hath onl}^ three daughters, C, D. and E., and C. dies, leaving two sons, D. leaving two daughters, and E. leaving a daughter and a son who («) ScUlen de Succ. Ebr. c. 1. 408 15K. II. OF lUGHTS OF rROPEKTY.— rX. I. THINGS REAL. [is younger than liis sister ; liere, when the grandfather dies, the eldest son of C. shall succeed to one-third, in exclusion of the younger; the two daughters of D. to another third, in coparcenary ; and the son of E. to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in infinition. Yet this right does not appear to have been thoroughly established in the time of Henry the second, when Grlan- ville wrote : and therefore, in the title to the crown espe- cially, we find frequent contests between the younger (but surviving) brother and his nephew (being the son and representative of the elder deceased), in regard to the inheritance of their common ancestor ; for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew, though the nephew, by repre- senting his father, has in him the right of primogeniture. The uncle also was usually better able to perform the services of the fief, and besides had frequently superior interest and strength to back his pretensions and crush the right of his nephew. And even in times compara- tively modern, we find that proximity of blood occasionally took the place of representative primogeniliu^e, c. g. in lower Saxony, where the younger surviving brother was admitted to the inheritance before the son of an elder deceased, — which occasioned the disputes between the two houses of Mecklenburg- Schwerin and Strelitz, in 1692 (o). Yet Glanville with us, even in the twelfth century, seems to declare for the right of the nephew by representation ; provided the eldest son had not received a provision in lands from his father, or (as the civil law would call it) had not been forisfamiliated in his lifetime {})). King John, however, who kept his nephew Arthur from the throne, by disputing the right of representation, did all in his power to abolish it throughout the realm {q) ; but in (o) Mod. Un. Hist. xlii. 331. {q) Halo's Hist. C. L. c. 11. {p) Glanv. 1. 7, c. 3. CHAP. XI. — OF TITLE BY DESCENT. 409 [the time of his son, King Ilenrj the third, we find the rule indisputably settled in the manner we have here laid, it down (r).] And thus much for descents to the issue of the purchaser. V. A fifth Ivule is, that on failure of the issue of the purchaser, the inheritance shall descend to the nearest lineal ancestor then living in the preferable line; — sup- posing no issue of a nearer deceased ancestor in that lino to exist. Under this Rule we are to remark, that, 1. After the issue, the next descent is to the lineal ancestry. This principle is but recently adopted into our law (s), which, on failure of descendants of the deceased, would admit the descendants of his lineal ancestor (that is, his own collateral heirs), under coloiu' of a fiction formerly explained (t) ; but always excluded the lineal ancestor himself: so that the land would rather escheat to the lord than ascend to a father or a grandfather (u) ; to illustrate which the inheritance of an estate is compared, by an antient writer, to the descent of a falling body. " Descendit Jus (says Bracton) quasi pouderosion quid, cadens dcorsum recta lined; et nunq^Knii re-asccndit ed via qua descoidif" (.r). This resulted, like many other of our institutions, from the doctrines of feudal tenure. [For it was an express rule of the feudal law, that " succcs- sionis feudi talis est natura quod oscendentes non sucee- dunt" (y), and we find the same principle recognized in (/•) Bract, lib. ii. c. 30, s. 2. (.c) Bract, lib. ii. c. 29. It has (.'>■) It was, however, the rule been remarked that the words cd among the Anglo-Saxons. See rid qua dc.scriufit are a necessary Hallam's Middle Ages, vol. ii. p. qualification. For the inheritance 4G7, 7th ed., citing Leges Hen. I, might ascend indirect li/, as from c. 70. the son to the uncle. — Coleridge's (1) See Rule I. Blackstone, vol. ii. p. 212, n. (m) Litt. s. 3. (y) 2 Feud. 50. 410 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [the old law of France (s) . Om- Henry tlie first indeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line {a) ; but this soon fell again into disuse, for so early as Glanville's time we find it laid down as an established law, that hcereditas nunquam ascend/ f which from that time remained an invariable maxim (b). These circumstances evidently show this antient peculiarity of our law to be of feudal original, and taken in that light, there were some argu- ments in its favoiu". For if the feud of which the son died seised was really feudiim antiquum, or one descended to him from his ancestors, the father could not possibly succeed to it, because it must have passed him in the course of descent before it could have come to the son, unless indeed it were feudum matcrnum, or one descended from his mother, and then the father would be excluded by the feudal maxim already considered, as he did not derive his blood from the purchaser. And if it were feudum novum, or one newly acquired by the son, the father would still be excluded by the same maxim : which was founded not only upon the personal merit of the vassal which might be transmitted to his children, but also upon this consideration of military policy, that the decrepit grandsire of a vigorous vassal would be but indifferently qualified to succeed him in his feudal services. Nay, even if this feudum novum were held by the son ut feudum antiquum, such a feud must in all respects have descended as if it had been really an antient feud ; and therefore could not go to the father, because if it had been an antient feud, the father must have been dead before it could have come to the son. Tlius, whether the feud were strictly novum or strictly antiquum, or whether it was novum held ut antiquum, in (z) Domat. part 2, lib. 2 ; Mon- boroug-h r. Davis, 1 P. Wins. 40. tesq. Esp. des Lois, lib. 31, c. 33. [h) See Glauv. (temp. Hen. 2), (rt) LL. Hen. 1, c. 70; Black- lib. 7, c. 1. CHAP. XT. — OF TITLE BY DESCENT. 411 [none of these cases could the father possibly succeed (c).] Such at least have been alleged, (and apparently with truth,) as the reasons of the rule which excluded the ascending line {d ) . The reasoning, however, was not con- sistently applied : for it has been justly observed, that if the father is not to inherit the estate, because it must be presumed to have already passed him in the course of descent, the elder brother should, upon the same \)x'u\- ciple, never be heir to the younger; and if the object is merely to pass over a decrepit feudatory, the father's eldest brother should never succeed to his nephew ; and yet a succession in both these collateral lines was always permitted by law (>i libct'inon xxnt, proxinuoi (jnu/iis in j)osse.'rent rule. (A) Si>oTiil)loofDcsceut(No.II.). (/,) Ibid. citiiiK Tacitus do Mor. (») 2 Bl. Com. 226. Germ. 21. U) Ibid. niAP. XT.— OF TITLE BY DESCENT. 413 ^'I. It may be laid down as a sixth E-ule, tliat, among tlie lineal ancestors of the purchaser, the paternal line (whether of the purchaser, or of any ancestor male or female,) is always preferred to the maternal. Therefore Geoffrey, the father, in the annexed Table of Descent, (No. II.,) will succeed rather than Lucy, the mother ; and if Greoffrey be dead, any of his male ancestors, George, Walter, and Richard, (according to their proxi- mity,) will have the preference to any of his maternal ancestors, or to the maternal ancestors of George, or Walter respectively ; though, on the other hand, all these maternal ancestors 's\-ill take precedence of Lucy, the mother, or any ancestor of hers. Upon the same principle, when upon failure of the male line of John's paternal ancestry, by the extinction of the blood of Eichard, we inquire for the next heir — we are to select Ann Godfrey, the mother of the more remote male paternal ancestor, in jireference to Christian Smith, the mother of a male paternal ancestor less remote ; for if we were to give the preference to Christian, we should be resorting to the maternal lino of George, instead of his paternal, which would be contrary to our rule. This preference of the paternal line is now founded on the express enactment of the Inheritance Act (3 & 4 Will. IV. c. lOH); which provides, (by sect. 7,) "that none " of the maternal ancestors of the person from whom the " descent is to be traced, nor any of their descendants, " shall be capable of inheriting, until all his paternal " ancestors and their descendants shall have failed (/) ; and " also that no female paternal ancestor of such person, " nor any of her descendants, shall be capable of inherit- " ing until all his male paternal ancestors and their de- " scendants shall have failed; and that no female maternal " ancestor of such person, nor any of her descendants, (/) As to -nhat proof of such Greenwoud, LaAV Rep., 2 Ex. D. failure is required, see Greaves r. 28^. 414 mv. ir. of rights of property. — ft. i. ttiings real. " sliall be capable of inheriting until all his male mater- " nal ancestors and their descendants shall have failed." Moreover, by section 8 of the same Act, ''where there shall " be a failure of male paternal ancestors of the person from " whom the descent is to be traced, and their descendants, " the mother of his more remote male paternal ancestor, " or her descendants, shall be the heir or heirs of such " person in preference to the mother of a less remote male " paternal ancestor, or her descendants ; and where there " shall be a failure of male maternal ancestors of such " person, and their descendants, the mother of his more " remote male maternal ancestor, and her descendants, " shall be the heir or heirs of such person in preference to " tlie mother of a less remote male maternal ancestor, and " her descendants." The first of these sections is a mere adoption of the principle of the former law, under which the blood of the paternal ancestor of the purchaser was constantly pre- ferred to that of the maternal ; the blood of the male paternal ancestor of the purchaser to that of the female paternal ; and the blood of the male maternal to that of the female maternal (w). [In the preference of relatives ex parte pafcvna, the English law is not singular, but warranted b}^ the ex- amples of the Hebrew and Athenian laws, as stated by Selden (;?), and Petit (o) ; though among the Greeks in the time of Hesiod (7;), when a man died without wife or children, all his kindred, without any distinction, divided his estate among them. It is likewise warranted by the example of the Roman laws ; wherein the agnatl, or re- lations by the father, were preferred to the cognati, or relations by the mother, till the edict of the Emperor Justinian abolished all distinction between them {q) . It is also conformable to the customary law of antient Nor- (?n) 2 Bl. Com. 234. [p) ©ioryovla, 606. («) De Succ. Ebr. c. 12. [q) Nov. 118. (o) LL. Attic. Lib. 1. tit. 6. CHAP. XI. — OF T1TI,E BY DESCENT. 415 [mandy, wliicli indeed in most respects agrees with our Englisli law of inheritance (r).] The principle no doubt originated (with us) in that maxim of the antient feudal institutions, to which we have already more than once referred, — that the heir must in all cases derive his blood, that is, be lineally descended, from the purchaser. An actual adherence to this rule would have excluded altogether both the lineal ancestors and collateral relations of a man who died tenant of land which he had acquired by jjurchasc ; but where his estate therein was in fee simple, his collateral rela- tions w^ere nevertheless (as we have seen) let in by the aid of a fiction which supposed him to hold it as a feud of indefinite antiquity ; in other words, to have acquired it, not by purchase, but by descent from an unknown antecedent purchaser, at some former period (s). The collaterals (however remote) were thus admitted, because they might be supposed to descend from this unknown purchas(!r, so as to satisfy the feudal maxim ; but upon the same principle those collaterals who would be most likely to have descended from him (supposing such an ancestor to have existed) were entitled to have the pre- ference over those whose pretensions would be less pro- bable. Now the collaterals of the last tenant, ex parte 2)afenid, would be more probably of the blood of this un- known purchaser, than those ex parte maternd ; because the estate presumably came to the last tenant through his male progenitors rather than his female. For, as, by the third and fourth Hules (which are founded on the com- mon law, and have always prevailed), males are constantly preferred (in the course of descent) to females, it is more likely that the land should have belonged to his father, than to his motlicr ; to his father's father than to his father's mother ; and so continually upwards. As to tlie 8th section of the Inheritance Act, it settled a question which had formerly been the subject of much (/•) See Gr. Coustum. c. 25 (.«) Vif^m/y =.2^;2/>^ Xhphtne Cttmmmtantttm Ikr lam afEmglmttd. V*-llt^at v> h ' U,r,U„,rjl^j /,<.. IIMuArr, 'Ih, CHAP. XT. — OF TITLE BY DESCENT. 427 from the pcrmn last entitled to the hind a.s if he had been the piirehaser thereof ^^ [t). Having now brouglit our account of tlie present law of descent to a close, we may remark, as the result of the investigation, that, upon the death of the owner of an estate in fee simple, we are to ascertain the heir, by con- sidering, first, who was the parchafier or quad purchaser of that estate, — meaning, by the term quau purchaser, the person from whom descent is to be traced (la if he had been the purchaser, as in the two cases just noticed : — and we are then to look for the heir, first, among his issue, — where the heir ■\\ill be his descendant next to him in blood, but subject to the principles which obtain as to sex, primo- geniture, and representation : and, failing his issue, among his lineal ancestors 0¥ their issue — where the heir will be his lineal ancestor next in blood in the preferable line, or the issue of such ancestor, if deceased ; applying the same law of succession as in the case of the purchaser's issue, and also the principle which prefers the whole to the half-blood. Before we conclude this branch of our inquiries, how- ever, it may not be amiss to applij the rules more parti- cularly, and to supply the reader with a short sketch of the manner in which we must search for the heir of a person, — as John Stiles, — who dies entitled to land, of which he was the purchaser or quani purchaser (»). In the first place succeeds the eldest son, Matthew Stiles, or his issue, No. 1. If he and his heirs bo extinct, then Grilbert Stiles, and the other sons respectively in order of birth, and their issue. No. 2. In default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue. No. 3. On failm-e of the descendants of John Stiles, liis father Geoffrey (being his nearest lineal ancestor in the preferable line) is admitted, No. 4. Then {() The object of this provision p. 438. will appear in the next chapter, («) SeeTableofDescent(No.II.). 428 I?K. II. OF IllGHTS OF rUOPERTY. — PT. T. THINGS HEAL. the issue of his father, viz., first, Francis Stiles, the eldest brother of the whole blood or his issue, No. 5 ; then Oliver Stiles and the other whole brothers respectively, in order of birth, or their issue, No. 6 ; then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue, No. 7 ; then the son of GreoiTrey (the pa- ternal brother of the half-blood). No. 8, or his issue ; and the paternal sisters of the half-blood, No. 9, or their issue. In default of them, George Stiles, the paternal grand- father, is admitted, No. 10, and then his issue, viz., first, his issue of the whole blood with John, No. 11, then his issue of the half-blood with John, No. 12. In default of these, "Walter Stiles, the paternal grandfather's father, is admitted. No. 13. Then the issue of "Walter, viz., first, his issue of the whole blood with John, No. 14, then his issue of the half-blood, No. 15. In default of these, Richard Stiles, the paternal grandfather's paternal grand- father, is admitted. No. 16, or his issue. No. 17, and so on, in the paternal line of Walter Stiles, in ii{fiiiifu)>/. On failure of this line (this is supposing the decease of Iliehard, and of all his maternal and paternal ancestors, and the failure of their issue both of the whole and of the half-blood), we are next to resort to the maternal line of Walter Stiles, rather than of a nearer male ancestor ; and the paternal grandfather's paternal grandmother, Ann Godfrey (according to the maiden name). No. 18, will consequently be the person next entitled to succeed, and po on in the maternal line of Walter Stiles, in infinitum. On failure of which we are to resort to the maternal line of George Stiles ; and the paternal grandfather's mother, Cliristian Smith, No. 19, will be the person next entitled, and then her issue of the half-blood to John, No. 20, Tlion the paternal . grandfather's maternal grandfather, "William Smith, No. 21 ; and then his issue. No. 22 ; and so on in the paternal line of Christian Smith, i)i infill if init. On failure of which, we are to resort to her maternal lino; and the paternal grandfather's maternal CHAP. XI. — OF TITLE HY DESCENT, 429 grandmotlier, Jane King, No. 23, will be the person next entitled, and so on in the maternal line of Christian Smith, ■in inji lit turn. On failure of which we are to resort to the maternal line of Geoffrey Stiles; and the paternal grandmother, Cecilia Kempe, No. 24, will be the person next entitled ; and then her issue of the half-blood to John, Xo. 25. Then the paternal grandmother's father, Luke Kempe, No. 2G ; then his issue of the whole blood to John, No. 27. Then his issue of the half-blood to John, No. 28. Then the paternal grandmother's paternal grandfather, Thomas Kempe, No. 29. Then his issue, No. 30, and so on in the paternal line of Luke Kempe, in infinitum. On failure of which we are to resort to his maternal line ; and the paternal grandmother's paternal grandmother, Sarah Browne, No. 31, will be the person next entitled ; and so on in the maternal line of Luke Kempe, //( infinifton. On failure of which we are to resort to the maternal line of Cecilia Kempe ; and the paternal grandmother's mother, Frances Holland, No. 32, will bo the person next entitled. Then her issue of the half- blood to John, No. 33. Then the paternal grandmother's maternal grandfather, Charles Holland, No. 34, then his issue. No. 35 ; and so on in the paternal line of Frances Holland, in infinitum. On failure of which, w^e are to resort to the maternal lino of Frances Holland ; and the paternal grandmother's maternal grandmother, Mary Wil- son, No. 36, will be the person next entitled ; and so on in the maternal line of Frances Holland, in infinitum. On failure of which, the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations, or the blood of the Bakers, Nos. 37, 38, 39, 40, 41, 42, 43, 44, 45, 40, 47 ; the Bates's, No. 48; the Willes's, Nos. 49, 50, 51, 52; the Carters, No. 53; the Thorpes, Nos. 54, 6b, 56, 57, b^, 59, 60; the Bishops, No. 61 ; the AVhites, Nos. 62, 63, 64, 65 ; and the Wards, No. (j(), in the same regular successive order as in the paternal line. 430 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. We have thus seen how land is acquired by descent in fee simple. But before we conclude the chapter, it will be proper to notice some miscellaneous points of law con- nected with title. 1. We may remark, that in order to make the title complete, where the estate descended is one in possession, the heir is required to make entry on the land ; for until then he is said to have seisin in Jaic only and not in deed ; and is incompetent to bring any action of trespass for injuries committed to the land (.r). If the estate be one in expectancy, he has of course no right of entry until the particular interest determines : but if it be a rever- sion or remainder immediately expectant on an estate for years, the possession of the particular tenant operates, upon a principle before explained, as that of the heir ; whose seisin is in that case considered as a seisin in deed, and not in law only {y). The distinction, however, be- tween these kinds of seisin, as regards tlie heir, has now lost the importance which arose from the consideration that until entry he could not become the root of a future descent ; for this is a capacity which can no longer in any case attach to him, as, by the new provision of the Inherit- ance Act, the purchaser is now the only root from which descent can be traced [z). 2. It may be useful to explain the phrase which some- times occurs in the books of hrcal-'uxj the descent. It is to be observed, then, that the estate which a man ]ias acquired by descent, retains in his hands its former quality of descending only to the blood of the same pur- chaser, or qufiHi purchaser; so that, on decease of the [x) Bac. Ab. Trespass (C). was seised," and the testator, (//) Co. Litt. 15 a ; Doe v. Keen, though he was seised in law as 7 T. R. 390 ; Doc v, Whichelo, 8 the heir of an intestate owner, had T. R. 213 ; et vide sup. p. 315. never obtained actual seisin by (?) It may be noticed that in a entry, it was held that under such recent case where the claimant a devise the property did not pass. grounded his title on a devise of (Leach v. Jay, Law Rep., 9 Ch. D. real estate, " of whicli the testator 420.) CHAP. XT. — OF TITLE BY UESCKNT. 4ol owner, none of his relations on the mother's side can ever be entitled to succeed, supposing the estate to have descended to him in the paternal line, nor vice versa any relation on the father's side, if it came in the maternal line ; except only in the case of a relation who, being- heir in one of these lines, happens to belong to the other also, — a case which may occur when the owner's parents have been connected by consanguinity. In this respect the title by descent differs remarkably from that by pur- chase ; for by the latter the estate acquires a new in- heritable quality, and is descendible to the owner's blood in general, that is, first to those of the paternal, and then to those of the maternal line. And from this it follows, that if a person who has acquired an estate by descent convey it to a new purchaser, the line of descent is hroIir)i ; and even if that purchaser convey it back again to him, the interruption still continues ; for the former owner will then hold it as by purchase, and not as by descent, and will therefore be able to transmit it to his heirs on either side. Thus, if a man seised of lands as heir on the part of his mother (and which consequently no relation on the father's side can, as such, inherit), convey them to another, and afterwards obtain a recon- veyance of them, to hold to him and his heirs, and then die without issue, his heirs on the part of his father shall inherit, and in preference to those on the mother's side {a). But a mere alteration in the quality or circum- stances of an estate will not break the descent ; and therefore if parceners make partition of their land, they are still in of their respective shares by inheritance, though those shares are no longer held in coparcenary, but in severalty. («) Co.Litt. 12b; Doe «;. Morgan, a conveyance (subsequent to 31st 7T. R. 105; 1 Prest. Est. 420, 458, December, 1833), although an es- 459. Wood V. Douglas, 28 Cli. Diy. tate should bo limited to himself 327. And in like manner the de- by the same conveyance. (Sec the scent -will now be broken -where a Inheritance Act, 3 & 4 Will. 4, person who took by descent makes c. 106, s. 3.) 433 UK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. 3. An estate in fee simple descending on the heir, comes to him charged with the debts of the ancestor from whom it descended (h). This liability has always been recognized, in respect of such of the ancestor's obligations as (in legal language) have accrued by specialty, a term which includes an obligation accruing by " matter of record " (such as a judgment or other proceeding recorded in a court of justice) as well as an obligation arising on a deed, i.e., a contract under seal ; though, unless the ancestor bound his heirs eo noDu'iie, their liability was not held to be such as could be enforced in the courts of Icnr (c). And the heir is not liable (whatever the kind of obligation of his ancestor may have been) to be charged as of his own j)roper debt ; but only so far as he has taken, in his character of heir, an estate sufficient to satisfy the debt ; which sufficient estate is called, in law, assets, from the French word assez, enough (r/). But the assets which descend to an heir may consist either of legal or of equitable estate ; and though equitable interests are not in general noticed at law, yet in this case it is otherwise : for by the Statute of Frauds (29 Car. II. c. 3), s. 10, if any cestui que trust shall die, leaving a trust in fee simple to descend to his heir, the trust shall be assets by descent, and the heir liable to be charged with the obliga- tion of his ancestor by reason of such assets, as if the Ir/jat estate had descended in possession upon him. But though the //eir was thus subject to liability for the specialty debts of his ancestor (to the extent of the estate inherited), no such liability at one time attached to a devisee, that is to say, a person taking the estate of the deceased under his will ; and therefore, to protect creditors from such devises as might tend to their prejudice, it has been provided by statute 3 William and Mary, c. 14, called " The Statute of Fraudulent Devises " ((^'), that where a (4) SccBushby v. Dixon, 3 Barn. bind the heir. & Cress. -298. {d) 2 Bl. Com. 243, 241. The (<■) See Harbert's case, 3llep. 12b; law is fully stated, 2 Sauud. by but seenow44 & 45Vict. C.41, s. 59, Wms. 7, n. (4). •whenrby all specialty debts now ('■) Tliis Act was repealed, but CHAP. XI. UF TITLE 1!Y DESCENT. 433 deceased person shall have devised any real estate, without making it subject to the payment of his debts, his devisee shall be liable to be charged in respect of the real estate so devised, in the same manner as, and jointly with, the heir: and a creditor, bringing an action for that purpose, shall be entitled either to make the devisee a joint defendant with the heir, or to sue the devisee alone, where there is no heir liable (,/') . Still, however, no remedy existed against the real estate of a deceased person (whether in the hands of an heir or devisee), to creditors claiming upon sinqjle contract (i. e., not under deed), or claiming under deeds in which the heirs were not expressly bound. There have been few defects perhaps in the English jurisprudence more cal- culated to excite surprise than this, or more at variance with the natural sense of justice. And it is satisfactory, therefore, to be able to add that it exists no longer ; for, though it was not thought convenient to alter the prin- ciple of the common law in this particular, the claims of creditors of every class have been effectually secured through the medium of proceedings in equity. Yet the redress came late, and by a slow and cautious advance. For at first it was confined to the case where the deceased was a person carrying on trade within the meaning of the bankrupt laws ; it being provided by 47 Geo. III. sess. 2, c. 74, and afterwards by 1 1 Geo. IV. & 1 Will. IV. c. 47, that, in a case of that description, the creditors by simple contract should be entitled by proceedings in equity, in such manner as therein mentioned, to enforce payment out of the real estate descending on his heir, or devised by his with a re-enactment of the provi- (/) As to these enactments, see sion in the text, by 11 Geo. 4 & 1 Farley v. Briant, 3 Ad. & Ell. 839 ; Will. 4, c. 47 — itself explained and Hunting v. Sheldrake, 9 Mee. & "W. amended, in some respects, by 2 & 256; Coope i'. Cresswell, Law Rep., 3 Vict. c. 60, and 11 & 12 Vict. 2 Eq. Ca. 106; 2 Ch. App. 112; c. 87. also. Order XTi. rule 45 (1883). VOL. I. F F 434 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. will, — and not made subject to tlie payment of his debts. Subsequently, by 3 & 4 Will. IV. c. 104, it was enacted more extensively — that when amj person should die en- titled to any real estate, not by his will made subject to his debts, such estate should be considered as assets to be administered in equity, for payment of his debts as well on simple contract as on specialty. Under this Act, how- ever, a priority was secured to those who in their lifetime had placed their claims upon a basis of stronger obligation, for it was further provided, that, in the equitable adminis- tration of assets, all creditors by specialty in which the heirs were bound co nomine^ should be paid in full before any creditors by simple contract, or claiming on specialties in which the heirs were not so bound. But by 32 & 33 Yict. c. 46, it has been since enacted that, in the ad- ministration of the estate of any person who shall die on or after 1st January, 1870, no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by an instrument under seal, or is otherwise made a specialty debt ; but that all his creditors, as well specialty as simple contract, shall be treated as standing in equal degree, and be paid accordingly out of his assets, whether they be legal or equitable. There is, however, a proviso that this enact- ment shall not prejudice any lien, charge or other security which any creditor may hold for his debt {g) . However, now, by the Judicature Act, 1875 (/?), s. 10, it has been provided that as from the 2nd November, 1875, in the administration of the estates of deceased insolvents, the [g) This Act is commonly known of a testator who, having charged as " Hinde Palmer's Act." As to his real estate with the payment of its construction, see WiUiams v. specific sums of money, has devised ■Williams, Law Eep., 15 Eq. Ca. the estate so charged to trustees, 270 ; Sliirriff v. Hasting-s, ib. 6 without making express provision Ch. D. 610. It may be noticed for the mode in which such money that in 22 & 23 Vict. c. 35, will be is to bo raised out of the estate, found provisions to meet the case (//) 38 & 39 Vict. c. 77. CTIAP. XT. — OF TITLE RY DESCENT. 435 like rules shall prevail as in bankruptcy, as regards the mode of proof by secured and unsecm-ed creditors, and as to the classes of debts and kinds of liability that are provable, and as to the valuation of annuities and con- tingent liabilities (/). Also, where an estate is insolvent, the administration thereof after death may be wholly in bankruptcy, or the administration thereof in the Chancery Division may (for good cause) be transferred into the Bankruptcy Division of the High Coui't {k). (i) See Smith v. Morgan, 5 C. P. Bridges, 17 Ch. D. 342; Green v. D. 337; Withemsca Brickworks Smith, 22 Ch. Div. 584; Mersey Co., 16 Ch. D. 337 ; la re Associa- Steel Co. v. Naylor, 9 App. Ca. tion of Land Financiers, 16 Ch. D. 434. 373; In re Maggi, Winehouse v. (k) 46 & 47 Vict. c. 52, s. 125; Winehouso, 20 Ch. D. 545 ; Hill v. Higgs v. Weaver, 29 Ch. Div. 236. F f2 436 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. CHAPTER XII. OF TITLE BY ESCHEAT. Escheat, we may remember, was one of the fruits and consequences of feudal tenure (a). The word itself is originally French or Norman, in which language it sig- nifies chance or accident ; but with us it is applied to the case where the owner of an estate in fee simple dies without having disposed of it, and leaves no heir behind him to take it by descent ; so that it results back, by a kind of reversion, to the original grantor or lord of the fee (h). And here it is to be observed, that the land so escheating afterwards follows the seigniory, as being a fruit thereof. Therefore, if the lord was entitled to the seigniory by purchase, the land escheated will descend to his heirs general ; if by descent, it will be inheritable only by such of his heirs as are capable of inheriting the seigniory (r) . In order to complete this title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated ; and on failure herein, or in doing any act that amounts to an implied waiver of his right, as by accepting rent of a stranger who usurps the possession, his title by escheat is barred (r/) . It is therefore in some respect a title acquired by his own act, as well as by act of law. Indeed, this may also be (rt) 2 Bl. Com. 244. Vide sup. {c) Co. Litt. ubi .sup. pp. 184, 210. [d) Bl. Com. ubi sup. ; Bro. Ab. {l>) 11 Feu'l. 86 ; Co. Litt. 13 a. tit. Acneptancc, 2-5 ; Co. Litt. 2C8. CHAP. XII. — OF TITLE 15Y ESCHEAT. 437 said of descents themselves, in -wliieli an entry or other seisin is required, in order to make a complete title ; but as both descent and escheat vest an inchoate title at least in the party, without the active interference of any person whatever, they are both properly referable to the same head, of title by " act of law " {e). The laAV of escheat is founded upon this single principle, that the inheritance of land held in fee simple having failed, it must become what the feudal writers denomi- nate /('2f.^«;» aperfum, and must result back again to the lord of the fee, by whom (or by those whose estate he hath) it was given (/). Escheats have been frequently divided into those j^roj^fer dofcdum scnujuinls, and those propter delictum tencntis ; the one sort, if the tenant should die without an heir, the other, if his blood be attainted [g) ; and we propose successively to advert to both sorts, beginning with — I. Escheats propter defectum satujuinis. By the law, as it stood till recently, an escheat of this sort took place. First, where the owner in fee simple of land, of which he had been himself the purchaser, died without disposing of the same, and leaving none related to him by consan- guinity, or none who was not subject to some disability such as prevented his becoming heir to any person what- ever (//). Secondly, where the owner in fee simple of land which he had derived by descent from some person as purchaser, (or which was descendible as if one of the owner's ancestors had been the purchaser,) died without disposing of the same, and leaving none related by consanguinity to such purchaser or ancestor, or none not subject to such disability as just mentioned (/"). [e] Vide sup. p. 386. {h) As to the term "purchaser " (/) 2 Bl. Com. 24.5. in connection with the acquirement [g) Co. Litt. 13 a, 92 b. of land, \-ide sup. pp. 386, 391. ((') Vide sup. p. 393. 488 BK. II. OF IIIGHTS OF PROPERTY. — PT. I. THINGS REAL. But it has latterly been considered as a hardship that, in the second case, the land should thus go over hy escheat to a stranger, if the last owner died leaving a person related to him by consanguinity, and able to take land as heir — a j)0ssible event — because he may have left a person falling under that description, though not a relation on the side of him from whom the land had descended, or was descendible (/). It has now therefore been provided by 22 & 23 Vict. c. 35, s. 19 (as stated in the last chapter), that where there shall be a total failure of heirs of the piu'chaser, or where any land shall be descendible as if an ancestor had been the purchaser thereof, and there shall be a total failure of the heirs of such ancestor, then, and in every such case, the land shall descend, and the descent shall thenceforth be traced from the person last entitled to the land, as if he had been the purchaser thereof {h) . The law having been thus altered, an escheat now takes place only in the folloAving cases, — First, w^here the person last entitled to land in fee simple dies without having dis- posed of the same, and leaving none related by consan- guinity either to the person (if any) from whom as pur- chaser, (or as quasi purchaser,) he derived by descent, — or to himself. Secondly, where he dies without having disposed of the land, and leaving none so related who is not at the same time subject to a personal disability to take as heir. The first of these cases requires no further remark. As to the second, the persons who are under such disability may be classed as follows : — 1. [A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage ; but, although it hath deformity in any part of its body, {J ) As in Doe d. Blackburn v. {k) This provision is, by sect. Blackburn, 1 Moody & Eobinson, 20, incorporated with the " In- p. 547. heritance Act," as to which vide sup. pp. 301, 425. CHAP. XII. — OF TITLE BY ESCHEAT. 439 [yet if it hatli human shape, it may be heir. This is a very antient rule iu the law of England, and its reason is too obvious and too shocking to bear a minute discus- sion (/). And if there appears no other heir than such a prodigious birth, the land shall escheat to the lord. 2. Bastards are incapable of being heirs. Bastards, by our law, are such children as are not born of lawful wed- lock (wi). Such are held to be nullius fillip the sons of nobody ; for the maxim of the law is, " Qui ex damnato coitu nasctmtur, infer liberos non computantiir^' (»). Being thus the sons of nobody, they have no blood in them, at least no inheritable blood ; consequently none of the blood of the first purchaser ; and therefore, if there be no other claimant than such illegitimate children, the land shall escheat to the lord (o). The civil law differs from ours in this point, and allows a bastard by birth to succeed to an inheritance, if legitimated after it was born by the lawful marriage of its father and mother [p) : and also if the father had no lawful wife or child, then, even if the concubine was never married to the father, yet she and her bastard son were admitted each to one-twelfth of the inheritance (q) ; and a bastard was likewise capable of succeeding to the whole of his mother's estate, although she was never married ; the mother being sufficiently cer- tain, though the father is not (;•) . But our law, in favour of marriage, is much less indulgent to bastards. There is indeed one instance in which our law has shown them some little regard ; and that is usually termed the case of bastard eigne and muUer jmisnc. This happens wlien a man has a bastard son, and afterwards marries the mother, and by her has a legitimate son, who in the (/) See Co. Litt. 7 b; Bract. 1. 1, 217. See further as to bastardy, c. 6, 8. 7, and 1. 5, tr. 5, c. 30, s. 10. post, bk. iii. c. m. (»?) "Bastards by our law are («) Co. Litt. 8a; Bract, ubi sup, " sucb children as arc not born (o) Finch, Law, 117. "either in lawful wedlock or [p) Nov. 89, c. 8. "within a competent time after [q) lb. c. 112. "its determiDution." — 2 Bl. Com. (r) Cod. 6, o7, 5, 440 BK. II, OF RIGHTS OF PROPERTY.— PT. I. THINGS REAL. [language of the law is called a muUcr, or, as Grlanvil expresses it in his Latin, filius muUeratus {s) ; the woman before marriage being concuhina, and afterwards uuilier. Now here the eldest son is bastard, or bastard eigne : and the younger son is legitimate, or mulier puisne. If then the father dies, and the bastard eigne enters upon his land, and enjoys it to his death, and dies seised thereof, whereby the inheritance descends to his issue ; in this case the mulier puisne and all other heirs (though minors, married women, or under any incapacity whatsoever) are totally barred of their right (/). And this, 1. As a punishment on the mulier for his negligence, in not entering during the bastard's life and evicting him. 2. Because the canon law (following the civil) did allow such bastard eigne to be legitimate, on the subsequent marriage of his mother : and therefore the laws of England (though they would not admit either the civil or canon law to rule the in- heritances of this kingdom, yet) paid such a regard to a person thus peculiarly circumstanced, that, after the land had descended to his issue, they would not unravel the matter again, and suffer his estate to be shaken. But this indulgence was shown to no other kind of bastard ; for if the mother was never married to the father, sucli bastard could have no colourable title at all [u). As bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For all collateral kindred consists in being derived from the (a) L. 7, c. 1. "heir, and died seised, and so [t) Litt. B. 399. The rule also "passed for legitimate in his life- applies if a man has two daughters, " time." And the same reason is the elder a bastard, and they both given in Co. Litt. 244 a. But enter peaceably as co-parceners ; the correctness of this view is Co. Litt. 244 a. questionable, at least in the tem- (?<) Litt. 8. 400. Blackstone (vol. poral courts ; see Co. Litt. by ii. p. 248) here gives as an addi- Butler, 244 b, n. (1) ; Glenister v. tional reason for the rule as to Harding, 29 Ch. Div. 985 ; Re bastard eiffne, that "the law will Perton, Pearson v. Att.-Gcn., W. " not suffer a man to be bastardized N. 1885, p. 164. "after his death, who entered as CHAP. XII.— OF TITLE BY ESCHEAT. 441 [same common ancestor, and as a bastard has no legal ancestors, lie can have no collateral kindred; and conse- quently can have no legal heirs, but such as claim by a lineal descent from himself. And therefore if a bastard purchase land, and die seised thereof without issue, and intestate, the land shall escheat to the lord of the fee (.r).] But though the descent from a bastard is necessarily con- fined to his issue, yet he is capable of holding land in fee simple, in such sense at least that he may make an un- limited alienation of it (either by conveyance inter vivos or by way of devise), and that the alienee will take an estate to his heirs general (y) . 3. As the law stood until a recent period aliens also, amongst other incapacities, were incapable of taking by descent ; for they were not allowed to have any inheritable blood in them ; rather indeed upon a principle of national or civil policy, than upon reasons strictly feudal (;:). And therefore, if a man left no other relations but aliens, his land escheated to the lord. As aliens could not inherit, so far they were on a level with bastards ; but as they were also disabled to hold real estate hy piirc/iaso, they were under still greater dis- abilities {a) . And as they could neither hold by purchase, nor by inheritance, so they could have no heirs, since they could have nothing for an heir to inherit (h). Moreover, at one time, aliens could not be the channels of descent, for we are told by Sir Edward Coke, that if an alien cometh into England, and there hath issue two sons, who are thereby natural-born subjects, and one of them pm-chases land and dies ; yet neither of these brethren can be heir to the other (r). For (continues he) the cojnmuno ■rinculuni, or conmion stock of their consanguinity, is the father : and as he had no inheritable blood in him, he can (.r) Bract. 1. 2, c. 7 ; Co. Litt. [a) Co. Litt. 2 b. 241. {b) lb.; 1 Lev. 59. (y) 1 Prest. Est. 468. (c) Co. Litt. 3 a. (c) 2 Bl. Com. 249 ; Co. Litt. 8 a. 442 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. communicate none to his sons ; and, when the sons can by no possibility be heirs to the father, the one of them shall not be heir to the other. And though this opinion of his was afterwards overruled id), it was only on the ground that the descent from one brother to the other might be considered as immediate, and without regard to the com- mune vinculum [e). [The subject, however, of tracing descent through an alien, subsequently to the time of Lord Coke, became regulated by act of parliament. For it was enacted by the statute 11 Will. III. c. 6 (/), that all persons, natural- born subjects of the king, might inherit and make their title by descent from any of their ancestors, (lineal or col- lateral,) although their father or mother, or other ancestor, by, from, through, or under whom they derived their pedigrees, were born out of the king's allegiance.] And such is still the law as to tracing descent in regard to any estate which accrued before the 12th May, 1870, — the day on which passed the " Natui-alization Act" of that year (33 & 34 Vict. c. 14). But by the second section of that statute it was provided, with regard to all titles accruing after that date, that real and personal property of every description may be taken, acquired, held and disposed of by an alien, in the same manner in all respects as by a natural-born British subject ; and that a title thereto may be derived through, from, or in succession to an alien as if he had been such a subject {g). Such is the state of the law with respect to escheats 'propter defectum sanguinis; as to which we shall only further observe, that by the Trustee Act, 1850 (13 & 14 {d) Collingwood V. Pace, 1 Vent. [g) 33 & 34 Vict. c. U, s. 2. But 415; 1 Lev. 59 ; 1 Sid. 193. See the Act confers no right ou an alien Kynnaird v. Leslie, Law Kcp., 1 to hold real property out of the C. P. 389. United Kingdom ; nor to hold any (c) Ab to this, vide sup. p. 418. municipal, parliamentary or other (/) See also 25 Geo. 2, c. 39, office or franchise (ibid.), or to be explanatory of this statute, as to the owner of a British ship (s. 14). ■which see Co . Litt . by Harg . 8a, (n . ) . CHAP. XII. — OF TITLE I5Y ESCHEAT. 443 Vict. c. 60), another case is withdrawn from the operation of escheat, — viz., where the land was held Ly the party deceased, under a trust or mortgage, — it being provided by this statute (as it had been in substance by earlier enact- ments), for the protection of the party beneficially in- terested, that where a trustee or mortgagee dies intestate without an heir (or his heir or devisee is not known), the Court shall have power to make an order vesting the lands in such person and in such manner as the Court shall direct {h). II. We now arrive at the consideration of escheats projjter delictum tcnentis ; which was, where, by attainder, the blood of the person attainted became, in the eye of the law, so corrupted as to be no longer inheritable. Attainder imports that extinction of civil rights and capacities which took place whenever a person who had committed treason or other felony received judgment of death or outlawry for his crime (/) ; and (besides other consequences) at one period of our law it involved in certain cases the corruption of blood, so as to prevent the descent of land (which depends, as we have seen, on blood or consanguinity) to the offender or his heirs. The old law with respect to corruption of blood upon attainder, and the consequent escheat of the offender's lands and tenements to the lord of the fee, has been so much altered by the modern enactments to which we shall presently refer, as to have lost much of its former import- ance. As explanatory however of these, and as throwing light on the researches of the student, its doctrines con- tinue to deserve our attention ; and we shall here proceed to examine them (/«•), According to the antient law, by the commission of treason, or other felony, the blood of the tenant was cor- (/() 13 & 14 Vict. c. 60, ss. 14, 19; (() See further as to attainder, and see 44 & 4.5 Vict. c. 41, ss. 31 post, bk. vi. c. xxiii. —34. (-t) See 2 Bl. Cora. 252—2-56. 444 j;k. II. OF rights of property. — pt. i. things real. rupted and stained, and the original donation of tlie feud was thereby determined, it being always granted to the vassal on the implied condition of dum bene se gesserit ; upon the thorough demonstration of which guilt by legal attainder, the feudal covenant and mutual bond of fealty were held to be broken, the estate instantly fell back from the offender to the lord of the fee, and the inheritable quality of his blood was extinguished and blotted out for ever. This escheat to the lord by reason of his tenant's at- tainder, must be carefully distinguished from forfeiture to the crouii ; consequences which by reason of their similitude in some points, and because the crown being very frequently the immediate lord of the fee, was there- fore entitled to both, have been often confounded together. For, independently of any escheat, the felon's lands and tenements (to the extent of his interest therein) were, by force of the attainder, immediately forfeited to the crown (/). Escheat to the lord, therefore, operated in subordina- tion to forfeiture to the crown ; indeed, the law of for- feiture was (in the case of treason at least) of older date in this country than that of escheat ; for the former doc- trine prevailed in the old Saxon times (;;?), while the latter appears to have been the result of the introduction of the Norman tenures (;?), Hitherto we have only spoken of estates vested in the offender, at the time of his attainder. And here the law of forfeiture stopped ; but the law of escheat pursued the matter still further. For the blood of the tenant being, on his attainder, utterly corrupted and extinguished, it followed, not only that all that he then had should escheat from him, but also that he should be incapable of in- heriting anything for the future : and this may further illustrate the distinction between forfeiture and escheat. (/) 1 Inst. 64 ; 1 Salk. 85. LI. Alfred, c. 4 ; LI. Canut. 54. \m) Wilkins' Leges Anglo-Sax. («) 2 Bl. Com. 252. CHAP. XII. — OF TITLE BY ESCHEAT. 445 If, therefore, a father was seised in fee, and the son com- mitted treason and was attainted, and then the father died, here the land would escheat to the lord ; because the son, by the corruption of his blood, was incapable to be heir, and there could be no other heir dui-ing his life ; but nothing would be forfeited to the king, for the son never had any interest in the lands to forfeit (o) . In this case the escheat operated, and not the forfeiture ; but in the following instance the forfeiture worked and not the escheat. As where a new felony was created by act of parliament, and it w'as provided (as was frequently the case) that it should not extend to corruption of blood ; here the lands of the felon would not escheat to the lord, but yet the profits of them would be forfeited to the king for a year and a day and so long after as the offender lived Qj). There was yet a further consequence of the corruption and extinction of hereditary blood, which was this, that the person attainted would not only be incapable himself of inheriting, or transmitting his own property by heirship, but would also obstruct the descent of lands or tenements to his posterity, in all cases where they were obliged to derive their title through him from any remoter ancestor. The channel which conveyed the hereditary blood from his ancestors to him, was not only exhausted for the present, but totally dammed up and rendered impervious for the future. This was a refinement upon the antient law of feuds ; w'hich allowed that the grandson might be heir to his grandfather, though the son in the intermediate gene- ration was guilty of felony («/). But, by the law of Eng- land, a man's blood was so universally corrupted by attainder, that his sons could neither inherit to him nor to any other ancestors, at least on the part of their attainted father {>•). This corruption of blood could not be absolutely removed but by authority of parliament. The king might excuse (o) Co. Litt. 13 a. {q) Van Leeuveu, iu 2 Feud. 31. {p) 3 Inst. 47. {>■) Co. Litt. 391 h. 446 BK. II. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. the public pimishment of an offender ; but could not abolish the private right, which had accrued, or might accrue, to individuals as a consequence of the criminal's attainder. He might remit a forfeiture, in which the interest of the crown is alone concerned ; but he could not wipe away the corruption of blood ; for therein a third person had an in- terest, namely, the lord who claimed by escheat. If, there- fore, a man had a son, and was attainted, and afterwards pardoned by the king, this son could never inherit to his father, or his father's ancestors ; because his paternal blood, being once thoroughly corrupted by his father's attainder, must continue so ; but if the son had been born after the pardon, he might inherit ; because by the pardon the father was made a new man, and might convey new inheritable blood to his after-born children (s). Upon the whole it appears, that a person attainted was neither allowed to retain his former estate, nor to inherit any future one ; nor could he transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor ; for liis in- heritable blood, which is necessary either to hold, to take, or to transmit any feudal property, was blotted out, cor- rupted, and extinguished for ever; and the consequence was that estates, thus impeded in their descent, resulted back and escheated to the lord. But the doctrine of corruption of blood on attainder, arising as it did from feudal principles, and perhaps ex- tending further than even those principles would warrant, gradually came to be regarded as a peculiar hardship, at least as regarded the family of the offender. And therefore in most (if not all) of the new felonies from time to time created by parliament since the reign of Henry tlie eighth, it was declared that they should not extend to any corruption of blood (t). And in our own (6-) Co. Litfc. 392 a. Pretender and his sons, no attainder {i) By 7 Anne, c. 21, it was en- for treason should operate to the acted that after the death of the prejudioe of other than the offender CHAP. XII. — OF TITLE BY ESCHEAT. 447 times tlie spirit of those enactments became infused into the general law of the realm ; and whatever savoured of inhumanity or harshness under the antient system was effectually (though by degrees) removed. For by 54 Greo. III. c. 145, it was provided that no attainder for felony, except for treason or murder, should extend to the disinheriting of, nor to the prejudice of, any person other than the offender himself during his life. Again, by the Inheritance Act, (3 & 4 Will. IV. c. 106,) that when the person, from whom descent is to be traced, should have had any relation who having been attainted had died before such descent, such attainder should not prevent the descent from being traced through such rela- tion, imless the estate had escheated on such attainder before 1st January, 1834 (»). Moreover, by the Trustee Act, 1850 (13 & 14 Yict. c. 60), it has been enacted that no lands, stock, or chose in action, vested in any person upon any trust, or by way of mortgage, should escheat by reason of the attainder or conviction of the trustee or mortgagee for any offence. And the doctrine of escheat propter de- tictum tenentis, gradually reduced in importance by these several enactments, seems now to have been altogether set aside ; it having been provided by the 33 & 34 Yict. c. 23, s. 1, reciting it to be " expedient to abolish the forfeiture of lands and goods for treason and felony," that after the passing of that Act no confession, verdict, inquest, convic- tion, or judgment for any treason or felony or felo dc se shall cause any attainder or corruption of blood or any forfeiture or escheat (^■) . In conclusion of the chapter we may remark, that where himself ; but this provision (the Vict. c. 23, s. 1) ; and inasmuch operation of which was postponed as, by the statute 42 & 43 Vict, by 17 Geo. 2, c. 39) was repealed c. 59, outlawry in all cir (7 proceed - by 39 Geo. 3, c. 93. ings has been abolished, the ex- (u) 3 & 4 Will. 4, c. lOG, s. 10. ccption of outlawry contained in (x) The Act, however, preserves the statute 33 & 34 Vict. c. 23, in statu quo the law of forfeiture can only refer now to criminal pro - consequent on outl'iwri/ (33 & 34 ceedings. 448 BK, TI. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. (under tlie former law) an esclieat or forfeiture of lands actually took place, its consequences were frequently re- mitted, when the crown was the party entitled to take the benefit. For, in such event, the sovereign, by modern acts of parliament, was frequently empowered to make grants for the purpose of restoring the land to the family of the former owner ; or to carry into effect any grant, conveyance, or devise of the same that such owner might have intended to make (i/). {y) See, for example, 39 & 40 6 Geo. 4, c. 17 ; and see the In- Geo. 3, c. 88, s. 12; 47 Geo. 3, testates Estates Act, 1884 (47 & 48 sess, 2, c. 24 ; 59 Geo. 3, c. 94 ; Vict. c. 71), s. 6. ( 449 ) CHArTER XIII. OF TITLE BY OCCUPANCY, [Occupancy is the taking possession of those things which theretofore belonged to nobody. This, as we have seen, is the true ground and foundation of all property ; that is, of holding those things in severalty, which by the law of nature, unc[ualifiod by that of society, were common to all mankind (r/). But when once it was agreed that every- thing capable of o^\^lership should have an owner, natm-al reason suggested, that he who could first declare his in- tention of appropriating anything to his own use, and in consequence of such intention actually took it into pos- session, should thereby gain the absolute property of it ; according to the doctrine recognized by the laws of Eome, quod nullius est, id ratione natural! occupanti conceditur (b). This right of occupancy, so far as it concerns real pro- perty (for of personal chattels we do not in this place speak), hath been confined by the laws of England within a very nan-ow compass and never extended beyond a single instance ; namely, where a man was tenant pi/ method of conveyance inter vivos (/.•). In order to remedy the inconvenience attaching to the previous law with regard to the occupancy of estates pur autre vie, during the interval between the death of the owner and that of the cestui que vie, careful provisions have been made by the legislature in modern times. For by the Statute of Frauds, (29 Car. II. c. 3,) s. 12, and by 14 Geo. II. c. 20, s. 9, an estate ^j«r>' autre vie was rendered devisable by will, and (in default of such disposi- tion) was made liable, in the hands of the heir as special occupant, or of the personal representatives, as the case might be, to the debts of the deceased owner ; and subject thereto, to distribution among the next of kin(/). And (A) See Holden v. Smallbroke, v. Liixton, ubi sup. ; Campbell v, Vaughan, 201 ; Doe v. Martin, 2 Sauds, 1 Sch. & Lef. 291; Dillon r. W. Bl. 1150; Doe 'd. Blake v. Dillon, 2 Ball & B. 77; Hopkins Luxton, 6 T. R. 291 ; Bearpark v. v. Ramadge, 1 Batty, 365. Hutchinson, 7 Bing. 188. (l) See Doe d. Jeff v. Robinson, (0 Co. Litt. byHarg. 20 a, n. (o). 8 Bam. & Cress. 296; Doe d. {k) See 3 P. Wms. 265, n. (oth Lewis v. Lewis, 9 Mee. & W. GG2 ; ed.); Norton i'.Frecker, 1 Atk. 524; see also Co. Litt. by Harg. 41 b, Grey r. Mannock, 2 Eden, 339 ; Doe n. (s). o f; 2 452 BK. II. OF RIGHTS OF PROPERTY. — PT, I. THlNfJS REAL. tliougli tliese provisions were repealed by tlie new Wills Act (7 Will. ly. & 1 Vict. c. 26), fresli enactments were made in that statute, in terms somewliat more extensive, to the following effect (;;?) ; — that an estate pur autre vie, of what- ever tenure, and whether it be a corporeal or incorporeal hereditament, may be devised by last will and testament {n) : that if no disposition by will be made of an estate ^my autre vie of a freehold nature, it shall be chargeable in the hands of the heir (if it comes to him by reason of special occupanc}^) as assets by descent, as in the case of freehold land in fee simple (o) : that in case there shall be no special occupant of an estate /»in' autre vie, of whatever tenure, and whether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant : and that, in every case where it comes to the hands of such personal representative, whether by special occupancy or in virtue of that Act, it shall be assets in his hands, to be applied and distributed in the same manner as personal estate (;;). It is only in an estate pur autre vie (as already re- marked), that our law affords any example of the acqui- sition of land by occupancy. It is difficult at least to put any other instance wherein there is not some owner of the land appointed by the law (. 2G1. CIlAr. XITI. — OF TITLE BY OCCUPANCY. 453 [all other instances, when the tenant dies intestate, and no other owner of the lands is to be found in the common course of descent, tliere the law vests an ownership in the crown, or in the subordinate lord of the fee, by escheat.] So also, where the laws of other nations give a right by occupancy, as in lands newly created by the rising of an island in the sea or in a river, or by the alluvion or dere- liction of the waters ; in these instances the law of England assigns them an immediate owner (;•). Thus, in case a new island rise in the sea, though the civil law gives it to the first occupant (.s), yet ours gives it to the sovereign (/). And as to lands gained from the sea, either by al/ia-ioi/, that is, the washing up of sand and earth, so as in time to make fo-i'a Jir)na ; or by dereJiction, as when the sea shrinks back below the usual water-mark ; in these cases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land immediately behind, for dc mini mis non curat Ice. But if the alluvion or dereliction be sudden and considerable, in this case it belongs de jure couimuni to the crown ; for the soil, when the sea flowed over it, was jrriiiid facie the crown's property {u), and therefore ought to remain so, though no longer covered by the sea (,r). And upon the same principle, a sudden inundation from (r) 2 Bl. Com. p. 2GI. Callis, pp. 51, 53 ; and see Eex v. [s) Inst. 2, 1, 22. Lord Harborough, 3 Barn. & Cress. (/) Hale, de Jure 3[aris, p. 17; 91; oBiug. 1G3; Scrattont'. Brown, Callis, of Sewers, p. Ao. The trea- 4 Barn. & Cress. 505. It is to be tise, de Jure Maris, was published observed, however, that in Hale, by Mr. Hargrave, and has been ubi sup. (pp. 12, 17), it is laid down generally received as a work of Lord that the king may grant a manor Hale ; but doubt is thrown on this cum littore maris to a subject, and point in a learned argument of Mr. that the shore (that is, the space Serjeant Mere wether, in Attorney- between the oi'dinary high and low- General v. Mayor, kc. of Loudon, water mark) will pass thereby ; and before the Court of Chancery. it would seem, that after such a («) Ilale, ubi sup. p. 14 ; see grant, a sudden increase of land Blundelli'.Catterall, 5B.&Ald. 2C8. by alluvion or dereliction, within [x) 2 Bl. Com. 262 ; Hale, ubi these limits, would belong to the sup. ; 2 Roll. Abr. 170 ; Dyer, 326 ; gr.intee. 454 UK. 11. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. the sea will not deprive the former owner of the land sub- merged of his previous property therein (//) ; though, on the other hand, it has been decided, that where the sea gains upon the land by gradual advance, (the crown being the owner between high and low water-mark,) the crown becomes also the owner of the land newly covered with water (::). [It is said, too, by Bracton, that if an island rise in the middle of a rivery it belongs to those who have lands on each side thereof, in common ; but if -it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore (a). Yet this seems only to be reasonable where the soil of the river is equally divided between the owners of the opposite shores ; for if the whole soil is the freehold of any one man, — as it usually is when- ever a several fishery is claimed (i^), — there it seems just (and so is the constant practice) that the eyots or little islands, arising in any part of the river, shall be the pro- 'pertj of him who owneth the piscary and the soil. It is further laid down in our books, that if a river running between two lordships, by degrees gains upon the one, and thereby leaves the other dry ; the owner who loses his ground thus imperceptibly has no remedy ; but if the course of the river be changed by a sudden and violent flood, or other hasty means, his land will not be lost (c). And this law of alluvions and derelictions, Avith regard to rivers, is nearly the same in the imperial law, from whence indeed those om* determinations seem to have been drawn and adopted ; but we ourselves, as islanders, have applied them to marine increases (f/).] {>/) Hale, de Jure, &c.,pp. ly, 17. if) Callis, p 51. In Blackstone {z) In re Hull and Selby Rail- (vol. ii. p. 262) the statement on way, 5 Mee. & "W. 327. tliis subject is, that he " shall have («) Bract, lib. 2, c. 2. "what the i-iver has left in any (J) Smith V. Kemp, Salk. 637; "other place;" but this seems not and see Mayor of Carlisle v. Gra- to be supported by the authorities. ham, L. R., 4 Exch. 361 ; Foster {d) 2 lust. 1, 20, 21, 22, 23, 24. V. Wright, 4 C. P. D. 438. ( 455 ) CHAPTER XIV. OF TITLE HY FORFEITURE. Forfeiture is a pimisliment annexed by law to some illegal act, or negligence, in the owner of lands, tenements, or hereditaments, wliereby he loses all his interest therein, and they go to the party injured as a recompense for the wrong which either he alone, or the public together with himself, hath sustained (a). Lands may be forfeited by various means; some of which it will not be convenient to discuss in this place, as they are incidental only to subjects of a more general descrip- tion, belonging to other divisions of the work (b). But there are three kinds of forfeiture which require a dis- tinct and separate consideration, and to which the present chapter will consequently be devoted. The first of them accrues by alienation in mortmain ; the second, by the wrongful alienation of particular tenants ; the third, by wrongful disclaimer. 1. [Alienation in morfuiafii, in »iorf/ul manu, is an alienation of lands or tenements to any corporation, — sole or aggregate, ecclesiastical or temporal (r). But these pur- chases ha\dng been chiefly made b}^ religious houses, in consequence whereof the lands became perpetually inherent in one " dead hand," this hath occasioned the general appellation of mortmain to be applied to such alienations ; and the religious houses themselves to be principally (a) 2 Bl. Com. p. 267. c. xxin. {b) As to forfeiture of lands bij (c) Co. Litt. 2 b. As to corpo- ft^^ffeHf/er iiiider the law as it existed rations, vide sup. pp. 362, 375; iniov to the passing- of the 33 & post, bk. iv. pt. nr, 34 Vict. c. 23, vide post, bk. vi. 456 BK. II. or RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [considered in forming tlie statutes of mortmain. And in deducing the history of these statutes, it will be matter of curiosity to observe the great address and subtle contrivance of the ecclesiastics in eluding from time to time the laws in being, and the zeal with which successive parliaments pursued them through all their finesses ; how new reme- dies were still the parents of new evasions ; till the legis- lature at last, though with difficulty, obtained a decisive victory.] By the common law, a corporation is as capable of pur- chasing lands as an individual {d) ; — subject to this dis- tinction, that persons corporate take the fee to hold to their successors, instead of their heirs. Yet it has always been necessary for corporations to have a licence in mort- main from the crown, to enable them to become the holders of lands {e) ; for as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheats and other feudal profits, by the vesting of lands in tenants who can never die. [And such licences of mortmain seem to have been necessary among the Saxons, above sixty years before the Norman conquest (/). But besides this general licence from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain his licence also (upon the same feudal principles), for the alienation of the specific land. And if no such licence was obtained, the king or other lord might respectively enter on the lands so aliened in mortmain, as for a forfeiture.] Yet such were the influence and ingenuity of the clergy, that, notwith- standing this fundamental principle, we find that the {d) Case of Sutton's Hospital, writer of great authority, whether 10 Rep. 30 ; Co. Litt. 2 b. before Magna Charta, any restraint (e) F. N. B. 221. was put by the common law upon (/) Solden, Jan. Angl. 1. 2, s. 45. alienations in mortmain ; see Hal- It should be observed, however, lam's Middle Ages, vol. ii. p. 321, that a doubt is expressed by a 7th edit. CHAP. XIV. — OF TITLE BY FORFEITURE. 457 largest and most considerable dotations of religious houses without licence, happened within less than two centuries after the Conquest. [But when these began to grow numerous it was observed that the feudal services, or- dained for the defence of the kingdom, were every day visibly withdrawn ; and that the lords were curtailed of the fruits of their seigniories, — their escheats, wardships, reliefs, and the like. And therefore, in order to prevent this {(/), it was ordered by the second of king Henry the tliird's great charters (//), and afterwards by that printed in our common statute books, that all such gifts should be void, and the land forfeited to the lord of the fee (/). But as this prohibition extended only to religious Itouses, bishops and other sole corporations were not included therein ; and the aggregate ecclesiastical bodies — who, Sir Edward Coke observes (y), in this were to be com- mended, that they ever had of their council the best learned men that they could get — found many means to creep out of this statute, by buying in lands that were holden of themselves as lords of the fee, and thereby evading the forfeiture ; or by taking long leases for years, which first introduced those extensive terms, for a thousand or more years, which became so frequent in conveyances. This produced the statute De religmis, (ff) Blackstone (vol. ii. p. 269) in mortmain naturally tended to enumerates, as another of the mis- restrain alienation, this does not chiefs, the prev^ention of which was ajjpear to have formed one of the designed, " that the circulation of reasons on which the policy of the " landed property from man to man law of mortmain was originally "began to stagnate." Lord Coke, founded. however, in 2 Inst. 7'T, lays it down {h) a.d. 1217, c. 43, edit. Oxon. (in conformity with the language (i) Mag. Chart. (25 Edw. 1). It of the statiite Dc reUgiosis), that is laid do ^\^l by Lord Coke that the the causes of the law were two, prohibition extended as well to the viz., that the services for defence case where the religious house kept of the realm were withdrawn, and the land so conveyed, as where they that the lords lost their escheats gave it back to hold of themselves • and the like; (and see Co. Litt. (2 Inst. 7-1). 2 b.) Though the holding of lands (./) 2 Inst. 75. 4-j8 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [7 Edw. I. ; — wliich provided, that no person^ religious or other whatsoever, should buy, or sell, or receive under pretence of a gift or lease, or any other title whatso- ever ; nor should by any art or ingenuity appropriate to himself ; any lands or tenements in mortmain : upon pain that the immediate lord of the fee, or, on his default for one year, the lords paramount, and, in default of all of them, the king, might enter thereon as a forfeiture. This seemed to be a sufficient security against all alien- ations in mortmain ; but as these statutes extended only to gifts and conveyances between the parties, the religious houses now began to set up a fictitious title to the land which it was intended they should have, and to bring an action to recover it against the tenant, who by fraud and collusion made no defence ; and thereby judgment was given for the religious house, which then recovered the land by sentence of law upon a supposed prior title. And thus they had the honour of inventing those fictitious ad- judications of right which afterwards became the great assurances of the kingdom, under the name of common re- coveries [k). But, upon this, the statute of Westminster the Second (13 Edw. I.) c. 32, enacted, that in such cases a jury shall try the true right of the demandants or plaintiffs to the land ; and if the religious house or corporation be found to have it, they shall still recover seisin ; otherwise it shall be forfeited to the immediate lord of the fee, or else to the next lord, and finally to the king, upon the immediate or other lord's default. And the like provision was made by the succeeding chapter (cap. 33), in case the tenants sot up crosses upon their lands (the badges of knights templars and hospitallers) in order to protect them from the feudal demands of their lords, by virtue of the privileges of those religious and military orders. So careful indeed was this provident prince to prevent any future evasions, (/.) Vide sup. p. 21S ; post, bk. ii. pt. i. c. xix. ; Hist. Eng. Law, by Reeves, vol. ii. p. 15-5. CUAl'. XIV. — OF TITLK 1!Y I'OUFEITIRE. 409 [that when the statute of Quid ewpfores (18 Edw. I. e. 3) abolished all subinfeudations, and gave liberty for all men to alienate their lands to be holden of their next imme- diate lord, he caused a proviso to be inserted that this should not extend to authorize any kind of alienation in mortmain (/). And when afterwards the method of ob- taining the king's licence by writ of ad quod damnum was recognized by 27 Edw. I. (stat. 2), it was further provided by 34 Edw. I. (stat. 3) that no such licence should bo effectual without the consent of the mesne or intermediate lords {m). Yet still it was found difficult to set bounds to ecclesi- astical ingenuity ; for when they were driven out of all their former holds, they devised a new method of con- veyance, by which the lands were granted, not to them- selves directly, but to nominal feolfees to the vsc of these religious houses ; thus distinguishing between the posses- sion and the use, and receiving the actual profits, while the seisin of the lands remained in the nominal feoffee ; who was held by the courts of equity (then imder the direction of the clergy) to be bound in conscience to account to his cestui que use for the rents and emoluments of the estate. And it is to these inventions that our praetisers are in- debted for the introduction of " uses and trusts," the foundation of modern conveyancing (;?). But unfortu- nately for the inventors themselves, thej^ did not long enjoy the advantage of their new device ; for the statute 15 Rich. II. e. 5, enacted, that the lands which had been so purchased to uses should be amortised by licence from the crowTi, or else be sold to private persons ; and that for the future, uses should be subject to the statutes of mortmain, and forfeitable like the lands themselves. And whereas the statutes had been eluded by purchasing large (/) 2 Inst. 501. nature of tlie -writ ad quod danvuon, {»t) In the Revised Edition of see Hist. Eng-. Law, by Reeves, the Statutes, 34 Edw. 1, st. 3, is vol. ii. p. 230. printed 20 Edw. 1. As to the {>i) Vide sup. p. 360. 4G0 J!K. II. OF KIGIITS OF PROPERTY. — PT. I. THINGS REAL. [tracts of land adjoining to cliurclies, and consecrating them by the name of churchyards, such subtle imagination was also declared to be within the compass of the statutes of mortmain. And civil or. lay corporations, as well as eccle- siastical, were also declared to be within the mischief, and of course within the remedy provided.] The policy of these statutes prohibitory of alienation in mortmain, was afterwards considered as fit to be extended also to the case where lands, though not conveyed to cor- porate bodies, were given on trust for parish churches or other institutions, " erected and made of devotion ;" — for the trustees to carry such uses into effect being generally numerous, and the land belonging, on the decease of each trustee, to the survivors, these gifts operated like gifts in mortmain, properly so called, to the diminution of descents with their attendant feudal perquisites, and, for the same reason, to the diminution of escheats (o) . It was consequently declared by the statute 23 Henry YIII. c. 10, that all future grants of lands in trust for any of the purposes aforesaid, if for any longer term than twenty years, should be void. [As to the prohibition, however, to aliene to bodies corporate, it is to be observed, that, during all this time, it was in the power of the crown, by granting a licence of mortmain, to remit the forfeiture, so far as related to its own rights ; and to enable any spiritual or other corpo- ration to purchase and hold any lands or tenements in perpetuity; which prerogative is declared and confirmed [o] See the preamble of 23 Hen. " conciu'riug with the designs of 8, c. 10, and the argument in " the enterprising prince upon the Porter's case. (1 Rep. 23b.) The "throne, contributed towards the protection of the feudal rights, " general attack which was soon however, was probably not the ' ' afterwards made on one branch only object. " As the age became "of such institutions" (those "enlightened" (remarks an use- erected for devotion), "the re- ful writer), "gifts of this kind " ligious houses." — Hist. Eng. " were viewed with a less favour- Law, by Reeves, vol. iv. p. 237. "able eye. These sentiments, CHAP. XIV. — OF TITLE BY FORVEITURE. 461 [by the statute 18 Edw. III. stat. 3, c. 3. But as doubts were conceived at the time of the Revolution how far such licence was valid (;;) — since the king had no power to dispense with the statutes of mortmain by a clause of non ohaiante, which was the usual course, though it seems to have been unnecessary {q), and as, by the gradual declension of mesne seigniories through the long opera- tion of the statute of Quia emptores, the rights of imme- diate lords were reduced to a very small compass, — it was therefore declared by the statute 7 & 8 Will. III. c. 37, that the crown for the future, at its own discretion, might grant licences to aliene or take in mortmain, of whomso- ever the tenements might be holden {>•). Nor was this the only relaxation that, in comparatively early times, took place in the law of mortmain ; for after the dissolution of monasteries under Ilenry the eighth, though the policy of the next popish successor affected to grant a security to the possessors of abbey lands, yet, in order to regain so much of them as either the zeal or timidity of their owners might induce them to part with, the statutes of mortmain were suspended for twenty years, by the sta- tute 1 & 2 Ph. & M. c. 8 ; and during that time any lands or tenements were allowed to be granted to any spiritual corporation without any licence whatsoever.] And long afterwards, under the influence of much more commend- able views, it was enacted by 17 Car. II. c. 3 (s), and by many subsequent Acts — among which may be parti- cularized 2 & 3 Anne, c. 20 {t), 43 Geo. III. c. 108, 55 Geo. III. c. 147, 3 & 4 Vict. c. 60, 6 & 7 Vict. c. 37, {p) See 2 Hawk. P. C. 391 ; Co. («) By 1 k 2 Vict. c. lOG, s. 15, Litt. by Harg. 99 a, n. (1) ; stat. the statute of 17 Car. 2, c. 3, was 1 "W. & M. sess. 2, c. 2. repealed; but it was revived, so ('/) Co. Litt. 99 a. far as this subject is concerned, by {)■) Since this statute the writ of 6 & 7 Vict. c. 37, s. 25. ad quod damnum, in order to obtain {t) By this Act, and the subse- a licence of mortmain, seems no quent statutes passed for its amend - longer necessary. — See Coleridge's ment, the fund usually called Qiweu Blackstone, vol. ii. p. 273, n. (2) ; Aiuic'.i Boi(»fi/ is regulated. and Co. Litt. ubi sup. 462 BK. 11. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. s. 22, 17 & 18 Yict. c. 84, and 19 & 20 Vict. c. 104, s. 23 — that augmentations of poor livings may be made free from the restrictions of the statutes of mortmain ; and under other modern statutes grants of land are now permitted to be freely made to corporate bodies, for several purposes, and particularly for such as are connected with the education of the iwo)\ and with charities in general (w). In another direction, however, the law of mortmain as it existed in the time of Henry VIII. was afterwards made more stringent. It was held that the statute 23 Henry VIII. before mentioned did not extend to any thing but superstitious uses (.r) : and that therefore a man might give lands notwithstanding that statute, on trust for the maintenance of a school, or the sustenance of poor people, or any other charitable use [y). But as it was apprehended " from recent experience," that per- sons on their death-beds might make " large and impro- vident " dispositions even for these good purposes, to the disherison of theii' lawful lieirs (;:) ; it was therefore enacted by the "Mortmain Act," 9 Geo. II. c. 36 (r/), that no [u) Among recent enactments in relaxation of the law of mortmain are 4 & 5 Vict. c. 38 ; 7 & 8 Vict. 0. 37 ; 16 & 17 Vict. 0. 137, s. 27 ; 17 & 18 Vict. c. 112 ; 18 & 19 Vict. c. 124, ss. 35, 41 ; 31 & 32 Vict. c. 44 ; and 45 & 46 Vict. c. 21,— as to sites for biiildiags for religious, educational, literary, scicntijic, and other charitable purposes ; 22 Vict. c. 27, .ss. 1, 2, and 34 & 35 Vict. c. 13, as to recreation [/rounds, 2}ublic parks, &c.; 23 & 24 Vict. c. 134, s.3, as to certain Roman Catholic chari- ties. There is also a provision in the 25 & 26 Vict. c. 61, s. 9, enabling hiyhway hoards to take lands with- out licence. Also the 25 & 26 Vict. 0. 89, ss. 18, 21, enables registered coinpaiiifs to hold land, to a certain extent, without licence. And by the 33 &; 34 Vict. c. 34, trust funds held for jjublic and charitable pur- poses are permitted to be invested in real securities, without the trustees being deemed thereby to have acquired land witliin the meaning of the mortnuain laws. The sites of ancient monuments may likewise be conveyed (by devise or otherwise) to the Commissioners of Works, notwithstanding any law of mortmain. (See 45 & 46 Vict. 0. 73.) (x) Porter's case, 1 Eep. 24. See also Adams and Lambert's case, 4 Rep. 104 ; Da Costa v. Do Pas, Ambl. 228. (y) As to charitable uses, see also 43 Eliz. c. 4 ; 52 Geo. 3, c. 101 ; Bac. Abr. Char. Us. (z) 2 Bl. Com. 273. (a) As to the construction of this Act, see Att.-Gcn. r, Stewart, CHAP. XTV. — OF TITLE BY FORFEITUHE. 46*3 lands or liereclitaraents, or money to be laid out in the purchase thereof, shall be given or conveyed, or anyways charged or incumbered, in trust for, or for the benefit of, any charitable use whatsoever, unless by deed (6), executed in the presence of two witnesses twelve calendar months before the death of the donor (c) , and enrolled in Chancery, ■uithin six calendar months after its execution {d), — and unless such gift be made to take effect immediately (f), and be without power of revocation, or other clause or covenant for the benefit of the donor, or those claiming under him. And if these several conditions are not complied with, not only is the charitable use inoperative, but the convoj'ance itself is void to all intents and purposes (/). But by 24 & 25 Vict. c. 9 (amended by 25 & 26 Yict. c. 17), the restriction in the Mortmain Act as to clauses for the benefit of the donor is so far qualified that there may now be, in any deed or assurance for charitable uses made after the 17th May, 1861, a clause or covenant in his favour, — provided it shall consist of a grant or reservation of a nominal rent, or of mines, minerals, or easements : or shall consist of provisions as to buildings, roads, and the like, for the better enjoyment as well of the property granted as of adjacent property ; or of provisions as to re-entry, on 2Meriv. 161 ; Doc v. Lloyd, oBing. [d) However, by 29 & 30 Vict. N. C. 741 ; Jefferies v. Alexander, c. 57, deeds otherwise valid, but not 8 House of Lords Cases, p. 594 ; hitherto enrolled, may be autho- Entwisle v. Davis, Law Rep., 4 rized to be enrolled, on the court Eq. Ca. 272 ; Hawkins v. Allen, being satisfied that the deed was ib., 10 Eq. Ca. 246; Luckraft v. made Zio««^f^f for full and valuable Pridham, ib., 6 Ch. D. 214. consideration, and that the omission (h) Under the Mortmain Act, to enrol arose from mere igaoraneo, such deed was required also to be inadvertence, or accident. indented, but by 24 & 25 Vict. c. 9, (e) See Wickham v. Marquis of s. 1, it need now neither bo indented Bath, ubi sup. A demise will be nor purport to be indented : and in deemed to take effect immediatehj, the case of assurances of land of if it take effect within a year from copyhold and customary tenure, no its date. (26 k, 11 Vict. c. 106.) deed is required. (/) Doc v. Wrighte, 2 Barn. & (f) See Wickham v. Marquis of Aid. 710. Bath, Law Rep., 1 E(i. Ca. 17. 464 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. breach of sucli covenant, or other stipulation of the like nature. The donor, however, in all such cases, must reserve for his representatives the same benefits as for himself, if he would prevent the operation of the statute. It will be observed that the Mortmain Act altogether prevents any disposition, by iiill, of lands (or of money to be laid out in land) in trust for any charitable use {g). On the other hand, its provisions are made subject to partial exception in the case of stock in the public funds ; as to which, instead of a deed executed twelve months before the donor's death, it is required that the transfer in the bank books should be made six months at least before his death (//). There is also an exception where the transaction is a bond fide purchase, a full valuable consideration being paid down, or reserved by way of annual paj-ment (/) : and such purchases will (by more recent Acts) be valid, not- withstanding the death of the vendor within twelve months after the execution of the deed ; and also though a sub- stantial and not a nominal rent be reserved to the vendor as consideration for the assurance (,/). Gifts to the Universities of Oxford and Cambridge, or any of their colleges, or in trust for the scholars on the foundations of Eton, Winchester, and Westminster (/.), — or in favour of the British Museum (/), — are also entirely exempted from the operation of the Mortmain Acts. 2. Alienations by particular tenants, when they con- veyed by a common law conveyance, such as feoffment, fine, or recovery, a greater estate than the law entitled them to make, were, at common law (as already noticed), forfeitures to the person in immediate remainder or rever- sion [ni). As if tenant for his own life aliened by feoffment {g) Sco Brook v. Badley, Law {j) See 9 Geo. 4, c. 85 ; 27 & 28 Eep., 4 Eq. Ca. 106; 3 Ch. App. Vict. c. 13, 8. 4. 672 ; In re Watmough's Trusts, (/.-) 9 Qeo. 2, c. 36, s. 4. ib., 8 Eq. Ca. 272. (/) 5 Geo. 4, c. 39. [h) 9 Geo. 2, c. 36, s. 1. \m) Vide sup. pp. 316, 324. (i) Ibid. Accordiug to Blackstonc, (vol. ii. CHAP. XIV. — OF TITLE liY FORFEITURE. 465 for the life of another, or in tail or in fee ; — these being estates which either must or might last longer than his own, the creating them was not only beyond his power, and inconsistent with the nature of his interest, but was also a forfeiture of his own particular estate, to him in remainder or reversion, who was entitled to enter imme- diately (n). For which the reason seems to be, that the tenant, by thus taking upon himself to assert a more extensive right than he derived from the lord of the fee, violated the feudal compact (which bound him to fidelity), and consequently no longer deserved to retain its bene- fit (o). He had therefore, by his own act, determined his own original interest ; and, on such determination, the next taker was entitled to enter regularly, as in his re- mainder or reversion {p). The same law which is thus laid down with regard to tenants for life, held also with respect to lessees and other tenants of mere chattel in- terests ; but if a tenant in tail aliened in fee, this was no immediate forfeiture to the remainder-man, but a mere discontinuance, as it was called, of the estate tail {q), which the issue might afterwards avoid by one of the class of actions called real; or, after the abolition of real actions, simply by entry (r) : the reason assigned being that he in p. 274,) "the forfeiture accrues cites Litt. s. -ilo. " when the alienations are greater (o) Vide siii). pp. 179, 280; et * ' than the law entitles them to Gilb. Ten. 38, 39, where, after ob- ' ' make, and divest the remainder serving that if the vassal renounced "or rere>'««o«," which is also the the feud this was always a cause of expression of Lord Coke. (Co. Litt. forfeiture by the old feudal law, the 251 a.) But where the reversioner learned author proceeds to remark, remainder is in the crown, it is not that " if the tenant for life makes divested, and yet a forfeiture equally " a feoffment, or levies a fine, it accrued. (Co. Litt. 251 b.) So the " is palpably contrary to his oath levying of a fine in fee, by the par- ' ' of fidelity to the reversioner, and ticular tenant, of a thing lying in " therefore that is a plain renun- grant, used to work a forfeiture; " elation of the feud." and yet it did not divest the re- [p) See Bl. Com. ubi sup. mainder or reversion ; (ibid. And {q) Co. Litt. 328 a ; 2 Inst. 335 ; see Podger's case, 9 Rep. 106 b.) Co. Litt. by Butler, 333 a, n. (1). (n) Blackstone (vol. ii. p. 271) ('") Pi. discontiniianceiovmerlj took. VOT,. I. II II 466 BK. 11. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. remainder or reversion Las only a very remote and barely possible interest therein, until the issue in tail is extinct (s). This kind of forfeiture, viz. that which accrues by the illegal alienation of the particular tenant, differs mate- rially, it is to bo observed, from forfeiture by breach of condition in deed, to which we had occasion to refer in a foiTner chapter, in this respect — that the reversioner is, in that case, in as of his former seisin ; and consequently not only the estate of the tenant himself, but all interest de- rived out of it (even though derived before the forfeiture) are defeated {t) : but in case of forfeitures by A\Tongful alienation, all rightful estates previously created, and all charges lawfully made on the land, are good and available in law. Thus if tenant for twenty years granted a lease for fifteen, and then aliened by feoffment in fee, thereby forfeiting his own estate, yet the lease he had granted would be good. The whole subject, however, of forfeitm-e by alienation has now lost much of its former importance, in consequence of changes in the state of the law relative to the chief conveyances by which this doctrine of the common law was brought into operation ; viz. the aboli- tion of fines and recoveries by 3 & 4 Will. IV. c. 74, and the provision of 8 & 9 Yict. c. 106, s. 4, formerly noticed, " that a feoffment made after 1st of October, 1845, shall " not have any tortious operation" {u). 3. [Analogous both in its natui'e and its consequences, to an illegal alienation by the particular tenant, is his disclaimer : as where a tenant neglects to render his lord the due services, and, upon an action brought to recover away the right of entry, and put it -was enacted that no discontinu- the issue, and those in reversion ance shall take away any right of and remainder, to the necessity of entry. bringing a real action. (Litt. ss. (*■) 2 Bl. Com. p. 275. 595, 596, 597; Doe v. Finch, 1 Nev. [t) Gilb. Ten. 200; Dy. 344 a ; & M. 130.) But now by the 39th 4 Kep. 24 a; Co. Litt. 234 a; 1 sect, of the 3 & 4 Will. 4, c. 27, Eoll. Ab. 474 ; vide sup. p. 299. (abolishiDgmostof thercalactions.) [>i) Vide sup. p. 316. CHAP. XIV. — OF TITLE BY FORFEITURE. 467 [them, disclaims to hold of his lord. Which disclaimer of tenure, in any court of record, is a forfeiture of the lands upon reasons most apparently feudal (,r).] And so, like- wise, if the particular tenant does any act which amounts to a virtual disclaimer, — as if, being tenant for life only, he claims, in any court of record, to have in the estate a larger interest (//) . And in a case, where tenant for years gave up possession of the premises demised to a third party who claimed paramount to the landlord, with intent to assist that party in setting up the adverse title— such behavioiu' was held a virtual disclaimer, and to work a forfeiture of his lease (~) . {x) Finch, 270, 271. to bo distlnguislied from disclaimer [rj) Co. Litt. 251 b. by a trustee iii bankruptcy, as to (;) Doe d. Ellerbrook v. Flynn, which see bk. ii. pt. ii. c. vi. ; also, 4 Tyrw. G19. And see Doe d. from cisclaimer by a trustee gene- Graves V. Wells, 10 Ad. & Ell. rally, as to which vide post, pp. 480, 427. This species of disclaimer is 481. II II 2 468 BK. II. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. CHAPTER XV. OF TITLE BY ALIENATION. The most usual title to real estates is that of alienation or conveyance : under wliicli may be comprised any metliod wherein estates are voluntarily resigned "by one man, and accepted by another : whether that be effected by sale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties. The acquisition of an estate by way of alienation is of more recent origin in the law of England, than taking property by way of descent, [For we may remember that, by the feudal law, a pure and genuine feud could not be transferred from one feudatory to another, without the consent of the lord : lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feudal services, instead of one on whose abilities and fidelity he could depend {a). And as the feudatory could not aliene it in his lifetime, so neither could he by will defeat the succession, by devising his feud to another family ; nor even alter the course of it, by imposing particular limitations, or prescribing an unusual path of descent. Nor could he aliene the estate, even with the consent of the lord, unless he had also obtained the consent of his own next apparent or presumptive heir {h). And therefore it was usual in very anticnt feoffments, to express tliat the alienation was made by consent of the heirs of the feoffor : or sometimes for the heir apparent {a) Vide sup. p. 170. (/') Co. Litt. 91 ; AVri-lit, Tea. WJ. CHAP. XV. — OF TITLE BY ALIENATION. 469 [himself to join with the feoffor in the grant (c). And, on the other hand, as the feudal obligation was looked upon to be reciprocal, the lord could not aliene or transfer his seigniory without the consent of his vassal : for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation ; or even to transfer his fealty without his being thoroughly apprised of it, that he might know with certainty to whom his renders and services were due ; and be able to distinguish a lawful distress for rent, from a hostile seizing of his cattle by the lord of a neighboiu-ing clan (r/). This consent of the vassal was expressed by what was called attorning, or pro- fessing to become the tenant of the new lord : and the doctrine of attornment was afterwards extended to all lessees for life or years ; between whom and the lessor there still exists (as we have seen) the feudal relation of lord and tenant {e). Accordingly, if one bought an estate with any lease for life or years standing out thereon, and the lessee refused to attorn to the purchaser, the grant or contract was in most eases void, or at least incomplete ; and this was also an additional clog upon alienations (/). {c) Madox, Forimxl. Ang-1. Nos. riety was attributed, that the feudal 316, 319, 427. feoffment could not be altered with- [d) Gilb. Ten. 83. out it ; 2nd, because the action of [e) Vide sup. pp. 256, 294. It waste, and the right of forfeiture is to be observed, however, that the of tenant for life, accrued to him attornment of the i)articular tenant in remainder ; and therefore, the was also necessary upon the grant tenant for life being to some pvir- of a remainder, as a reversion; and poses attendant on the remainder- yet there is no feudal relation be- man, it was fit that he should attorn tween the particular tenant and to his grant. — Gilb. Ten. 90, 91. the remainder-man. The reasons (/) Litt. § 551. In such cases, assigned for attornment in this case however, the lessee might be corn- were, 1st, that the remainder-man ijelled to attorn, by the landlord's came in by the feudal feoffment, levying a fine ; and no attornment and therefore the remainder would was necessary where the estate not pass without the utmost noto- vested under the Statutes of Uses riety ; and this was by attonmicut or of Wills. (See Brown v. Storey, coram pariljKs, to which such noto- 1 Man. & Gr. in notis, p. 129.) 470 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [But by degrees this feudal severity wore off; and experience showed that property best answered the pur- poses of civil life, especially in commercial countries, when its transfer and circulation were totally free and unrestrained. The road was cleared, in the first j)lace, by a law of King Henry the first, which allowed a man to sell and dispose of lands which he himself had purchased ; for over these he was thought to have a more extensive power, than over Avhat had been transmitted to him in a course of descent from his ancestors (g) ; a doctrine which is countenanced by the feudal constitutions themselves (A) : yet he was not allowed to sell the whole of his own acquire- ments, so as totally to disinherit his childi*en, any more than he was at liberty to aliene his paternal estate (/). Afterwards, a man seems to have been at liberty to part with all his own acquisitions, provided he had previously purchased to him and his assigns by name (k) ; and he was also then allowed to part mth one-fourth of the inherit- ance of his ancestors, without the consent of his heir (/) : but by the great charter of Henry the third, no alienation was permitted of any part of the land, unless sufiicient was left to answer the services due to the superior lord {)ii) ; which sufficiency was probably interpreted to be one-half or a moiety of the land (n). But these restrictions were, in general, removed by the statute of Quia eniptores (18 Edw. I.) ; whereby all persons, except the king's tenants in capitc, were left at liberty to aliene all or any part of their lands at theii- own discretion (o) : subject {ff) ^' Umptiones vel acqicisitioiies potest fiUum stiicm hccredem cxharc- suas (let eui magis velit. Terrain dare.^' — Glanv. 1. 7, c 1. atttcin qtiam ci parentes dederiint, non {h) Mirr. c. 1, s. 3. This is also mittat extra cognationem suam.*' — ■ borrowed from the feudal law. WUkins, Leg. Ang.-Sax. LL. (Feud. 1. 2, t. 48.) Hen. 1, c. 70. (/) Mirr. ubi sup. (/() Feud. 1. 2, t. 39. {»i) 9 Hen. 3, c. 32, (i) " Si queslum tantiim hahitcrit («) J3alrymple, of Feiids, 95 ; 2 is, qui partem terra sua donare Bl. Com. p. IGl. volucrit, tunc qiddem hoc ci licet; (o) Vide sup. p. 199. scd non iotuni qucstuin, quia non CHAP. XV. — OF TITLE HY ALIENATION. 471 [only to the provision that all conveyances of the fee should be to hold of the chief lord, and not of the grantor. And even these tenants in capite were hy the statute 1 Edw. III. st. 2, c. 12, permitted to aliene on paying a fine to the king {p). Again, by the temporary statutes 7 Hen. YII. c. 2, and 3 Hen. VIII. c. 4, all persons attending the king in his wars were allowed to aliene their lands without licence, and were relieved from other feudal burdens. And, lastly, fines for alienations were, in all cases of free- hold tenure, entirely abolished by the statute 12 Car. II. c. 24.] The restraints upon devisuig lands by will, (except in some eases by particular custom,) after being partially taken off by the Statute of Wills (32 Hen. VIII. c. 1), were at length totally removed, on the abolition of military tenures by the statute of Charles the second just mentioned. The doctrine of attornment continued later than any of the rest, and became extremely troublesome, though many methods were invented to evade it {q) : till at last, by statute 4 & 5 Anne, c. 3 (sometimes cited as 4 Anne, c. 16), s. 9, it was made no longer necessary to complete any grant or conveyance; while, on the other hand, by 11 Geo. II. c. 19, s. 11, the fraudulent attornment of a tenant to a stranger, claiming title, to the prejudice of his landlord's possession, was rendered wholly inoperative (r). The result of these several relaxations has at length been the complete disengagement of the realty from all the feudal restraints on alienation ; — so that it may be laid down as a general maxim, subject to very few excep- tions, that all estates in land are now freely transferable, (//) 2 Inst. G7. p. 129). But a legal attornment [q) 2 Bl. Com. 290. may still be required, — as -vrliero (r) See also 4 Geo. 2, c. 28, the new landlord claims rent not s. 6 ; 5 & 6 Vict. c. 108, s. IG. under a grant or conYeyance, but It is said that the term " at- as tenant by elegit, or otherwise, tornment" is now, since the above imder a judgment. (See Harris v, statutes, chiefly applied (somewhat Booker, 4 Bing. 99.) Also, where inaccurately) to such an acknow- the court appoints a receiver of lodgment of tenancy as operates real estate, it invariably directs the by way of estoppel (see Bro^vn v. tenants to attorn and pay their Storey, 1 Man. & Gr. in notis, rents to such receiver. 472 BK. II, OF RIGHTS OF PROPEKTY. — FT. I. THINGS REAL. unless granted under express stipulation to tlie contrary. And even such stipulations are in some instances ineffi- cacious to the end designed ; and are disregarded as repugnant in their nature, or contrary to the policy of the law. Thus if an estate be conveyed in fee simple, with a condition prohibiting the grantee and his heirs, or the grantee himself, from all alienation thereof, the con- dition is merely void (.s) ; and a similar proviso, annexed to an estate tail, will not prevent the tenant from making a valid conveyance in fee simple, in such method as the law has prescribed for that purpose (t). Estates at will or at sufferance, however, are, for reasons obviously re- sulting from their nature and constitution, not assignable. And besides these, there were, at the common law, some other interests which, generally speaking, were incapable of transfer. For a man who had been ousted of the possession of his land by the wrongful act of a stranger, 80 as to retain a right of entry only, could not in general convey that right to another ; lest pretended titles might be granted to great men, whereby justice might be trodden [s) Co. Litt. 222b, 223n. ; Rosher occasion to say more hereafter. It V. Roslier, 26 Ch. Div. 801. is to conditions restraining tenants {t) lb. 223 b; Mary Portington's in tail from alienation, that the case, 10 Rep. 35. Such a condi- term "perpetuity" eeems to have tion, ho'trever, if annexed to a lease been first appUed. — (See Third Real for years, is binding. (Co. Litt. Property Report, p. 30.) As to the 223 b ; Roe v. Galliers, 2 T. R. 133.) validity or invalidity of provisions The reason assigned by Coke for restrictive of alienation in other the invalidity of a condition re- cases, — a subject whicli would lead straining a tenant in fee simple or to too lengthy a discussion in this fee tail from any alienation what- place, — the following cases may bo ever, is the repugnancy of such a consulted : — Roe v. Galliers, ubi restriction to the nature of the gift. sup.; Ware v. Cann, 10 Barn. & A condition, however, restraining Cress. 433 ; Brandon v. Robinson, him and bis Jieirs from alienation, 18Ves. 433; Jackson «•. Ilobhouso is also opposed to that policy of 2 Mcr. 483 ; Scarborough v. Bor- tlic law which will not suffer any man, 1 Beav. 34 ; Allen r. Jackson, attempt to create a perpetuity, that 1 Ch. D. 399 ; Jcnncr v. Turner, is, to confine property in a given 16 Ch. D. 188. See also 19 k 20 course of (Lc\o\\xtion in perpettium ; Vict. c. 120, s. 37. — a subject on which we shall have CHAP. XV.— OF TITLE HY ALIENATION. 473 down and the weak oppressed {u) : and tlie same law was established with respect to a contingent interest (.r) ; as to which, however, this further doctrine obtained, that though not generally transferable at law, yet the assignment of it for a valuable consideration was considered effectual in equity (y). But by 7 Will. IV. & 1 Vict. c. 26, s. 3, both a right of entry and a contingent interest were made capable of passing by way of devise. And by 8 & 9 Viet. c. 106, these classes of interests may now also pass hy deed ; — it being provided that after the 1st October, 1845, a contingent, an executory, and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, — and also a right of entry, whether imme- diate or future, and whether vested or contingent, in or upon any tenements or hereditaments in England, of any tenure, — may be disposed of by deed ; with a saving, however, as to the regular modes of aUenation of the interests of tenants in tail and married women, — which are still to be observed (s) . Having made these remarks on the subject of alienation in general, we shall now proceed to inquire, first, icho may aliene, and to whom : and, secondly, how a man may aliene ; that is to say, to discuss the several modes of conveyance. I. Who may aliene, and to whom : or, in other words, who is capable of conveying and who of purchasing ; the latter term being of course here used, not in its popular but in its technical sense («). And herein we must con- ('() 2 Bl. Com. 290. See Ken- 10 Bam. & Cress. 181 ; Eight v. nedy v. Lyell, 15 Q. B. D. 491. BuckncU, 2 Barn. & Adol. 278. (x) See Forrester v. Goodright, (//) 1 Brest. Est. 89 ; 1 Fonb. 8 East, 552; Doe v. Tomkinson, Tr. Eq. 213, 214. 2 M. & Sel. 170. As to the bind- [z) 8 & 9 Vict. c. IOC, s. 6. As ing of a contingent interest by to this section, see Hunt v. Eem- esloppel, see Goodtitlo r. Morse, 3 nant, 9 Exch. 635. T. R. 371 ; Doer. Martin, 5 Barn. {a) Vide sup. p. 386. & Cress. 527 ; Christmas v. Oliver, 474 BK. II. OF RICiHTS OF PROPERTY. — PT. I. THINGS REAL. sider rather the incapacity than capacity of the several parties; for all persons are prima facie capable both of conveying and of purchasing, unless the law has laid them under any particular disabilities. It is clear that at one period of our law attainted per- sons, though they might purchase lands, were disabled from holding them {h), — the lands so purchased being subject to escheat and forfeiture, as already explained (Such being the state of the law with respect to alienation by one insane, it is laid down, on the other hand, that he is competent to ]nirc/i). Thus in every grant there must be a grantor, a grantee, and a thing granted ; in every lease a lessor, a lessee, and a thing demised. Secondly, the deed must be n-riffcn or printed (in any character or in any language) either upon paper or on parchment ; and it has been said that if on stone, board, linen, leather, or. the like, it is no deed {n). Wood or stone may be more durable, and linen less liable to rasures, but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable c|ualities ; for there is nothing else so durable, and at the same time so little liable to alteration. It must also have the regular stamps imposed on it by the several statutes for the increase of the public revenue : else it cannot be given in evi- dence (o). («?) Co. Litt. 35 b. tion of the judge to any OTnission (w) lb. 229 a ; F. N. B. 122. or insufficiency of tlie stamp ; and (o) 2 Bl. Com. 297. The priu- if the tustrviment be one which cipal enactments now in. force, may legally be stamped after regulating the siawps on deeds, execution (a proviso which ex- are contained in the 55 Geo. 3, eludes, it may be remarked, bills 0. 184, and the Stamp Act, 1870 of exchange and promissory notes), (33 & 34 Vict. c. 97). By the it may be received in evidence, 16th section of this last statute (in saving all just exceptions on other substitution of a p^o^■ision to tlie grounds, on j^aymcnt to the officer same general effect contained in of the amount of the unpaid duty, the Common Law Procedure Act, and of the penalty payable by 1854) it is provided, that on the law on stamping after execution — production of au instrument which penalty is fixed, by the chargeable with any duty, as 1 5th section of the Act, at the sum evidence in any court of civil of 10/., together with interest on judicature, it shall be the duty of the amount of the unpaid duty the officer of the court reading where it exceeds 10/. — and of the such instruTnent to call the atten- sum of 1/. in addition. 486 liK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [Thirdly, the matter of the deed must be legally and orderly set forth ; that is, there must he words sufficient to specify the agreement and hind the parties ; which suffi- ciency must be left to the courts of law to determine [p). It is not indeed absolutely necessary in law to have all the formal parts that are usually drawn out in conveyances, so as there be sufficient words to declare clearly and legally tlie jmrty's meaning. But as these formal and orderly parts are calculated to convey that meaning in the clearest, distinctest, and most effectual manner, and have been well considered and settled by the wisdom of successive ages, it is prudent not to depart from them without good reason or urgent necessity ; and therefore they shall be here mentioned in their usual order (y).] [p) Co. Litt. 225 a. {q) Co. Litt. 6 a. In 1845, two Acts were passed to enable parties to abridgfe the language in which deeds relatmg to real property- have been usually drawn, viz. 8 & 9 Vict. 0. 119 and c. 124 ; and more effective provisions in the same behalf are contained in the statute 44 & 45 Vict. c. 41. It may also be useful to notice here that by 37 & 38 Vict. c. 78, s. 1, in the comj)letion of any contract of sale of land made after 31st December, 1874 (subject to any stipulation therein to the contrary), the period of forty has been substituted for that of sixty years ; which (prior to that Act) a purchaser, accord- ing to the practice, was entitled to require as the commencement of title. (As to this, see Prosser v. "Watts, 6 Mad. 59 ; Frend v. Buck- Icy, Law Rep., 5 Q. B. 213.) With regard to the practice on a sale, as soon as the abstract of instruments executed in regard to the property during the proper period, has been verified by examination of the in- struments, &c., and approved by the pm-chaser, he prepares the draft of the conveyance ; and when that draft is approved by the vendor, the purchaser also prepares an en- grossment of the deed properly stamped, and sees to its due exe- cution. "When the transaction is not a sale, but a lease, the course is different. No abstract is delivered, and the draft and engrossment, properly stamped, of the lease are usually prepared not by the lessee but by the lessor. It may also be observed that by 37 & 38 Vict, c. 78, s. 2, and especially 44 & 45 Vict. c. 41, ss. 3, 13, under a con- tract to grant or assign a term of years out of a freehold or a lease- hold, the lessee or assign shall not be entitled to call for the title to the freehold ; and a recital in an instrument twenty years old, un- less proved iuaccui-ate, is made sufficient evidence of the facts recited therein. (See Bolton v. London School Board, Law Rep., 7 Ch. D. 766.) CI{AP. XVI. — OF DEEDS, 487 1. The 2)remises may be used to set forth the number and names of tlie parties, with their additions or titles ; and, in the case of an indenture, the deed is always for- mally described as made inter partes, that is, as made between such an one of the one part, and such another of the other part. As to which, this distinction was formerly established, that one named as party in an indenture could not covenant therein with a stranger (or person not named as party), nor could the latter take an estate under the deed, excejit by way of remainder {r) ; though, on the other hand, a stranger might covenant with one who was party, and bind himself by executing the deed (*•). But by 8 & 9 Vict. c. 106, s. 5, it is now provided, that an immediate estate and interest in any hereditaments, and the benefit of a condition or covenant respecting any here- ditaments, may be taken, though the taker be not named a party to tho same indenture. The premises also contain the recital, if any, of such deeds, agreements, or matters of fact, as are necessary to explain the reasons upon which the present transaction is founded ; and herein also is set down the consideration upon which the deed is made. And then follows the certainty of the grantor, grantee, and thing granted {t). With respect to the last, that is, tlie description of the thing granted, a conveyance of any land will suffice (as we have elsewhere seen) to j^ass also the structures or buildings thereon, as well as all mines below the surface [u) ; but a conveyance of certain specified land, or of a certain house, (even adding the words with the ajypartcnances,) will not pass other land not specified, although it may have been xisually occupied together with the property conveyed : unless indeed the laud not specified should consist of the orchard, garden, or cm-tilage of a house conveyed, in which case it would pass under a {)■) See Eeeves v. Watts, Law don, 3 M. & Sel. 322 ; Berkeley v. Rep., 1 Q. B. 412. Hardy, 5 B. & Cress. 355. (s) Co. Litt. 259 b ; see Salter v. (t) 2 Bl. Com. 298. Kidgley, Carth. 76; Storcr ;•. Gor- {") Vide siip. p. 169, 488 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. grant of tlie house and its appurtenances, or even (as it should seem) under a grant of the house simply (r). 2, 3. [Next come the hnhendum and tenendum. The office of the habendum is properly to determine what estate or interest is granted by the deed (?r). Though this may be performed, and is sometimes performed, in the pre- mises ; in which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict, or be re- pugnant to, the estate granted in the premises (.r) . As if the premises describe a grant to be " to A. and the heu's of his body," habendum " to him and his heirs for ever," or vice versa ; here A. has an estate tail and a fee simple expectant thereon [y). But had it been in the premises *' to him and his heirs," habendum " to him for life," the habendum would be utterly void ; for an estate of inherit- ance is vested in him before the habendum comes, and shall not afterwards be taken away or divested by it {%). The tenendum " and to hold " is now of very little use, and is only kept in by custom. Formerly it sometimes went on to express the tenure by which the estate granted was to be holden ; viz. " tenendum per servitium miJitare, in burgagio, in libera socagio, (^c." But all these being, as we have seen, now reduced to free and common socage, (r) See Co. Litt. by Harg. 5 b, case of a conveyance of the fee) the n. (1); 2 Saund. by "Wms. 401, reversion and remainders, &c. , and n. (2). As to the woi'd appurtc- all the estate, &c., both at law and nances, see Co. Litt. 121b; Hinch- eqviity, of the grantor, &c. And liflPe V. Kinnoul, 5 Bing. N. C. 1, see further the statute 44 & 45 Vict. 25. It may be noticed here, that c. 41, s. 6 (as to general words), by the Acts of 8 «& 9 Vict., rcfciTed s. 7 (as to iinphed covenants), and to supra, p. 486, n. [q), it was pro- s. 63 (as to the estate clause), vided that every deed made con- (w) See Burchell v. Clark, Law formably to those Acts should, Eep., 2 C. P. D. 88. unless any exception were specially (.r) See Shawv.Kay, 1 Exch. 412. made therein, be held to include all [y) Co. Litt. 21 a ; Thurman v. houses, out-houscs, &c., and here- Cooper, 2 Roll. Rep. 19, 23 ; Cro. ditamcnts and appurtenances what- Jac. 476. And see Goodtitle v. soever to the lands therein com- Gibbs, 5 B. & Cress. 709. prised belonging, or in anywise (c) Baldwin's case, 2 Rep. 23 ; appertaining. Sec. ; and also (in the Earl of Rutland's case, 8 Rep. 56. CHAP. XVT. — OF DEEDS. 489 [the tenure is never specified. Before the statute of Quia onptorcH (18 Edw. I.), it was also sometimes used to denote the lord of whom the land should he holden ; but that statute directing all future purchasers to hold, not of the immediate grantor, but of the chief lord of the fee, tliis use of the tenendum, hath been also antiquated ; though for a long time after we find it mentioned in antient charters, that the tenements shall be holden de eapifalibus donuniH feodi ; but as this expressed nothing more than the statute had already provided for, it gradually grew out of use [a) . 4. Next follow the terms of stipulation, if any, upon which the grant is made ; the first of which is the red- dendum, or reservation whereby the grantor doth create or reserve some new thing to himself out of what he had before granted (i). As "rendering for the same, yearly, the sum of lO.s.," or a peppercorn, or two days' ploughing, or the like. Under the pure feudal system, this return or rent consisted, in chivalry, principally of military services ; and, in villcnage, of the most slavish offices. But in socage it has usually consisted of monej^ though it may still consist of services, or of any other certain profit (r). To make a rcdde)idum good, if it be of any thing newly created by the deed, the reservation must be to the grantors, or some or one of them, and not to any stranger to the deed. But if it be of antient services or the like, annexed to the land, then the reservation may be to the lord of the fee {d). 5. Another of the terms upon which a grant may be made is a condition ; which is a clause of contingency, on the happening of which the estate granted may be defeated; as " provided always, that if the mortgagor shall pay the " mortgagee 500/. upon such a day, the whole estate *' granted shall determine," and the like (r).] («) Madox, Formul. passim. {d) Browning v. Beston, Plowd. (4) See Buriliell v. Clark, Law 132 ; Whitlock's case, 8 Ecp. 71. Eep., 2 C. P. D. 88. {>■) As to mortgages, vide sup. [(■) Vide sup. pp. 187, 205. p. 303. 490 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. 6. As to the clause of u-arranty formerly inserted in conveyances, it has fallen into disuse, hut in its connection with the previous state of the law it still deserves some attention from the student (/). By this clause the grantor did for himself and his heirs " warrant " and secure to the grantee the estate conveyed. And the origin of this practice seems to be in the feudal constitution, whereby, if the vassal's title to enjoy the feud was disputed, he might "vouch," or call the lord or donor to warrant or ensure his gift ; which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense {(j). And so, by our antient law, if a man enfeoffed another in fee (a mode of assurance analogous to the original feudal donation), the law annexed a warranty to the grant (/^). [So, also, after a partition or exchange of lands of inheritance, if either party or his heirs were evicted of his share, the other and his heirs were bound to warranty (/). And, again, upon a gift in tail or lease for life, rendering rent, the donor (or lessor) and his heirs were bound to warrant the title (,/). But in other forms of alienation bearing no sort of analogy to the gift of a feud, no warranty whatsoever was ever held to be implied ; and therefore in such cases it became necessary to add an express clause of warranty in order to bind the grantor and his heu's ; though where such clause was in fact superadded, it was held that such warranty not only bound the warrantor himself to protect and assure the title of the warrantee, or yield him other lands in their stead, but that it also bound the heir of the warrantor to the same effect — provided he had other sufficient lands by descent from the warranting ancestor (/>•) ; and this, whether (/) As to M'rtnwj/y, sec Co. Litt. (i) lb. 174, 384 a. By 8 & 9 Ly Butl. 3G5 a, n. (1), 373 b, ii. (2), Vict. c. lOG, 8. 4, it is now enacted, where tbe whole subject is copiously that an exchange or partition made discussed. by deed executed after 1st October, ((/) 2 Bl. Com. 300; Feud. 1. 2, 1815, shall not imply any condition t. 8 and 25. in law. (A) Co. Litt. 384 a, (y) Co. Litt. 384 b. (Z-) lb. 102 a. CH.Vr. XVI. — OF DEEDS, 401 [the warranty was lincaJ, or collateral to the title of the land. Lineal warranty was, where the heii* derived, or might by possibility have derived, his title to the land warranted, either from or through the ancestor who made the warranty, as where a father, or an elder son in the life of the father, released to the disseisor of either themselves or the grand- father, with warranty, — this was lineal to the younger son (/). Collateral warranty was, where the heir's title to the land neither was, nor could have been, derived from the warranting ancestor ; as where a younger brother released to his father's disseisor, with warranty : — this was collateral to the elder brother {m)^^ But though the heir was only bound to insure the title of the grantee on his ancestor's warranty, provided he had assets, yet he was, whether assets descended or not, per- petually bound from claiming the land himself {n). But this doctrine being found under certain circumstances to produce inconvenient and unjust results, statutes were passed to restrain the force of a warranty in this respect in a variety of instances ; and the practice itself, of in- serting in deeds any clause of warranty, fell by degrees out of use (o). 7. [A deed of conveyance iisually also contains, covc' nants, — which are clauses of agreement {eoiirentionea) therein, whereby either jiart}^ may stipulate for the truth of certain facts, or may bind himself to perform or to abstain from something, or to give something to the other. Thus the grantor may covenant that ho hath a right to convey ; or for the grantee's quiet enjoyment, or the like ; the grantee may covenant to pay his rent, or keep the pre- mises in ropaii", or not to use them in a certain manner, and the like (;0-] ^7 the common law, the use of the words (/) Litt. ss. 703, 706, 707. c. 20 ; 4 & 5 Aun. c. 3, s. 21 ; 3 & 4 {in) lb. ss. 705, 707. Will. 4, c. 27, s. 39; c. 74, s. 14. («) As to assets, vide .sup. p. (p) As to the effect of an im~ 432. possible covenant, see Clifford v, («) See 6 Edw. 1, o. 3 ; II Hen. 7, AVatts, Law Eep., .5 C. P. 577. 492 J!K. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. " demise," " grant," or " give," raised an implied covenant for quiet enjoyment, &o., on the part of the grantor, except so far as it might be controlled by some express covenant in the same deed {q) ; but (so far at least as regards the words "grant" and "give") the law on this head is now altered : it being enacted by 8 & 9 Viet. c. 1 06, s. 4, tliat neither of those words in any deed executed after 1st October, 1845, shall imply any covenant, except so far as they may by force of any act of ]}avlkunent imply a cove- nant (r). A covenant in any deed gives to the covenantee and his representatives, in case of its breach, a right of action for damages against the covenantor and his repre- sentatives ; and in a deed of conveyance, a covenant directly relating to the land conveyed will also, in general, run with the land ; that is, not only will the original parties or their representatives, but each successive owner of the land, be entitled to its benefit, or liable (as the case may be) to its obligation (.s). It is consequently usual, so far as covenants for title are concerned, for a person who sells land which he himself bought, to covenant only against his own acts ; or if he did not acquire it in that method, then to extend the covenant as far back as to the acts of the last buj^er, but no further : and this is a sufficient security to the vendee, where all former vendors have entered into a similar covenant ; because all these engagements run with the land, and consequently operate for his protection (/). [q) See Cro. Eliz. 674 ; Merrill 333 ; Simpson v. Clayton, 4 Biiig. V. Frame, 4 Taunt. 319 ; Baber v. N. C. 780 ; Marshall v. Oakes, 2 Hanis, 9 Ad. & El. o32. H. & N. 793 ; Wilson v. Hart, (r) See, for example, 8 «S: 9 Vict. Law Rep., 1 Ch. App. 463 ; Mor- c. 18, 8. 132. land v. Cook, ib., 6 Eq. Ca. 252 ; (s) As to covenants rtoiii'uiff icith and distinguish Haywood p. Bruns- thc land, see Co. Litt. 384 b, 38.5 a; -wickBuildingSociety, ii.,8Q. B.D. Slicp. Touch. 161 ; Spencer's case, 403 ; Austerberi-y v. Oldham (Cor- 5 Rep. 16 a; Mayor of Conglcton poration), ib., 29 Ch. Div. 750. V. Pattisou, 10 East, 130 ; Vyvian (/) Browning v. Wright, 2 Bos. v. Arthur, 1 Barn. & Cress. 410 ; & Pul. 22 ; and Sngd. Law Vend. Easterby v. Sampson, 6 Bing. 644 ; vol. ii. p. 450, 10th ed. Lambert v. Norris, 2 Mee. & W. CHAP. XVI. — OF DEEDS. 493 However, in the case of a mortgage, the mortgagor's covenants for title are not so limited, but are absolute. And this distinction between the covenants of a vendor and a mortgagor is preserved in the Conveyancing Act, 1881 (a), s. 7, by the effect of which, if the parties are expressed to convey respectively as beneficial owner and as mortgagor, the covenants for title are implied ; and the benefit of all such implied covenants runs with the land conveyed (r). 8. [Lastly, comes the co)ichision, which mentions the execution and date of the deed, or the time of its being given or executed ; but a deed is good, although it men- tion no date, or hath a false date ; or even an impossible date, as the 30th of February : provided the real day of its execution can be proved (.r) . Fourthly, the reading of the deed is necessary, wherever any one of the parties desires it ; and if it be not done on request, the deed is void as to him (//). If he can, he should read it himself ; if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void ; unless, indeed, it be so read by collusion on purpose to make it void, in which case it will be good (~) . Fifthly, it is necessary that the party, whose deed it is, should seal [a], and now in most cases should sign it also. The use of seals is extremely antient. We read of it among the Jews and Persians, in the earliest and most (m) 44 & 45 Vict. c. 41. Pigot's case, 11 Rep. 27. (i-) See Conveyancing Act, 1881, («) Meiely placing the finger on B. 7, sub-s. 6, ss. 10 — 12. a seal or wafer already attached, is [x) Co. Litt. 46 b ; Dyer, 28. As equivalent to sealing, and is the to the " date" of a deed, see Styles usual practice. (Shep. Touch. 57.) V. Wardle, 4 Bam. & Cress. 908. And there is indeed no necessity [y) Reading is not necessary un- that there should be either wax less the party executing the deed or wafer, if only an impression be requires it. (Rex v. Longman, 1 made on the parchment or paper, Nev. & M. 576.) with the intent of sealing it. (See (r) Mauser's case, 2 Rep. 3 ; The Queen v. Trustees of Covent Thoioughgood'.s case, 2 Rep. 9 ; Garden, 7 Q. B. 238, n.) 494 J3K. II. OF RIGHTS OF PROPERTY. — PT, 1. THINGS REAL. [sacred records of history (b) . And in the book of Jeremiah there is a very remarkable instance, not only of an attes- tation by seal, but also of the other usual formalities attending a Jewish purchase (c) . In the civil law, also, seals were the evidence of truth ; and were required, on the part of the witnesses at least, at the attestation of every testament ((/). But in the times of our Saxon ancestors, they were not much in use in England (f). For though Sir Edward Coke relies on an instance of King Edwin's making use of a seal about an hundred j^ears before the Conquest, yet it does not follow that this was the usage among the whole nation {/) ; and perhaps the charter he mentions may be of doubtful authority, from this very circumstance of being sealed ; since we are assured by all our antient historians, that sealing was not then in common use. The method of the Saxons was for such as could write, to subscribe their names ; and whether they could write or not, to afSx the sign of the cross ; which custom our illiterate vulgar do, for the most part, to this day keej) up, by signing a cross for their mark, when unable to write their names. And indeed this inability to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of one of his charters (g) . In like manner, and for the same unsm-mountable reason, the Normans, (a (i) 1 Kings, c. 21 ; Daniel, c. G ; {d) Inst. 2, 10, 2 and 3. Esther, c. 8. (c) See Palgrave, Eng. Com. (<■) "And I bought the field of ccxv. ' Hanameel, and weighed him the (/) Co. Litt. 7 a. ' money, even seventeen shekels of (y) " Troprid manii, pro ujnoran- ' silver. And I subscribed the t'ul literarum, signion sanctct cnicis ' evidence, and sealed it and took e.rpressi ct subscripsiy (Seld. Jan. ' Avitnesscs, and weighed him the Ang. 1. 1, §42.) And this(accord- ' money in the balances. So I ing to Procopius) the Emperor ' took the evidence of the pur- Justin in the East, and Thcodoric ' chase, both that which was King of the Goths in Italy, had ' sealed according to the law and before authorized by their example, ' custom, and that which was on account of their inability to • open." — Jer. c. .32. write. CHAP. XVI. — OF DEEDS. 40.J [brave but illiterate nation,) at their first settlement in France, used tlie practice of sealing only, without writing their names : which custom continued, when learning made its way among them, though the reason for doing it had ceased ; and hence the charter of Edward the Confessor to Westminster Abbey, — himseK being brought up in Normandy, — was witnessed only by his seal ; and is generally thought to be the oldest sealed charter of any authenticity in England (//). At the Conquest, the Norman lords brought over into this kingdom their own fashions ; and introduced waxen seals only, instead of the English method of writing their names, and signing with the sign of the cross (/). And in the reign of Edward the first, every freeman, and even such of the more sub- stantial villeins as were fit to be put upon juries, had their distinct particular seals (/.•). The impressions of these seals were sometimes a knight on horseback, sometimes other devices ; but coats of arms were not introduced into seals, nor indeed into any other use, till about the reign of Richard the first, who brought them from the crusade in the Holy Land ; where they were fii'st invented and painted on the shields of the knights, to distinguish the variety of persons of every Christian nation who resorted thither, and who could not, when clad in complete steel, be otherwise known or ascertained. This neglect of signing, and resting only upon the authenticity of seals, remained very long among us ; for it was held in all our books that sealing alone was suf- ficient to authenticate a deed ; and so the common form of attesting deeds, — " sealed and delivered," — continues to this day. The Statute of Frauds, however, (29 Car. II. e. 3,) revives the Saxon custom, and expressly directs the signing, in all grants of lands, and many other species of {h) Lamb. Areheion, 51. solitam, in c(eram imprcssam mutant, {i) "Xoniuoinic/tirot/rap/iorumeon- modtotup.e scribcndi Angliatin re- fertionem, cum crucibus anrcis, aHitsque jkiunt." — Ingiilph. sigiinciiVis Sf'crix, in Atiijl\i'( firmari (/.•) Stat. Exoii. II E<1av. 1. 496 BK. II. OF EIGHTS OF PROPERTY. — PT. I. THINGS REAL. [deeds : in whicli therefore signing seems to be now as necessary as sealing, tliougli it liath been sometimes held that the one includes the other (/) . Sixthly, it is essential to a deed that it be deUirrcd by the party himself or by his certain attorney ; which there- fore is also expressed in the attestation, " sealed and delivered ; " and, in practice, both sealing and delivering is held to be performed by placing the finger on the seal or wafer, at the same time uttering the words " I de- liver this as my act and deed" {m). A deed takes effect only from this tradition or delivery ; for if the date be false or impossible, the delivery ascertains the time of it. And if another person seals the deed, yet if the party delivers it himself, he thereby adopts the sealing [n). Moreover, a delivery may be either absolute, that is, to the party or grantee himself : or to a third person, to hold till some condition be performed on the part of the grantee : in which last case it is delivered not as a deed, but as an escrow; that is, as a scroll or writing, which is not to take effect as a deed till the condition be per- formed ; and then it is a deed to all intents and pur- poses (o). [l) 2 Bl. Cora. 306 ; seeLemayiie Richards v. Lewis, 11 C. B. lOlG. V. Stanley, 3 Lev. 1 ; Wanieford r. («) Perk. \ 130. Warneford, Stra. 764. It appears, (o) Co. Litt. 36 a. As to de- however, to be doubtful whether livery as an escrow, see Holford r. signing is required by 29 Car. 2, Parker, Hob. 246 ; Simpson v. c. 3, in the case of deeds. (See Sikes, 6 M. & Sel. 295 ; Bowker v. 1 Shep. Touch, by Preston, 56; Burdekin, 11 M. &W. 128; Miller- Aveline v. Whisson, 4 Man. k G. ship r. Brookes, 5 H. & N. 797 ; 801 ; Cooch v. Goodman, 2 Q. B. Kidner r. Keith, 15 C. B. (N. S.) 580, 597.) 35 ; "Watkins v. Nash, Law Rep., {m) As to deliverj', see Talbot v. 20 Eq. Ca. 262. An escrow, on Hodson, 7 Taunt. 251 ; Fletcher v. the performance of the condition, Fletcher, 4 Hare, 67 ; Grugeon r. takes effect as a deed from the date Gcrrard, 4 You. & Coll. 119; of the sealing and dehvery. (Froset Exton )'. Scott, 6 Sim. 31 ; Hall v. r. "Walsh, Bridg. Rep. 51; Graham Bainbridge, 12 Q. B. 699 ; Doc d. v. Graham, 1 Vcs. jun. 274.) CHAP. XVI. — OF DEEDS. 497 [Finally, a deed must be duly attested, that is, show that it was executed by the party in the presence of a witness or fcitnesses : though this is necessary, rather for preserv- ing the evidence, than for constituting the essence of the deed. Our modern deeds are in realit}' nothing more than an improvement or amplification of the brevia testata mentioned by the feudal writers ; Avhich w'ere wiitten memorandums introduced to perpetuate the tenor of the conveyance and investiture {p). With this view they registered in the deed the persons who attended as wit- nesses, which was formerly done without their signing their names (that not being always in their power), but they only heard the deed read ; and then the clerk or scribe added their names, in a sort of memorandum, thus : " hiis testibus Johanne Moore, Jacobo Smith, et aliis ad hanc rem convocatis^' (7). This, like all other solemn trans- actions, was originally done only coram paribus (r), and frequently when assembled in the court baron, hundred, or county court (s) ; which was then expressed in the attestation, teste comitutii, hundredo, ^c. (t). Afterwards the attestation of other witnesses was allowed ; the trial, in case of a dispute, being still reserved to the pares ; with whom the witnesses (if more than one) were associated and joined in the verdict [u) ; till that also was abrogated by the statute of York, 12 Edw. II. c. 2. And in this manner, with some such clause of hiis testibus, are all old deeds and charters, particularly Mag)ia CJiarta, witnessed. And in the time of Sir Edward Coke, creations of nobility were still witnessed in the same manner (.?). But in the sovereign's common charters, writs, or letters-patent, the style is now altered : for at present the letters-patent are attested thus : " teste meipso, witness ourself at West- {p) Feud. 1. 1, t. 4. by the sheriff (vide sup. p. 126). ('/) Co. Litt. 6 a. (0 Spelm. Gloss. 228 ; Madox, (/•) Feud. 1. 2, t. 32. Furinul. Nos. 21, 322, GGO. (•v) That is to say, the antient («) Co. Litt. 6 b. court of that name presided over (x) 2 In-;t. 77. vol.. I. K K 498 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [minster, &c.," a form wliicli was introduced by Eicliard the first, but not commonly used till about the beginning of the fifteenth centmy (//). Nor was the clause of //lis testibus entirely discontinued in royal grants till the reign of Henry the eighth (s) ; which was also the era of dis- continuing it in the deeds of subjects, — learning being then revived, and the faculty of writing more general. And therefore ever since that time the witnesses have usually subscribed their attestations, either at the bottom or on the back of the deed («). III. We are next to consider how a deed may be avoided, or rendered of no effect. And from what has been before laid down, it will follow that if there be wanting any of the essential requisites before mentioned : viz. 1, Proper parties, and a j^roper subject matter ; 2, AVriting on paper or parchment ; 3, Sufficient and legal words, properly disposed ; 4, Heading, (if desired) before the execution ; 5, Sealing, and by the Statute of Frauds, in most cases, signing also ; and, 6, Delivery — the instrument is a void deed ab iiiifio. It may also be avoided by matter ex posi facto : as, 1. By rasure, inter- lining, or other alteration in any material part ; imless indeed a memorandum thereof, properly attested, be made prior to the execution of the deed itself (6). 2. By breaking off or defacing the seal (c). 3. By delivering it up to be cancelled, that is, to have lines drawn over it in the form of lattice- work or canceUi ; though the phrase is now used figuratively for any manner of obliteration or (y) Madox, Formul. Ko. 515. Cooper, 13 Mec. & W. 343. If there Letter3-patcut for inventions are be an erasure or interlineation in a now merely sealed "with the seal of deed, it "svill be jiresumed, in the the Patent Office (46 & 47 Vict. absence of proof to the contrary, to c. 57, Sch. I., Form D). have been made at or before the (2) lb. Dissert, fol. 32. time of execution. (SeeTatham v. \a) 2 Inst. 78. Cattamore, 20 L. J., Q. B. 364.) [b) See Com. Dig-. Fait (F. 1) ; On the other hand, in a uill the Pigot's case, 1 1 Rep. 27 ; Matson v. presumption is the other way. (Re Booth, 5 M. & Sel. 223 ; Hall v. James, 1 Swab. & Trist. 238.) Chandless, 4 Biug. 123; Hiid.son v. (r) Matthewson's case, 5 Rep. 23. Revett, 5 Bing. 3G8 ; Davidson v. CHAP. XVT. — OF DEEDS. 499 [defacement {(/). 4. By the disagreement of those whose concurrence is necessary in order for the deed to stand : as of the husband, where a married woman is concerned ; or of an infant or person under duress, when those dis- abilities are removed ; and the like. Deeds are also in some cases avoided by objections relating to the cansidemtion on which they are founded, or to their want of consideration. The consideration of a deed may be either a good or a raluahle one. A good consideration is such as that of blood or of natural love and affection, where a man grants an estate to a near relation; — being founded on motives of generosity, prudence, and natural duty : a valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant {e).'] Deeds made without any consideration what- ever, and also those made for good, though not for valuable, consideration, are said to be voluntary ; and by force of the statute 27 Eliz. c. 4 (/), voluntary deeds of lands are void as against subsequent hond fide pur- chasers {(j) ; and (by 13 Eliz. c. 5) such deeds, whether of lands or of goods, are also void as against creditors, where the grantor is indebted to such creditors at the time, to the extent of insolvency (//). So any deed is liable to bo impeached if founded on immoral or illegal consideration, or if obtained by fraud (/). But in general, its efficacy {(I) As to the efEect of cancella- Lewis, 11 C. B. 1035. tion, see Via. Abr. Faits (X. 2, 3, (A) See Bac. Abr. Fraud (C) ; 4) ; 1 Shep. Touch. 70 ; Todd v. Glaister v. Herver, 8 Ves. 200 ; Emly, 11 Mee. & W. 4. Battersbee v. Farrington, 1 Swanst. {e) Twyne's case, 3 Rep. 83; 113; Holloway v. Millard, 1 Mod. 2 Rol. Abr. 779 ; Palm. 214. 419 ; Johnson v. Logard, Tui-n. & (/) Made perpetvial by 39 Eliz. Russ. 293 ; Tarleton v. Liddell, 20 0. 18, 8. 31. L. J., Q. B. 507 ; Spirett r.Willows, (i/) See Johnson v. Legard, 6 M. 3 D. J. & S. 303 ; Freeman v. & Sel. 60; Doe v. Manning, 9 East, Pope, Law Rep., 9 Eq. Ca. 206. 59; Doe v. Rolfe, 8 Ad. & El. 650; (*) See Collins v. Blanteru, 2 Metcalfe r. Pulvertoft, 1 Ves. & Wils. 341. Bea. 183 ; Doe (7. Richards r. K K 2 500 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. to bind tlie parties thereto to tlieir engagements, will not be prevented by the mere want of consideration. For in this respect deeds are distinguished from simple contracts, that is, contracts not under seal ; to the validity of which some consideration is essential : but a writing sealed and delivered as a deed, is supposed by the law to be made with due deliberation ; and to express fully and absolutely the intention of the party by whom it is executed : and he is therefore bound by its execution, whether he received a consideration for that which it comprises, or not (A*). We may add here, that whenever it appears that a deed was obtained by fraud, force, or other foul practice, or is proved to be an absolute forgery, such instrument is not only in- capable (as above noticed) of being enforced, but may be formally set aside by the judgment or decree of a coui't of judicature. This was antiently the province of the Court of Star Chamber, and it now belongs to the Chancery Division of the High Court of Justice {!) . With reference, moreover, to this subject, it is to be observed, that a deed may not only be avoided, but discharged ; for by a release a party may be discharged from the obligations even of a valid deed {m). {k) Bac. Read. Uses, p. 79; Bunn rights of creditors or subsequent V. Guy, 4 East, 200; Irons v. Small- lo)iafide purchasers. (See Irons v. piece, 2 Barn. & Aid. 554 ; Pratt v. Smallpiece, 2 Barn, k Aid. 554 ; Barker, 4 Russ. 507. According to Pratt r. Barker, 4 Russ. 507.) Blackstonc (vol. ii. p. 296), a deed {I) See 1 Shep. Touch. 70 ; 2 Bl. made without consideration is "as Com. 309 ; 36 & 37 Vict. c. 66, s. 34. " it were of no effect, for it is con- (;«) According to the rules of ' ' strued to enure or to be effectual law, the release to be effectual •'only to the use of the grantor must be itself by deed. (See West " himself." But this properly v. Blakeway, 2 Man. & Gr. 729.) applies only to conveyances ; and. But even prior to the Judicature even as to these, is too largely laid Act, 1873, not only could relief be down : for it is clear, that a con- had in equity, but an action on veyance, if intended to be by way the deed in a court of law might of mere gift, will operate accord- be barred by a release )iot by deed, ingly ; and be effectual for the under the provisions of 17 & 18 benefit of the grantee, except as Vict. c. 125, ss. 83 — 85. far as it may interfere with the CIIAr. XVI. — OF DEEDS. 501 lY. As to the general rules whieli oiir law has esta- blished relative to the construction of deeds, they are principally as follows : 1. A deed is to he expounded according to the inten- tion, where the intention is clear, rather than according to ^ . the precise words used (;;). For '^ verba intentioni dehent jr^,.. insenire ;" and " qui hwret in lifei'ci, luvrct in coriice." "^^', [Therefore by a grant of a remainder, a reversion may t:yihf «-• well pass and e converso (o). And upon a similar prin- '"' ^^'■ ciple, it is a maxim that " tnala grammatica non vitiat cliartam^'' neither false English nor bad Latin will destroy a deed (;;) ; which perhaps a classical critic may think to be no imnecessary caution.] 2. To explain an ambiguity in the language of a deed, no evidence dehors the deed itself is admissible [q). For in such cases, the doubt arises merely from the failure of the parties to express their own meaning in proper terms ; and if the law allowed the difficulty to be removed by extraneous evidence, it would render precision of less importance, and introduce inconvenient laxity into the structure of deeds in general (r). But here it is necessary to distinguish between patent and latent ambiguities (s). The first are, where the doubt arises upon the face of the instrument itself ; and to these the rule applies : the second are, where the doubt is introduced by the existence of a («) Chapman v. Dalton, Plowd. Cooper, 1 Q. B. 424 ; Grant v. 289 ; Hasker r. Sutton, 1 Bing. 500. Maddox, 15 Mee. & "W. 745.) (o) Hob. 27. And see 2 Saimd. (r) Or (as expressed by Lord by Wms. 96 b, n. (1). Bacon) it would "make all deeds [p) Osborn's case, 10 Rep. 133 ; hollow, and subject to averments." 2 Show. 334. (Bac. Max. Reg. 23.) [q) Bac. Max. Reg. 23. The same (s) As to patent and latent am- gcneral nile ajjplies to written biguity, see 4 Cru. Dig. 42.5; 6 agreements not under seal. (See Cru. Dig. 165; Bac. Max. Reg. 23 ; Higgins V. Senior, 8 Mee. «& "W. Sanderson v. Piper, 5 Bing. N. C. 844.) It is to be observed, how- 425 ; Doe d. Gains v. Rouse, 5 ever, that the terms of a contract C. B. 422 ; Queen v. Wooldale, 6 may, in some cases, be expounded Q. B. 549 ; RefFell v. Reffell, Law by reference to usage. (Spicer v. Rep., 1 P. & D. 139. 502 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. fact not apparent on the face of the deed ; and to these the rule has no application : the reason for which seems to be, that where the ambiguity itself is produced by circum- stances extraneous to the deed, its explanation must of necessity be sought for through the same medium (/). 3. The construction of a deed should be made upon the entire instrument, and so as to give effect, as far as possible, to every word that it contains {u). 4. [The construction should be favourable, and such .,., j,, that '^ res magis valeat quam pereat^\x). In connection __^ j,(^^j^ apparently with which rule, it is also laid down, that h^'u'^ , if the words will bear two senses, one agreeable to and tt^ another against law, that sense shall be preferred which is most agreeable thereto (//). As if tenant in tail grants a lease by the common law to have and to hold during life generally, it shall be construed to be a lease for his own life only, for that stands with the common law ; and not for the life of the lessee, which is beyond his common law power to grant.] 5. When any thing is granted, the means necessary for its enjoyment are also granted by implication ; for it is a "-i*^ maxim that "cuicunq?(e aUquidconceditur, conecditur et id sine ' <'-^ quo res ipsa esse non pohdt " (s). Thus, if a man conveys a ^••'^^ piece of ground in the midst of his estate, a right of way to J^, i {t) In the case of a devise (to (.r) SeePlowd. 156; Shop. Touch, ■which, as to all other written in- 82, 83 ; 2 Bl. Com. 380 ; 2 Sanud. .struments, the x'lile applies), a by Wms. 96, n. (1) ; E.oe r. Tran- " latent " ambiguity has been thus mar, WUles, 682 ; James v. Plant, illustrated, that if a man devise to in error, 4 Ad. & El. 766 ; Doe d. his son John, ha'ving two sons of Lewis v. Davics, 2 Mee. & W. 516. that name, evidence will be ad- (ij) Co. Litfc. 42 a. mitted to show which son the tes- (r) See Co. Litt. 56 a ; Shep. tator meant. See 5 Kep. 68 b ; 2 Touch. 89 ; Liford's case, 11 Rep. Atk. 372 ; 2 P. Wms. 135 ; Grant 52 ; 1 Saund. by Wms. 323 a, n. (6) ; V. Grant, Law Hep., 5 C. P. 727; LordDarcey i'. Askwith, Hob. 234; Sherratt v. Mountford, ib., 8 Ch. Earl of Cardigan v. Armitage, 2 App. 928 ; In re Wolvcrton Mort- Barn. & Cress. 211; Han-is v. gaged Estates, ib., 7 Ch. D. 197. Ryding, 5 Mee. & W. 60 ; Hinch- (u) 2 Bl. Com. 379. liffe v. Kinnoul, 2 Biug. N. C. 24. CHAP. XVI. — OF DEEDS. 503 come to it, over the land not conveyed, will also pass to the grantee. G. If there be two clauses in a deed so totally repugnant to each other that they cannot stand together, the first shall be received, and the latter rejected (a). 7. [Ambiguous words shall be taken most strongly against the grantor, and in favour of the grantee. " Verba fortius accipiuntur co)itra proferentem " if). For the prin- ciple of self-preservation will make men sufficiently care- ful not to prejudice their own interest, by the too extensive meaning of their words ; and hereby all manner of deceit in any grant is avoided, for men would always affect am- biguous and intricate expressions, if they were afterwards at liberty to put their own construction upon them. But, in general, this rule, being a rule of some strictness and rigour, is the last to be resorted to, and is never to be relied upon but where all other rules of exposition fail ; and it does not apply to a grant by the Crown, at the suit of the grantee (e).] (a) 2 Bl. Com. 381. See Shep. v. Pedley, ubi sup.) Touch. 88 ; Hard. 94 ; Doe d. Lei- (J) See Co. Litt. 36 a ; Bao. Max. cester, 2 Taunt. 113; Doe t?. Spencer Reg. 3 ; 2 Bl. Com. 380; Doe v. V. Pedley, 1 Mee. & W. 677. The Edwards, 1 Mee. & W. 556; BuUen rule, however, in such case, when v. Denning-, o Barn. & Cress. 842. arising on a dense, seems to be to {c) See Bac. Max. Reg. 3 ; and consider the latter clause as the see generally Elphiiistoue, Norton, one to be followed. (See Co. Litt. & Clark on the luterpretatiou of 1126 ; Plowd. 541 ; Doe d. Spencer Deeds (18S5). 504 BK. II. OF KIGIITS OF PROPERTY. — PT. 1. THINGS REAL. CHAPTEE XYII. OF ORDINARY CONYEYAXGES — AND FIRST, OF THOSE AT THE COMMON LAW. The branch of law wliicli relates to " conveyances," or the instruments of voluntary alienation, is properly of a practical character, and seems in the nature of things capable of being regulated with great simplicity. It in- volves, however, in the English jurisprudence, considera- tions of a very complex and subtle kind, and has been elaborated into a highly artificial system, known under the denomination of conveyancing, — a system which maintains its own separate body of practitioners and professors, and constitutes a science in itself {((). In the earlier times, and indeed down to so late a period as the reign of Henry the eighth, the chief distinction between the different modes of conveyance, as regards lands of free tenure, to which alone om' attention is at present directed, was this, that they were either by matter in jjais, or by matter of record (b) ; the first, which were the ordinary class, comprehending such as were transacted between two or more persons in paii^, in tlie country — that is, according to the old common law, upon the very spot to be transferred ; tlie second, such as were effected by an assurance in the superior courts of jus- tice (c). But in and subsequent to the reign just men- (ff) See 44 Geo. 3, c. 98, s. 14. {h) As to records, vide sup. pp. As to conveyancers, see 23 & 24 53, 483, n. [d) ; and see the same Vict. c. 127, s. 34. note, as to matter in pain. (c) 2 Bl. Com. 294. CHAP. X^ II. — OF CONVEYANCES AT COMMON LAW. 505 tioned, various acts of parliament have been passed, the effect of which lias been to introduce a new class of con- veyances ; distinguished from the more antient ones, as deriving their force and authority from these statutes, and not from immemorial custom, or the common law of the realm. And it will be found convenient, in discussing the general subject of conveyances, to keep the latter distinc- tion, as well as the former, prominently in view. We shall therefore divide the conveyances of land of freehold tenure, first, into conveyances of the ordinarij kind, being in eifect the same with those antiently described as in pais : and secondly, into conveyances by matter of record ; which, as compared with the other, are of a rarer or more special description. The first of these we shall again sub- divide into two classes, first, conveyances at common laic ; secondly, convoj'ances hij statute tan- : and the conveyances at common law will constitute the subject of the present chapter. I. A Feoffment. In the course of our past disquisi- tion, we have already had frequent occasion to refer to this method of conveyance, because it was for ages the only method in ordinary use by which our ancestors were wont to convey the freehold of land in possession; and the doctrines relating to it are by consequence very closely connected with the fundamental principles of the law of real property, and essential to their illustration. And for the same reason, we shall proceed now to give a somewhat fuller account of its nature and properties, than its actual importance, in practice, would seem to justify. For it is necessary here to apprize the reader, that this conveyance has now fallen, in great measure, into disuse, haviug been almost entirely supplanted by some of that class which are founded on the statute law of the realm. A feoffment, then, is derived from the verb to enfeoff, feojf'are or infeudare, to give one a feud, and is a method of alienation applicable to the pm-pose above described 506 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. viz. that of conveying an estate of freehold in possession in a corporeal hereditament ; and to that purpose only (e) . [This conveyance is plainly derived from — or is indeed itself the very mode of — the antient feudal donation ; for though it may be performed by the word " enfeoff" or " grant," yet the aptest word of feoffment is " f/o," give, or " dcdi," (jircn (/). And it is still directed and governed by the same feudal rules ; insomuch that the principal rule relating to the extent and effect of the feudal grant, '^^'^'^'^j " tenor est qui legem clat feudo" is, in other words, become ^^ '»^^* the maxim of our law with relation to feoffments, " modus "' ■ . ,, lege77i dat donationi" (g). And therefore, as in pure feudal ° — donations, the lord, from whom the feud moved, must ^^^'^ expressly limit and declare the continuance or quantity of estate which he meant to confer, " ne quis jjIus donasse pnesumatu)', quam in donatione eapresserit ; " so, if one grants by feoffment lands or tenements to another, and limits or exjoresses no estate, the grantee (due ceremonies of law being performed) hath barely an estate for life iji). For as the personal abilities of the feoffee were originally presumed to be the immediate or principal inducement to the feoffment, the feoffee's estate ought to be confined to his person, and subsist only for his life ; unless the feoffor, by express provision in the creation and constitu- tion of the estate, hath given it a longer continuance. It has therefore been the practice in all feoffments, from time immemorial, to limit, by express words, the nature of the estate intended to be conveyed. But by the mere words of the donation the feoffment (e) A reversion or I'emamder, (Co. Litt. 48 b.) But where his however, and the particular estate consent is not given, the convey- on which it is expectant, may be ance must be by grant, and the created by the same feoffment (vide livery is void. (Litt. s. 567 ; Co. sup. p. 322.) And so a freehold re- Litt. ubi sup.) version already created, if expectant (/) Co. Litt. 9 a; vide sup. p. on a particular estate for years, may 1 76. be transferred by feoffment, with [g) Wright's Ten. 21. the consent of the particular tenant, (A) Co. Litt. 12 a. CHAP. XVII. — OF CONXEYANCES AT COMMON LAW, 507 [is by no means perfected ; there remains a very material ceremony to be performed, called Uccry of seisiji, without which the transaction cannot operate as a feoffment (/). This livery of seisin is no other than the pm-e feudal in- vestitiu'e or delivery of corporal possession of the land or tenement, which was held absolutely necessary to complete the donation (/i). ^' JYamfeudum sine inrestiturd nitllo modo coiisfitui potiiit " (/) ; and an estate was then only perfect when, as the author of Fleta expresses it in our law, ^'jit juris et seisince conjuiwfio " {/ti). Investitures, in their original rise, were probably in- tended to demonstrate in conquered countries the actual possession of the lord : and that he did not grant a bare litigious right, which the soldier was ill qualified to pro- secute, but a peaceable and firm possession. And at a time when writing was seldom practised, a mere oral gift, at a distance from the spot that was given, was not likely to be either long or accm-ately retained in the memory of bystanders, who were very little interested in the grant. Afterwards investitures were retained as a public and notorious act, that the country might take notice of and testify the transfer of the estate ; and that such as claimed title by other means, might know against whom to bring their actions. In all well-governed nations, some notoriety of this kind has been ever held requisite, in order to acquire and ascertain the property of lands. In the Boman law, plenum dominium was not said to subsist, unless where a man had both the rigid and the eorjwral 2)Ossessio)i ; which possession could not be acquired without both an actual intention to possess, and an actual seisin or entry into the premises, or part of them in the name of the whole {)i), {%) Litt. s. 70. corpoTO et ammo ; neque per se corpore, {];) Vide sup. p. 177. ncque per se animo. Non autem ifa (/) Wright's Ten. 37. accipiendum est, ut qui fundum pos- {m) Li. 3, c. 15, s. 5. sidire relit, omiies glehas circumam- («) " Xam apisciniur possessionem bulct; sed siifficit quamlibet partem 'Y\^\.J'.C- 508 13K. II. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. [And even in ecclesiastical promotions where the freehold passes to the person promoted, corporal possession is required to this day to vest the property completely in the new proprietor ; who, according to the distinction of the canonists, acquires the jus ad rem, or inchoate and imperfect right, by nomination and institution ; but not the jus in re, or complete and full right, unless by corporal possession (o). Therefore in ecclesiastical dignities, pos- session is given by "instalment;" in rectories and vicar- ages, by " induction ;" without which no temporal rights accrue to the minister, though every ecclesiastical power is vested in him by institution. So also even in descents of lands by our law, which are cast on the heir by act of the law itself, the heir, as we have seen, has not plenum domi- nium, or full and complete ownership, till he has made an actual corporal entry into the lands (|^). Yet the corporal tradition of lands being sometimes inconvenient, a symbolical delivery of possession was in many cases antiently allowed, by transferring something near at hand, in the presence of credible witnesses ; which, by agreement, should serve to represent the very thing designed to be conveyed; and an occupancy of this sign or symbol was permitted as equivalent to occupancy of the land itself. As among the Jews, we find the evidence of a purchase thus defined in the book of Euth : " Now this " was the manner in former time in Israel concerning " redeeming and concerning changing, for to confirm all *' things ; a man plucked off his shoe, and gave it to his "neighbour: and this was a testimony in Israel" (^). So among the autient Goths and Swedes, contracts for the ejus fundiintroirey — Ff. 41, 2, 3. — pass. So under the rule that for- And again: " traditionibiis doininia merly required a title by descent rerum, non nudls pact is, tranxferun- to be traced from the person last tur." — Cod. 2, 3, 20. seised of the inheritance, the heir (o) Decretal. 1. 3, t. 4, c. 40. was incapable, before entry, of {p) Vide sup. p. 430, whore it is being made the root of descent, noticed that an heir before entry vide sup. p. 396. cannot maintain an action of tres- {q) Ruth, ch. iv. v. 7. CHAP. XVII. —OF COXVEYAXCES AT COMMOX LAW. OOO [sale of lands were made in the presence of witnesses, who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give possession ; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of the wit- nesses {)'). Thus, too, with our Saxon ancestors, the de- livery of a turf was a necessary solemnity to establish the convej'ance of lands (.s-).] And to this day, the conve}^- ance of our copyhold estates is usually made by the seller's delivery of a rod or verge to the lord or his steward, and then by the re- delivery of the same to the purchaser. Conveyances in. u-ritinr/ were the last and most refined improvement. For the transaction, when depending on the remembrance and testimony of witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof. Besides, the new occasions and neces- sities introduced by the advancement of commerce, required means to be devised of charging and encumbering estates, without an absolute sale thereof ; and of making them liable to a multitude of conditions and minute designa- tions. "Writings were consequently introduced, in order to specify and perpetuate the peculiar pm-poses of the party who conveyed : and now by the Statute of Frauds (29 Car. II. c. 3), s. 1, no estate created by livery of seisin only, and not in writing signed by the party, or his agent by writing lawfully authorized, shall be of any force except to constitute an estate at will. Since this statute, there- fore, a feoffment has not been effectual unless evidenced by writing ; though the transaction has been nevertheless considered as deriving its legal force from the livery, and not from the written instrument (/). And now by 8 & 9 Yict. c. 106, s. 5, a feoffment made after 1st October, 1845, other than a feoffment made under a custom by an infant, shall be void at law unless evidenced h// deed (i<). {)■) StiernLook, de Jure Sueon. (f) Co. Litt. 48 a ; et vide sup. 1. 2, c. 4. p. 4 94, n. {<■). (.s) Hiekes, Di.ssert. Epistular. 85. («) As to feoffment Ly an infant, 510 BK. IT, OF RIGHTS OF PROPERTY, — PT. T, THINGS REAL. [Livery of seisin is either " in deed " or "in law." Livery in deed is thus performed. The feoffor, lessor, or his attorney for the purpose, together with the feoffee, lessee, or his attorney (for this may as effectually he done by deputy or attorney as by the principals themselves in person), come to the land, or to the house; and there, in the presence of witnesses, declare the contents of the feoff- ment or lease on which livery is to be made. And then the feoffor, if it be of land, doth deliver to the feoffee (all other persons being out of the ground) a clod or turf, or a twig or bough there growing, with words to this effect : " I deliver these to you in the name of seisin of all the lands and tenements contained in this deed." But if it be of a house, the feoffor must take the ring or latch of the door (the house being quite empty of people), and deliver it to the feoffee in the same form : and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others (,r) . And in all these cases it is prudent and usual to indorse the livery of seisin on the back of the deed, specifying the manner, place, and time of makiug it, together with the names of the witnesses (//). And thus much for livery in deed. Livery in laic is where the same is not made on the land, but in sight of it only ; the feoffor saying to the feoffee, " I give you yonder land, enter and take posses- sion." Here, if the feoffee enters during the life of the feoffor, it is a good livery, but not otherwise.] By the antient law, indeed, if he dared not enter through fear of his life or bodily harm, his continual claim — made yearly in gavelkind, vide sup. p. 213. A as to the cases in which more than deed of feoffment is also called a one livery will be required, in con- charter of feoffment. (Co. Lift. 9 b, sequence of the lands lying in dif- 36 a, n. (1).) ferent counties or the like. [x] Co. Litt. 48 a; West. Symb. (y) As to the manner of making 251. Further information will be livery of seisin, see also Roe v. found in Blackstono (vol. ii. p. 315) Rashleigh, 3 Barn. & Aid. 156; on this subject ; and particularly Doe \\ Taylor, 2 Nev. & M. 508. CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. oll in flue form — would suffice ^vdthout an entiy (z). But this was altered by 3 & 4 Will. IV. c. 27, s. 11, which provides that no right of entry or action shall in future be preserved by continual claim. Livery in law cannot be given or received by attorney, but only by the parties themselves («). By feoffment, not only a fee simple may be conveyed, but an estate tail or an estate for life ; for these (as we have seen) are all estates of freehold. But the term " feoffment " is considered as importing more properly a conveyance of the fee simple ; while the conveyance of an estate tail is more technically called a gift ; that of an estate for life, a demise or lease {b). The last point (already incidentally noticed), that we shall mention with respect to this conveyance, is, that up to a recent period it was distinguished from others by the following property ; that when made (-without fraud) by a person in actual possession, it would always have the effect of passing to the feoffee a freehold, either by right or by wrong (c). For it was a delivery of the actual seisin, that is, of the actual possession, as for an estate of freehold, in fee, in tail, or for life ; so that if the feoffor was himself lawfully seised to the full extent of the estate that he con- veyed, a freehold as of right would pass ; and even if he was not lawfully seised, or not lawfully seised to that extent, a freehold would still pass, though a freehold by u-rong {(t). And when by such means, or by any other, {z) Litt. s. 421 ; Co. Litt. 48 b; (d) Litt. ss. 599, 611 ; Co. Litt. 2 Inst. 483. 367 a ; rermor's case, 3 Rep. 77 ; (a) Co. Litt. 52 b. Taylor v. Horde, 1 Burr. 60 ; Co. {/>) Litt. s. 59; Co. Litt. 9 a. Litt. byButl. 330 b, n. (1); 2 Sand. Blackstone (vol. ii. p. 310) eniime- ITg. pp. 18, 20; Doef . Hall, 2 Dow. rates "gift" as a separate convey- & E,y. 38 ; Doe v. Lynes, 3 Bam. & ance ; but, as bo himself remarks, Cress. 388 ; Doe r. Taylor, 5 Barn, "it differs in nothing from a feoff- & Adol. 575. The doctrine in the ment, but in the nature of the estate text, though no longer in force, passing by it." yet deserves attention from its ten- (<■) Vide STip. pp. 465 ct seq. dency to illustrate the principles of 512 1?K. II. OF IIIGHTS OF PROPERTY. — PT. I. THINGS REAL. a wrongful or tortious freehold was created, the effect was, that the person lawfully entitled to the freehold in pos- session was disseised; and if there were any persons in reversion or remainder, such reversion or remainder was displaced or divested, so that each of these parties ceased to retain (strictly speaking) an estede ; though each never- theless possessed a rigid of entry ; that is, was entitled, in his proper turn, to enter, and eject the wrong-doer, and thus to revest his own estate {e). But all this doctrine, so far as regards the operation of a feoffment hij wrong, — long diminished in practical importance by the growing rarity of feoffments, and by other causes, and latterly involved in some degree of obscurity, — is now abolished by the provision of 8 & 9 Yict. c. 106, s. 4, to which we have had frequent occasion already to refer, that " a feoffment made after the 1st October, 1845, shall not have any tortious operation." II. A Grrant is effected by mere deed, without livery of seisin, containing words expressive of the intention to convey. The appropriate words are " dedi et conecssi^^ " have given and granted," but they may be supplied by others of the like import (/'). This was the regular the law of real property. It is to ance, which formerly depi-ived the be observed, that, iudepcndcntly of reversioner or remaiiider-man (as a feoffment, a tortious estate may well as the issue in tail) even of be created by ff;/]/ act that produces his r'ujht of entry, and left him a disseisin, or any wrono^ful ouster nothing but a right of action. (Co. of the freehold. (Co. Litt. 2 a.) Litt. 327 b.) But by 3 & 4 Will. 4, The nature of these wrongful acts c. 27, s. 39, a discontinuance is no will be explained in that part of longer to be attended with this the work which treats of civil in- effect (see also 8 & 9 Vict. c. 106, juries, vide post, bk. V. c. vm. s. 4). A discontinuance, besides, (<■) Co. Litt. 251 a, b, 327 b ; 1 involved (as we have seen) no/or- Saund. by Wms. 319, n. (1) ; Focus feiture of the particular estate; V. Salisbury, Hard. 401, 402. In though it was otherwise with a the particular case, however, of a wrongful feoffment by tenant for wrongful feoffment by tenant in life or years. Vide sup. p. 465. tail in possession, the effect was (/) 2 Sand. Us. 47. The word different; for it was a discoiifi/nt- "give" or "grant" is by 8 & 9 CHAP. XVIT. — OF CONVEYAM'ES AT COMMON LAW. 013 method, by the common law, of transferring estates in expectancy (that is, reversions and remainders) in corporeal hereditaments, as feoffment was of transferring a freehold estate in possession {g). And tlie same mode, viz. grant, was appropriate also to the transfer (for whatever estate) of hereditaments purely incorporeal — such as advowsons, commons, rents, and the like, — of which we are to treat hereafter (//). For it obviously results from the nature both of things incorporeal, and of corporeal things in expectancy, that no livery can be made of them : not of the first, because they are not capable of possession ; nor of the last, because the possession is in the particular tenant, and not in the grantor. For which reason they were formerly both said to lie in grant ; while corporeal hereditaments in possession were said to lie in liver// (/). And as the latter passed by force of the livery of seisin, so the former passed by force of the deed. But the con- veyance by grant is now made applicable to all kinds of hereditaments ; for by 8 & 9 Yict. c. 106, s. 2, it is enacted, that, " after the 1st October, 1845, all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery" {J) ; and, indeed, the use of the word grant is no longer necessary in any conveyance, the word coiivei/ being now made a sufficient equivalent in all cases (/.■). It is also to be remarked under this head, that by the antieut law, besides the grant itself, an additional ceremony was required where a reversion or remainder was the subject of transfer; viz. the attornment of the tenant of the particular estate, to the grantee (/). But by the Vict. c. 106, s. 4, to imply no cove- {J) It will be seen hereafter nant as to title or otherwise ; vide (post, p. 542) that the effect of Bup. p. 492. this enactment was to make n^. grant {g) Co. Litt. 172 a, 332 a, b. the usual method of passing real (/() As to incorporeal heredita- estate inter vivos, under the modem ments, vide sup. p. 171; post, system of conveyancing. c. xxiii. (/.•) 44 & 45 Vict. c. 41, s. 49. (i) 2 Ecp. 31 b; Doc v. Cole, 7 (/) Litt. ss. 568, 569; Doe v. Barn. & Cress. 243. Finch, 4 Barn. & Adol. 303. \()L. I. L L 514 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. statute 4 & 5 Anne, c. 3, tliis requisite is now dispensed with (tn). III. A Lease (or " demise ") is a conveyance by whicli a man grants lands or tenements (usually with the reser- vation of a rent) to another, for Hfe, for years, or at will {>i), such estate being short of the lessor's own interest therein (o) ; for if it be to the full extent of that interest, it is then properly an "assignment," and no lease (7;). A lease of land for life, being a freehold interest, could not be constituted by the common law without livery of seisin ; and therefore the lease could, in such case, be only by way of feoffment (q) : but if the estate were for years, or at will, no livery was required (;■) ; nor was a deed, or even any writing, formerly essential to the efficacy of a demise of land for whatever period (s) . The law, however, on this subject has been altered ; for by the Statute of Frauds, (29 Car. II. c. 3,) ss. 1, 2, all leases whatever, with the exception of those not exceeding three years and with a rent of not less than two-thirds of the improved annual value, must have been put into ■s\Titing and signed by the lessor or liis agent lawfully authorized in writing. And, (>«) See Doe d. Agar v. Erowii, "Years;" "where" (says Black- 2 El. & BI. 331. As to aftomment stone, vol. ii. p. 323, in noiis), "the generally, -vide sup. pp. 469, 471. " subject is treated in a perspicuous («) Litt. s. 58. A lease maybe " and masterly manner ; being sup - either of land in the possession of ' ' posed to be extracted from a the lessor, or of land -whereof he "manuscript of Sir Geoffrey Gil- has the reversion or remainder; for " bert." As to leases under powers of the latter he may make a lease defectively executed, see 12 & 13 for years JM /?/<«/■(?, to take effect in Vict. cc. 26, 110; 13 & 14 Viet, possession on the determination of c. 17. the prior particular estate ; and he {p) 2 Bl. Com. 217. may also grant the rever.sion for (q) Litt. s. 59. a term short of his own interest (r) Ibid. therein ; but such grant must be (s) But a lease of an incorporeal by deed. See Co. Litt. 47 a; Bac. hereditament coidd not be made at Abr. Leases (N.). common law without deed. (Co. (o) As to the nature of leases Litt. 49 ; Bird r. Higginson, G Ad. generally, sec Co. Lilt. 43 b ; and & El. 824 ; Eex v. Marquis of Bac. Abr "Leases and Terms of Salisbury, 8 Ad. & El. 716.) CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. bl-J hy tlie statute of 8 & 9 Yict. c. lOG, (sect. 3,) it lias been now further provided, that a lease, required by law to be in writing, of any tenements or hereditaments, made after 1st October, 1845, shall be void at law unless made b// deed {t) : though, on the other hand, — by the effect of the same statute, (sect. 2,) providing that all corporeal here- ditaments shall, as regards the conveyance of the imme- diate freehold thereof, be deemed to lie in grant as well as in livery — a lease even for life may now be effected by grant, Avithout livery of seisin. It results, however, from the former observations with respect to estates for years, that a lease of land for years will not vest in the lessee a complete estate for all purposes, until he has made entry on the land demised ; and that in the mean time he takes nothing beyond an interesse termini [u). When the lease is for years only, the estate may be granted to take effect in possession either immediately, or at some future time ; and, in the latter case, the lessee has of course no right to enter until that future time has arrived (r). But it is important carefully to distinguish these leases in futuro from mere agreements to let ; for an intending lessor may, without using such words as actually to divest himself of any interest present or future, simply engage to grant a lease at a future period ; and as no interest in the mean time passes, this will be a mere agreement, and no lease {x). And with respect to such {t) It may be remarked that a Law Rep., 2 C. P. 376 ; Martin v. parol instrument demising for more Smith, ib., 9 Exch. 50.) In Hand v. than three years, though void as a Hall, ib., 2 Ex. D. 355, a lease not lease (under the 8 & 9 Vict. c. 106), under seal was made for one year, and therefore passing no interest, with an option to the tenant, at the may be good as an agreement, and end of that term, to take on the if broken may be decreed to be premises for three years and a half specifically performed (see Parker more. This lease was held valid V. Taswell, 27 Law J., Ch. 812); by the Court of Appeal, or be ground for an action. (See [n) Vide suj). p. 287. Bond V. Rosling, 1 B. & S., Q. B. (r) Vide sup. p. 321. 371; Tidey v. MoUett, 16 C. B., (.c) See Rollason r. Leon, 7 H. & N. S. 298 ; Strauks r. St. John, N. 73. ], .,2 516 IHv. II. OF RIGHTS OF PROPERTY. — PT. I, THINGS REAL. agreements, it is material to remark, that by 29 Car. IT. c. -^ s. 4, they are required, even where the term agreed for is less than three years, to be in writing (//). [The usual words of operation in a lease are " demise, "grant, and to farm let," demisi conccssi ct ad Jirmam fradidi (~). For fann or /eor))/e is an old Saxon word signifying provisions {a) ; and it came to be used instead of rent or render, because antiently the greater part of rents were reserved in provisions — in corn, in poultry, and the like, — till the use of money became more fre- quent : so that a farmer, firmarins, was one who held his lands upon payment of a rent or feorme ; though at present, by a gradual departure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent.] Neither the words " to farm let," however, nor any of the others above speci- fied, are necessary to effect a demise ; any expressions sufficiently indicating the intention of one of the parties to divest himself of the possession, for a determinate period, in favour of the other, being clearly sufficient to constitute a lease (h). "With reference to the covenants contained in a lease, we may here observe, that it results from what has been before stated as to such as run with the land (c), that the lessee is liable not only to the ori- ginal landlord or reversioner, but in case of the grant of the reversion, then to the grantee also, for the future per- formance of all such covenants contained in the lease, on the part of the lessee ; and is entitled, on the other hand, to enforce against the grantee, as well as the original landlord, the future performance of all such as are con- tained in it en the part of the lessor {d). As to the cove- nants in a lease, it is also material to notice, that, to {ij) See lumanr. Stamp, iStarkic, v. Nugent, 5 T. R. 165, u. ; Poole N. P. C. 12 ; Edge v. Strafford, 1 v. Bentloy, 13 East, 168. Tyrw. 293. (r) Vide sup. p. 492. (;) Co. Litt. 45 b. [d] See Thimsby v. Plaut, 1 («) Spolm. Gloss. 229. Saund. by Wms. 230 b ; Wright \b) Bac. Abr. Leases, &c. ; Doe r. Purrouglics, 3 C. B. 344. V. A.shhunur, 5 T. R. 1G3 ; Barry CHAP, XVII. — OF CONVEYANCES AT COMMON I-AW. 517 improve the landlord's secuiuty, the lease usually contains a proviso that, on breach of any of the covenants by the tenant, the landlord shall be at liberty to re-enter, and resume and hold possession of the premises as if no lease of them had ever been made. Such a proviso constitutes, in case of a breach of covenant by the tenant, a most advantageous addition to the landlord's remedies, which would otherwise be confined, in some cases, to a right of action for damages on the covenant {e). It may be here observed that where lands are let for agricultural purposes, the custom of the country has, in many parts of England, secured to the tenants of such holdings an adequate compensation, at the determination of the tenancy, from the landlord for what has been expended on the laud demised during the later portion of the tenancy, in the way of seed, manure, and labour ( /). Such compen- sation, under the uame of tenant right, has been usually adjusted on a certain recognized scale by valuers selected by the parties; but in the year 1875, an endeavour was made to place these matters on a more satisfactory basis than local and occasionally discrepant customs, by direct legislation ; and, at the same time, to include within the pro- visions of the act, in favour of the tenant, certain imj)rove- meuts not usually allowed for, but in respect of which it was nevertheless felt right that he should have a proper return from his landlord — and moreover to make obligatory in farm leases a longer notice to quit than is necessary and sufficient by the general law of landlord and tenant as described in a former part of this volume. With these objects was passed the Agricultural Holdings Act, 1875 (38 & 39 Vict. c. 02), which act has since been repealed and re-enacted (c) It may be noticed, with re- incoming tenant, is, iu the absence gard to the non-payment of rent, of a special agreement binding the that the Landlord, in addition to lattei-, liable to the outgoing tenant his remedy by re-entry and his for tenant right, and a custom to action on the covenant, has also a the contrarj- isbad. (SeeBradbnm right of distress, as to which vide v. Foley, Law Rep., 3 C. P. D. post, bk. V. c. I. 129 ; Mnnsell v. Norton, ib., 22 Ch. (/) The landlord, and not the Div. 7G9.) 518 15K. II. OF RIGH'L'S OF PROPERTY. — PT. I. THINGS REAL. •with, certain amendments bj tlie Agricultural Holdings Act, 1883 (g) ; and tlie provisions of the last-mentioned statute (which came into force the first day of January, 1884) are to the following effect : — In the first place, it is to be noticed that its enactments only apply to cases where the holding is either wholly agricultural or wholly pastoral, or partly one and partly the other (A), and do not apply to any holding which either in whole or in part is cultivated as a market garden, or which is let to the tenant during his continuance in office under the land- lord {/i). Secondly, it is to be noticed that any agreement between landlord and tenant which would have the effect of excluding the act is void (?) . Thirdly, with regard to all lettings to which it applies, the act enables the tenant, on the determination of the tenancy, to claim from his landlord compensation in resj)ect of any improvement he has executed on his holding which shall come within either of the three classes specified in the first schedule to the act (y), accorch'ng to an amount agreed upon between the parties ; or, in case of dispute, settled, according to certain rules laid down in the act in reference to the par- ticular class to which the improvement claimed belongs (A-), {ff) 46 & 47 Vict. c. 61. reclaiming of waste land, wai-ping (//) Sect. 54. of land, and embankment and (i) Sect. 55. sluices against floods. Class II. {J) Sect. 1. Class I. (for making (iri respect of whicli notice to land- ■which the landlord's previous con- lord is required) includes drainage sent must have been obtained) in- only. Class. III. (in respect of eludes erection and enlargement of which notice to landlord is 9iot buildings, formation of silos, laying required) includes application to down pemiauent pasture, making land of purchased manure, arti- and planting osier beds, making iicial or otherwise, and consump- water meadows, or works of irriga- tion by cattle, sheep or pigs, of tion, making gardens, making or cake or other feeding stuff not pro- improving roads or bridges, making duced on the holding ; also boning or improving water courses, ponds, of land with imdissolved bones, wells, i-eservoirs, or of works for the chalking of laud, clay-burning, application or supply of water for claying of land, liming of lanH, agricultural or domestic purposes, and marhng of land, making fences, planting of hops, {k) Sects. 6 — 22. or of orchards or fruit bushes, CHAP. XVII. — OF CONVFA'ANOES AT COMMON LAW. 519 by referees and an umpire (/), from whose award an appeal lies to the judge of the county court of the district in which the holding or the larger portion of it is situate ; and should any question of law arise there is an ultimate appeal, by way of special case, or by motion, to the High Court of Justice (»i). The act also, among many others which our limits forbid us to sj)ecify, contains the following provisions: — 1. In cases to which it applies, where a half-year's notice ex- piring with a year of the tenancy is by law necessary and sufficient for the determination of a tenancy from year to year, a 7/ear's notice so expiring shall by virtue of the act be necessary and sufficient for the same — except only in the case of the tenant being adjudged a bankrupt or filing a petition for composition or arrangement with his cre- ditors (/?). 2. A tenant shall not be entitled to claim compensation under the act and also under any custom of the country or contract, in respect of the same work or thing ; but when he is not entitled to compensation under the act, he retains his right to compensation under any custom or contract, or under any other act of parliament (o) . o. A tenant shall not (save as expressly excepted by the act {p) ) be entitled to compensation under the act in respect of improvements (other than manures) begun by him, if a tenant from year to year, within one year before quitting or any time after final notice to quit given or received, and, if a tenant for years, within one year before the expiration of his lease {])). {I) If the parties agree there Barlow v. Teal, 15 Q. B. D. 403. may be a single referee appointed (o) Sect. 57. And see also sects, by them jointly. If there Jire two 2 and 62 as to improvements exe- referees they may themselves ap- cuted before the commencement point an umpire, or he must in of the act, and compensation for some cases be appointed by the which is recoverable or not under county coui't or by the Land Com- the Agricultural Holdings Act, missioners. (Sects. 9, 10, 11.) 1875, or otherwise by custom or (w) Sect. 23. contract. («} Sect. 33. (See Wilkinson v. {p) Sect. 59. Calvert, Law Eep., 3 C. P. D. 360 ; 520 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THI^'G.S REAL. IV. [An Exchange is a mutual grant of equal in- terests, the one in consideration of the other. The word " exchange " is so individually requisite and appropriated hy law to this case, that it cannot be supplied by any other word or expressed by any circumlocution (q) . The estates exchanged must be equal in quantity, not of irilite (for that is immaterial), but of interest ; — as fee simple for fee simple, a lease for years for another lease for years, and the like(s). And no livery, even in exchanges of free- hold, was, at the common law, necessary to perfect the conveyance {t) ; for each party stood in the place of the other, and occupied his right, and each of them had already had corporal possession of his own land.] On the other hand, by the Statute of Frauds, (29 Car. II. c. 3,) ss. 1, 3, an exchange was required to be in writing ; and by the statute 8 & 9 Yict. c. 106, s. 3, it must now be by deed, in every case except that of an exchange of copyhold. [More- over, by the common law, entry must have been made on both sides ; for if either party died before entry, the exchange was void for want of sufficient notoriety {u). And it Avas held, that if two parsons, by consent of patron and ordinary, exchanged their preferments, and the one was presented, instituted, and inducted, and the other was presented and instituted, but died before induction, — the former should not keep his new benefice, because the exchange was not completed, and therefore he must return back to his own {x). It was also held, that if after an ex- change of lands or other hereditaments, either party was evicted of those which were taken by him in exchange, through defect of the other's title, he should return back to the possession of his own, by virtue of the implied warranty {q) Co. Litt. 50, 51 ; Eton Col- years would be good, see Perk, sect lege V. Bishop of Winchester, 3 275 ; 2 Shep. Touch. 296. Wils. 468. See the provision, 8 & 9 {t) Litt. s. 62. Vict. c. 100, s. 4, mentioned in the (?<) Co. Litt. 51b. next page. (;r) Perk. s. 288. As to exchange (.s) Litt. 89. 04, 65. As to wliethor of piefcrmcnts, see Downes r. au exchange by lessee for twenty Craig, 9 Mce. k W. 1C6. years with lessee for thirty or forty CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 521 [contained in all exelianges (y).] But tMs doctrine seems now to be affected by tbe provision of 8 & 9 Yict. c. lOii, s. 4, whereby it is enacted, that an exchange of any tene- ments or hereditaments made by deed executed after 1st October, 1845, shall not imply any condition in law. It may be proper, too, before we conclude this head, to point the reader's attention to the distinction between the convey- ance properly called an ccchcDige (that is, one made in the method above pointed out), and a transaction where the parties execute mutual coni'djances of their respective lands under some other form or forms of assurance ; for to such cases the doctrines above laid down, as to cxcJuoiges, have no application (;:), Y. [A Partition is where two or more joint-tenants, co- parceners, or tenants in common, agree to divide the lands so held among them and thereafter to hold in severalty, each taking a distinct part (r/). Here, as they all originally hold pro indiviso or promiscuously, it is necessary that they shall all mutually convey and assure to each other the several estates, which they are to take and enjoy sepa- rately [h).~\ By the common law, coparceners might make partition by parol only, accompanied by livery ; but joint- tenants and tenants in common could not make it other- wise than by deed ; though it would appear that if perfected by livery such deed did not require to be signed {c). (y) As to warranty, vide sup. Yict. c. 118, ss. 92, 147; 9 & 10 p. 490. Vict. c. 70; 10 & 11 Vict. c. Ill ; {z) See Eton College v. Bishop 11 & 12 Vict. c. 99; 12 & 13 Vict, of Winchester, 3 Wils. 491. It is c. 83 ; 14 & 15 Vict. c. 53; 15 k 16 further to be observed, that ex- Vict. c. 79; 17 «t 18Vict. c. 97; 22 changes of land may now be & 23 Vict. c. 43.) effected, thi-ough the agency of • [a) As to partition, see Co. Litt. the Inclosure Commissioners; and IGob. that the provisions of the general [h) Vide sup. p. 338. Inclosure Acts on this subject are ((;) 2 Bl. Com. 324. Blackstone applicable not only in cases of in- adds that the statutes 31 Hen. 8, closure, but even as regards lands c. 1, and 32 Hen. 8, o. 22 (which not subject to be inclosed, or in re- subjected joint-tenants and tenants spect of which no proceedings for in common to a -vcxit of partition), inclosure arc pending. (See 8 & 9 did not affect the mauner of con- 523 15K. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. However, under the Statute of Frauds, (29 Car. II. c. 3,) an instrument in writing, signed by the party or his agent, was made necessary in every case of partition by way of agreement [d). And by the pro"ST.sions of 8 & 9 Yict. c. 106, s. 3, partitions of all hereditaments (not being copyhold) made after 1st October, 1845, shall be void at law, unless made not only in writing, but by deed {e). The common law conveyances which have been hitherto considered, are all (it may be remarked) of a pvimarn or original character. Those which remain are of a secondary or derivative sort, which presuppose some other conveyance precedent ; and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. As, — YI. A Eelease ; which may be defined as a convej'ance of an ulterior interest in lands or tenements to a particular tenant, or of an undivided share therein to a co-tenant (the relessee being in either ease in privity of estate with the relessor,) — or of the right to such lands or tenements, to a person wrongfully in possession thereof (/). It was always effected without livery of seisin, even though the interest conveyed were freehold ; for the doctrine of release is founded on this principle, that though the freehold in possession could not pass at common law without livery (which made a notoriety to the country), yet where another veyauce whoa the partition was of any tenements or hereditaments effected without writ. It may be made by deed executed after 1st remarked that in case of a partition October, 1815, shall not imply any between joint tenants (no delivery condition in law. Partitions, as of seisin from one co-tenant to the well as exchanges, may now be other being required) a mutual effected under provisions specially release is the proper method of devised for that purpose in the assurance; but a grant would be General Inclosure Acts. See the equally efficacious. Acts referred to, sup. p. 521, n. {z). {d) Co. Litt. by Harg. 169 a, (/) As to releases, see Co. Litt. n. (4). See, however, sup. p. 496, 264 a. Some accoimt of the early n. (/). state of the law respecting them (e) It is also provided by 8 & 9 will be found in Hist. Eng. Law, Vict. c. 106, 8. 4, that a partition by Reeves, vol. iii. p. 354. CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 523 person was already in tlie possession, the reason and pro- priety of that ceremony failed ; and the grantor might consequently convey such right or interest as be had, by mere deed {g) . A deed, however, is essential to the efficacy of this conveyance [h) ; and the proper operative w^ord to be employed in it, is that of " release " (?) : yet it is to be observed, that the release of a right may not only be expre8s,\)ui may also be i implied hij law from circumstances; and when it is of this kind, it may take place without deed {k). A release (in conformity with the definition) may enure in several ways. 1. [By way of enlarging an estate, or enlarger V estate. This is the species of release that most frequently occurs, and it consists of a conveyance of the ulterior interest of the remainderman or reversioner to the prior particular tenant : as if there be tenant for life or years, remainder to another in fee, and he in remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee. But to the validity of such releases as these, it is necessary that the estate of the relessee should be a complete and rested one (/), for if there be lessee for years, and, before he enters and is in possession, the lessor releases to him all his right in the reversion, such release is void ; and this because the lessee has, in such case, a mere interesse termini, and not an estate upon w'hich a reversion can (y) 2 Bl. Com. 325; Gilb. Ten. (3). If the estate of the relessee, 53. therefore, is an estate in possession, {h) Co. Litt. 264 b. he oug-ht to be in actual possession (() Vide sup. p. 492, as to the of the land (see Litt. ss. 455, 456, use of this word in reference to the 459); for otherwise his estate is obligations of a deed. To which it incomplete. But otherwise actual maybe added that this is the tech- possession of the land is not neces- nical term employed in all cases sary: for "if a man make a lease where a renunciation of any right " for years, with remainder for or claim is concerned ; whether as " j'ears, and the first lessee doth regards real estate or things per- " enter, a release to him in the sonal, or rights of action. " remainder for years is good to {k) Co. Litt. ubi. sup. " enlarge his estate." — Co. Litt. [l) Co. Litt. by Butl. 270 a, n. 270 a, 270 b. 524 liK. II. OF RIGHTS OF PKOPERTY. — PT. 1. THINGS REAL. [properly be expectant (^^/).] And farther there must be a pncity of estate between the relessor and relessee ; that is, the one of their estates must be so related to the other as to make but one and the same estate at law : as in the case where the ulterior estate conveyed is a reversion or remainder mediately or immediately expectant upon the particular estate of the relessee ; all which, in contempla- tion of law, form parts of the same estate, as being derived, at the same time, out of the same original seisin {ii). Thus, if a man seised in fee make a lease for years, with remainder over for life, a release to the lessee for years is good ; for he hath both a privity and an estate ; and a release to him in the remainder for life is good also (o). But if A. makes a lease to B. for life, and B. makes a lease for years : and afterwards A. releases to the tenant for years, this release is void to enlarge his estate, because there is no privity between A. and the lessee for years (j-j). Upon the same principle a release to a tenant at will, is good, because he has a sufficient estate for the purpose, and a privity with the lessor ; but a release to a tenant at sufferance, is void because he has a possession without privity (7). 2. [A release may enure by way of passing an estate, or mitter V estate ; as where one of two copar- ceners releases all her right to the other, this passeth the fee simple of the whole (r). But in this species of release, as well as the former, there must be a privity of estate («() "Before entry," says Lord entry is necessary to give effect Coke, " the lessee has but interesse to the release. The reason of this " termini, an interest of a term and will appear when we treat of con- " no possession; and therefore a veyauces of that class. " release, which enures by way of («) See 2 Prest. Conv. 324 ; 2 " enlarging an estate, cannot work Bl. Com. 325 ; Gilb. Ten. 70, 71 ; " without a possession : for before Goodright v. Forrester, 1 Taunt. " possession, there is no reversion." 602. (Co. Litt. 270 a.) It is to be ob- (0) Co. Litt. 273 a. served, however, that if the estate {p) lb. 272 b. for years be created by a convey- {q) lb. 270 b. As to tenants by ance under the Statute of Uses, sufferance, vide sup. p. 294. and nut at common law, no actual (r) Co. Litt. 273. CHAP. XVI T. — OF CONVEYANCRS AT COMMOX LAW. 'X^J [between the relessor and relessee (s) ; and therefore one tenant in common cannot release to his companion, "because they have distinct freeholds, and there is no necessary unity of title between them {f). 3. It may enure by way of panning a right, or miiter Je droit ; as if a man be disseised, and releaseth to his disseisor all his right ; hereby the dis- seisor acquires a new right, whicii changes the quality of his estate, and renders that lawful which before was tor- tious or WTongful {u). 4. By way of cxtiuguisJiment ; as if my tenant for life makes a lease to A. for life, remainder to B. and his heii-s, and I release to A. ; this extinguishes my right to the reversion, and shall enure to the advantage of B.'s remainder as well as of A.'s particular estate (;r). 5. By way of entr?/ and feoffment ; as if there be two joint disseisors, and the disseisee releases to one of them, he shall be sole seised, and shall keep out his former com- panion ; which is the same in effect as if the disseisee had entered, and thereby put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee '?/).] And here we may observe, with respect to the four last species of release, that the fee may be conveyed by any of them without the use of words of inheritance (;:) : in which respect they differ from releases to enlarge the estate ; and indeed from feoffments also, and from grants ; for as to all these, it is a general rule (though subject to exception in particular cases) that an estate of inheritance cannot be created without the word heirs (a), or the phrase heirs of the body, or, since the Conveyancing Act, 1881 {h), the equivalent words " in fee simple " or " in fee tail." YII. [A Confirmation is of a nature nearly allied to a release (r). Sir Edward Coke defines it to be a con- (.v) 2 Bl. Com. 325 ; Co. Litt. (.~) lb. 9 b. 273 b. (fl) Litt. s. 1 ; Co. Litt. 8 b ; vide [t) Co. Litt. 200 b. ; Gilb. Ten. sup. p. 237. 74 ; vide sup. p. 351. (A) 14 & 45 Vict. c. 41. [u) Litt. s. 466. ((•) As to confirmations, see Co. (j) lb. s. 470. Litt. 295 b, 308 b. 0/) Co. Litt. 278 a. 026 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [veyance of an estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a par- ticular estate is increased {(I) ; and the words of making it are these, " have given, granted, ratified, approved, and confirmed" {e). An instance of the first branch of the definition is, if tenant for life leaseth for forty years, and dieth during that term ; here the lease for years is voidable by him in reversion ; yet if he hath confirmed the estate of the lessee for years, before the death of tenant for life, it is no longer voidable but sm-e (/). The latter branch, or that which tends to the increase of a particular estate, is the same in all respects with that species of re- lease which operates by way of enlargement.] It is to be observed that a confirmation (like a release, and for the same reason) has always been effectual without livery of seisin, even though a freehold estate be the subject [g). Moreover, a deed is essential to the validity of a convey- ance of this kind (Ji) ; though there may be a confirmation imjilied by law from circumstances, as well as a confirmation by deed (/). VIII. [A Surrender, {sursimi redditio, or rendering up,) is of a nature directly oj)posite to a release ; for as that operates by the greater estate's descending upon the less, a surrender is the falling of a less estate into a greater [k). It is defined as a yielding up of an estate for life or years to him that hath an immediate reversion or remainder ; wherein the particular estate may merge or drown, by mutual agreement between them (/) . And accordingly it is held, that the surrenderee must have such an estate, {(l) Co. Litt. 295 b. (i) See Co. Litt. 2D5 b ; Doe v. [i) Litt. ss. 515, 531. As to Jenkins, 5 Bing. 4G9 ; Jeidfuis r. confirmations, see also Hiht. Eng. Church, Cowp. 482 ; Ludford v. Law, by Reeves, vol. iii. pp. 351, Barber, 1 T. R. 86; Doe r. Archer, 355. 1 Bos. &Pul. 531. (/) Litt. H. 516. {k) As to surrender, see Co. Litt. \(j) 2 Bl. Com. 326. 373 b. (/() Shep. Touch, by Preston, (/) Co. Litt. 337 b ; Burton r. vol. ii. p. 312. Barday, 7 Bing. 7.v7. CHAP. XVII. — OF CONVEYANCES AT COMMON LAW. 027 [that the estate surrendered may be capable of merging in it ; so that tenant for life cannot siuTender to him in remainder for years (m). A surrender is done by these words, " hath surrendered, granted, and yielded up," or the like (n). And though the estate surrendered be for life there was not, at common law, any occasion for livery of seisin (c) ; for there is a privity of estate between the sur- renderor and the surrenderee ; the one's particular estate and the other's remainder are one and the same estate ; and livery having been once made at the creation of it, there is no necessity for having it afterwards.] Xor was either deed or other wi-iting required, at common lav**, to effect the surrender of land (/;). But by the Statute of Frauds, (29 Car. II. c. 3,) s. 3, no lease (exeej)t of copy- hold) shall be surrendered otherwise than by deed or note in writing, signed by the party or his agent lawfully authorized by writing {q) : though this provision did not prevent there being a surrender created without writing by operniion of law ; for a surrender, like a confirmation, may be implied by law from circumstances (>•). And now by the statute 8 & 9 Yict. c. 106, (s. 3,) a surrender in writing of an interest in any tenement or hereditament, — not being a copyhold interest, and not being an interest which might by law have been created without writing, — made after the 1st October, 1845, shall be void at law {m) Perk. s. 589. of one. (Walker v. Richardson, 2 («) 2 Roll. Ab. 497. Mee. & W. 882.) As to the effect (o) See Farmer v. Rogers, 2 of such cancellation, see also Lord Wils. 26 ; Co. Litt. 338 a ; Shep. Ward r. Lumley, 5 H. & N. 87, Touch. 307 ; Sleigh v. Bateman, 65G. Cro. Eliz. 487. (»•) Shep. Touch. 301 ; Bac. Ab. (p) Co. Litt. ubi sup. ; Shep. Leases (S.) 3. See also as to sur- Touch. ubi sup. renders in law, Davison v. Stanley, {q) See Roe v. Archbishop of 4 Burr. 2210 ; Phippsr. Sculthorpe, York, 6 East, 86 ; Gore v. Wright, 1 Bam. & Aid. 60 ; Dodd i\ Ack- 8Ad. &E1. lis. A mere cancel la- lom, 6 Man. & G. 672. And the tion of the lease is, of itself , no sur- cases cited in the judgment in render ; (Doe v. Thomas, 9 Barn. Nickells v. Atherstone, 10 Q. B. &- Cress. 288 ;) but may, under par- 944. ticular circumstances, be evidence 52S BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. unless made not only in writing but h// deed. It is laid down that, upon a surrender, no entry is required to complete the title of the surrenderee, except for the purpose of bringing an action for any trespass com- mitted ; so that if a tenant for life or years surrender at a place off the land, to him in reversion, and the latter agree to it, he has the land in him without further cere- mony (s). As to the effect of this conveyance, we may also remark that if a lessee for life or years make a lease for years, re- serving rent, and then surrender his estate to his landlord, the estate for years made out of the estate so surrendered will continue notwithstanding the surrender ; but the under-tenant, at common law, was, by such surrender of the original lease, held discliarged (in general) from the rent and other covenants of //is lease ; for the reversionary estate to which they were annexed ceased, on the surrender, to exist {f). And hence in the case of leases, surrendered for the purpose merely of being renewed, it was in the power of the under-lessees (by refusing to surrender, in their turn, notwithstanding they had covenanted to do so), greatly to prejudice their immediate landlords, the first lessees. But by the statute 4 Greo. II. c. 28, it was provided in the particular case of a lease surrendered for the purpose of renewal, that the new lessee should (without a surrender of the under-lease) have the like remedy as to the rent and covenants, and the under-lessee should hold, as if the original lease had been kept on foot : and that the chief landlord should have the like remedy, by distress or entry on the lands and hereditaments comprised in such under- lease, for the rents and duties reserved by the renewed lease, (so far as they exceeded not those reserved by the original lease,) as he would have had if such original lease had been kept on foot (ii). And by 8 & 9 Yict. c. lUG, (.v) Shcp. Touchstone, 307, 308 ; Moore, 9-i ; Webb v. Eusscll, 3 Thompson v. Leach, 2 Vent. 198. T. R. 402. {() Lord Treasurer r. Barton, {») See Doe r. Marchotti, 1 B. & CHAP. XVIT. — OF COXVKYAXf'ES AT COMMON LAW. 529 (s. 9,) it is now provided more generally, that" when the reversion expectant on a lease (made either before or after the passing of that Act) of any tenements or hereditaments of any tenm-e shall, after the 1st October, 1845, be surren- dered or merge, the estate which shall, for the time being, confer as against the tenant imder the same lease, the next vested right to the same tenements or hereditaments, shall, — to the extent and for the purpose of preserving such incidents to, and obligations on, the same reversion, as, but for the surrender or merger thereof, would have sub- sisted, — be deemed the reversion expectant on the same lease. IX. An assignment of land or real estate is properly a transfer, or making over to another, of a person's whole interest therein, whatever that interest may be ; but it is more particularly applied to express the transfer of an estate for life or years. And an assignment for life or years differs from a lease only in this, that by a lease a man grants an interest less than his own, reserving to himself a reversion ; by an assignment, he parts with the whole property, and the assignee consequently stands in the place of the assignor {x). Thus where a lease is assigned, the assignee (as well as the lessee) is liable to the landlord or reversioner, for the future performance of the covenants made by the lessee : and such assignee remains liable until he assigns over in his turn to another person {//) . And this liability attaches to him even with- out entry (z). However, he is not liable by force of the assignment, except on such covenants as run with tJie Ad. 715; Cousins v. Phillips, 35 Moulez.'.Garrett,LawEcp.,5Exch. L. J., Ex. 84. As to the renewal 132; andonapp., SExch. 101. As of leases of croun lands, see 8 & 9 to the lessee continuing liable not- Vict. c. 99, s. 7. withstandin<»' the assignment, see {x) 2 Bl. Com. 326. Barnard v. Godscall, Cro. Jac. 309. (y) Taylor v. Shuni, 1 B. & Pid. {z) Williams v. Bosanijuet, 1 21 ; Burnett v. Lynd, 5 B. & C. 589 ; Brod. & Bing. 248. vol,. I. M M 530 BK. II. OF RIGHTS OF PROPEKTY, PT. I. THIXGS REAJ,. land (a), — a term that lias been explained in a former chapter (b) . And he is also entitled to enforce against the reversioner any covenant of that kind which the lease contains in favour of the lessee ; and in case the rever- sioner conveys his interest to another, then to enforce it, also, against the grantee of the reversion (c). It is to be observed, however, that if the transfer be for a single day short of the residue of the term, no liability or claim on the original covenants can arise between the transferee on the one hand, and the reversioner or the grantee of the reversion on the other hand, for it is then an under-lease and no assignment ; and the alienee not coming precisely into the place of the alienor, is in no privity with the reversioner (d). No deed or other writing was necessary, at common law, to the validity of an assignment (e) ; though, in the case of a lease for life, it could not be effected without livery of seisin (/) ; but by the Statute of Frauds, (29 Car. II. c. 3,) the same provision as to the necessity of a deed or written instrument was made, with respect to an assignment, as before mentioned in the case of a surrender {g). And now, by 8 & 9 Vict. c. 106, s. 3, an assignment of a chattel interest not being copyhold, in any tenements or hereditaments, made after 1st October, 1845, shall be void at law, unless made not only in writing but by deed ; while on the other hand, by the effect of the same statute, sect. 2, an assignment even of a lease for life may now be effected by deed of f/i-aiit without livery of seisin. The proper operative words in an assignment are " assign, transfer, and set over; " but it maybe effected by any words which are sufficient to express the intention {/i) . () lb. 237 a. But^in a convey- would be void as an assignment ance, not at common law but iDidtr may still be held valid as an under- the Statute of Uses, a proviso that lease, if the intention of the parties the grantor shall have power to can be so effected. (See Poulteney revoke the uses is good, and not V. Holmes, 1 Stra. 405 ; Pollock r. repugnant. — Ibid. Tliis subject Stracey, 16 Law Joum. (Q. B.) will be noticed in the next chapter. 132.) An under-lease /o>- the u-hole («) 2 Bl. Com. p. 327 ; Co. Litt. term will operate as an assignment. 237 a. If a thing, however, which (Beardman v. Wilson, Law Hep., is executory in its commencement 4 C. P. 57.) be afterwards executed, it cannot (i) The term is derived from the then be defeated by a subsequent French verb, defaire, infectiim red- defeasance ; Co. Litt. by Butler, derc. As to a defeasance, see Co. 237 a, n. (1). Litt. 236 b. (o: In the case of Cotterill v. M M 2 6'32 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. modern times being (as in the case of a mortgage) to in- clude in tlie same deed both the conveyance of the land to the alienee, and the conditions (if any) to which it is to be subject, and by which its effect may be defeated. XI. We will conclude this chapter by mentioning that there was also a common law conveyance termed a lease and release (jy). It obtained where one, desirous to convey in fee, first made a lease to the proposed alienee — for example, for one year — which demise, if perfected by actual entry, conferred on him a complete estate of lease- hold (q). The lessee then became capable of receiving a release of the reversion, for he would be tenant of the par- ticular estate on which that reversion was expectant (/•), and the next step therefore was to execute a release of the land to him and his heirs, so that by the conjoint operation of the two conveyances he became without livery of seisin tenant in fee in possession (s). The release in this case operated by way of enlargement of the estate of the lessee. Purchase, Lord Talbot said "he {g) 2 Bl. Com. 144. *' shoiild always discourage the (>•) Vide sup. p. 522. " practice of drawing- an absolute [s) It will be seen, in the next " deed and making a defeasance, chapter, that this common law "as it wore the face of fraud." "lease and release" was the foun- (Ca. temi). Talbot, 61, 64.) dation of the conveyance of the {p) See 2 Sand. Us. p. 70, where same name which operated under it is said not to have been frequent. the Statute of Uses (vide post, See Hist. Eng. Law, by Reeves, p. 540). vol. iii. p. 357 ; vol. iv. p. 356. ( 533 ) CHAPTER XVIII. OF CONVEYANCES UNDER THE STATUTE OF USES. The subject of common law conveyances having now suffi- ciently engaged oiu^ attention, we are next to examine those which derive their force from the statute law ; among which, the first place is due to conveyances founded on the Statute of Uses. It is evident from what was said in a former chapter, that this statute entirel}' failed to accomplish the object contemplated by its provisions (a). For instead of extin- guishing equitable ownerships, it made only a slight alteration in the formal words by which they might be constituted, and changed their name from uses to that of trusts — under which they took root more firmly, and flourished in greater vigour than before. But while the statute thus missed its mark, it led to accidental results of a most important character, the nature of which we shall here proceed to explain. The methods employed for creating or raising uses at the period when the statute passed, were principally three : viz. feoffment, covenant to stand seised to uses, and bargain and sale (/'>). A feoffment transferred the legal estate in the manner already explained when we treated of common law conveyances ; and it was applied to the purpose now in question, by declaring in the deed of feoffment or some other collateral instrmnent to whose -use the feoffee was to hold, and defining the estate or interest for which such use was to subsist (c). The covenant to stand seised and the («) Vide sup. pp. 3oG, 371. (') 1 Sand. Uses, pp. 172, 173; {/)) Hist. Eng. Law, by Reeves, Sugd. Gilb. Intiod. xlii. vol. iv. pp. 161 — 163. 534 BK. II. OF IIIGHTS OF PROPERTY. — PT. I. THINGS REAL. bargain and sale, emanated from tlie doctrine of equity that the owTier of land who covenanted to stand seised of it to the use of some near relative, or who entered into a bargain and sale of it for pecuniary consideration, — was thenceforward to be considered as holding it to the tise of such covenantee or bargainee respectively (r/). As soon as this doctrine was established, the object of putting land into use was accomplished with the greatest facility, by the mere execution on the part of the owner of a deed of covenant to stand seised (or of bargain and sale), for such estate as therein mentioned, to the use of the intended cestui que use : because a use conformable to that estate immediately arose in favour of the covenantee or bar- gainee {e). And though the original owner continued seised (there being no transfer of the legal estate), his ownership became nominal only, for he held subject to the use. In these two latter modes, therefore, as well as by feoffment, it had become the common practice to raise uses before the Statute of Uses passed. After that event, it became obvious that uses had now become capable of being tm-ned to a new purpose (though one that had not been designed by the legislature), viz. the conveyance of the legal estate upon a principle un- known to the common law. For we may remember that by the effect of the statute, whenever there is a seishi to a use, that use is executed, or (in other words) transmuted into the equivalent legal estate (./'). A party, therefore, who desired to aliene his land after the passing of this Act, had only to create (by whatever means) a seisin to the use of the proposed alienee, for such interest as intended {[/) ; and a legal estate of the same description was then trans- ferred to such alienee by force of the statute, as effectually as if it had been conveyed by one of the ordinary methods of the common law. It was also obvious that this new prin- {«0 Vide sup. p. 3G1. (/) Vide sup. p. 366. {e) 1 Sand. Uses, p. 172; Fox's () 2 Sand. Uses, p. 13. {p) 2 Sand. Uses, pp. 34, 94. C. .will. — OF CONNEYANXES UN'DER .STATITE OE I SES. ij'ji feree {q). Before the Statute of Uses, this wouki merely have raised a use in favour of such party ; but since that Act, the legal estate was transferred to him ; for, the covenantor being by the effect of his covenant seised to the use of the covenantee, the statute immediately executed that use. But the conveyance in question was held to be ineffectual, unless the parties to it stood to one another in the relation of marriage or of near consanguinity ; for no use was raised in contemplation of equity, in ease of a mere contract, unless such contract was founded on proper consideration, such as natural affection, and therefore, un- less the parties were connected as above, there was no use for the statute to take effect upon (r). On account of in- conveniences connected with this principle, and for other reasons, it became by degrees wholly laid aside [s). III. A Bargain and Sale. This was a conveyance adapted to the case where a person seised of land in pos- session, vested remainder, or reversion, proposed to convey it to some other person. In its terms it consisted of a bargain and sale for money by the owner to the intended alienee ; and at common law such bargain and sale might be a verbal one merely. By the effect of this contract, the bargainor became seised to the use of the bargainee, in fee, in tail, for life, or for years (according to the nature of the limitation) ; and this before the statute was the whole effect of the instrument ; but afterwards the statute executed that use, and clothed the alienee with a commensurate legal estate. But as it was essential to the efficacy of a covenant to stand seised, that it should be made in consideration of natural affection, so, for the like reason, it was requisite in the case of a bargain and sale, that it should be founded on pecuniary consideration ; (?) 2 Bl. Com. 338. (.v) 2 Fonb. Tr. Eq. 25 ; 2 El. [)•) 2 Sand.Uscs,pp.90,94; Shar- Com. 338 ; 2 Sand. Uses, p. 91 ; 2 rington V. Stratton, Plowd. 300 ; Saimd. by Wms. 97 a, n. (b). See Ilist. Eng. Law, by Reeves, vol. iv. Doe d. Starliug v. Prince, 10 L. J. p. 162. (C. P.) 223. 538 BK. IT. OF raoHTS or property. — pt. i. things real. for otherwise no use would be raised, and there would be nothing for the statute to operate upon. With respect to this conveyance, it is to be observed, that it possessed in a peculiar degree the recommendation to which we before adverted, of enabling parties to transfer a freehold without livery of seisin. For the covenant to stand seised could rarely be made available to the purpose, as it operated only between persons standing in particular relations to each other; but in the extensive class of con- veyances which take place between seller and purchaser, a bargain and sale afforded the ready means of dispensing with livery of seisin and attornment ; since by the insertion into the deed of a small sum of money, as the nominal consideration of a transfer, it was easy, even when the transaction was not really of the pecuniary kind, to obtain the benefit of this mode of conveyance (/). And not only the freehold in possession might be thus conveyed without livery, but a remainder or reversion might also be passed by the same method (as indeed it might also by covenant to stand seised), without attornment (u). But secret transfers of laud were strongly opposed (for reasons before sufficiently explained) to the antient policy of the law. As soon therefore as the legislature perceived that these might be accomplished with facility, by means of a bargain and sale, it hastened to provide a remedy ; and that devised for the purpose was, to connect with this new conveyance a new ceremony, calculated to insure publicity, and to operate as a permanent memorial of the transaction (.r) . It was accordingly enacted by the statute 27 Hen. VIII. c. 16 (called the Statute of Inrol- ments), that no bargain and sale should enure to pass a freehold, unless the same were by deed indented, and en- rolled within six months after its date, in one of the courts {t) 2 Sand. Uses, p. 41. vido sup. p. 469. \u) lb. p. 40 ; 1 Saund. by Wms. (x) 2 Sand. Uses, pp. 43, 44, 51 ; 234 b, n. (4); Shove v. Pincke, Bac. Use of Law ; 2 Bl. Com. 338. 5 T. R. 124. As to attornment, C. XVIII. — OF CONVEYANCES VXDER STATUTE OF USES. 539 of Westmiuster Hall, or else with the cusfos rotuJornni of the county (//). A bargain and sale, it is to be observed (and the remark is equally applicable to a covenant to stand seised), was also capable of conferring a complete estate for years, without entry ; a property that belonged not to a convey- ance at common law : for a common law lease for years gave (as formerly shown) no complete estate until entry has been made (::). It is, therefore, to be understood that if a man bargained and sold (or covenanted to stand seised in respect of) his land for a term of years, the use thus raised was executed and became a complete estate for years, by force of the statute, without any additional ceremony {a) ; upon the same principle that a bargain and sale, or covenant to stand seised, in respect of a freehold interest enured to pass the freehold, without livery of seisin {h). And though the Statute of Inrolments pro- vided compensation for the tendency of bargains and sales to dispense with livery in freehold conveyances, it made no similar provision to guard against their effect in conveying a term of years without entry ; for these chattel interests being then but of a precarious nature, were not thought of sufficient importance to be included in its enactment [c). A bargain and sale for term of years was therefore effectual without inrolment {d) ; and differed, in this respect, from a bargain and sale for an estate of freehold. It is material to observe, that no particular form of (y) 2 Sand. Uses, p. 41. Here- quired under the Statute of Frauds ditaments lying within any city (29 Car. 2, c. 3) to be in -writing ; or town corporate, the officers of ;iud by 8 & 9 Vict. c. 106, to be by which have authority to make in- deed. rolment of deeds, were excepted {h) Barker v. Keate, 2 Mod. 249 ; from this statute. (lb. p. 66.) Mallory's case, 5 Eep. 286. (z) Vide sup. p. 532. {c) 2 Bl. Com. 338. Blackstone (rt) It should be observed, how- says they were still of this charac- ever, that even in cases to which ter " tiU about six years" before the Statute of Inrolments did not the date of the statute. apply, the bargain and sale was re- id) Ibid. •jiO J5K. 11. OF KlGlirs OF PROFEKTY. FT. I. THINGS KKAL. words was held essential to the legal efticacj either of a bargain and sale or of a covenant to stand seised {e) . " Bargain and sell " were the words of transfer ordinarily used in the one case, and "covenant to stand seised" in the other. But other words would have the same effect (/) ; and the distinctive character of each of these conveyances was determined hy the consideration on which it was founded (g). Where the use was raised upon a pecuniary consideration, the conveyance was good as a bargain and sale, whatever the terms used : where it arose on the con- sideration of natural affection, it availed as a covenant to stand seised (/)). If the words employed, however, were such as to indicate that there was no intention of trans- ferring the property by the instrument in which they were contained ; for example, if they amounted merely to an engagement to convey by a future instrument no use would arise, and consequently no estate would pass (/). The rule, which required a bargain and sale to be founded on pecuniary consideration, was held to be matter of form only, and sufficiently complied with if the conxey- anoe pi(rj)orfc(l to be so founded ; and for this purpose any trivial sum might be inserted, though the consideration which really passed between the parties were of larger amount, or even though it were in fact not of a pecuniary nature (/i). It was also immaterial whether the sum so inserted were actually paid or not (/). IV. A Lease and Release. The conveyance so de- scribed was of a compound description, consisting of two separate parts ; first, a bargain and sale ; secondly, a com- mon law conveyance of release : and, (like the bargain and sale,) it was adapted to the case where a person seised (/■) 2 Sand. Uses, pp. 5G, 90; Doe {/:) Sand, ubi sup. ; 2 Saund. by V. Davies, 2 Mee. & W. 503. Wins. 96 b, n. (1), n. (2). (/) 2 Sand. Uses, p. 90. (») 1 Sand. Uses, pp. 118, 120. iff) 2 Fonb. Tr. Eq. 47. (fc) 2 ib. p. 54. (/) Sugd. Gilb. 96. ('. XVTII. — OF CONVEYANCES UNDER STATUTE OF USES. 541 of land in possession, vested remainder, or reversion, pro- posed to convey his interest to another. A conveyance of the same denomination ■s^•as among those (it will be remembered) Avhich obtained occasionally at the common law, and by its means an estate might be conveyed by lease and entry to a proposed alienee, with- out livery of seisin, in the manner explained in our last chapter {m). Now when the Statute of Inrolments had rendered it impossible to effect a secret and summary con- veyance of the freehold, by the method of bargain and sale («), the practitioners of the day were left to explore new means of attaining that favouiite object ; and they accordingly invented for the purpose a new conveyance under the Statute of Uses ; the hint and name of which was supplied by this common law expedient of lease and release (o). Instead of a lease, the conveying party was made to execute a bargain and sale for some leasehold interest, for example, for the term of one year. This, without any inrolment, passed the legal estate for a year to the bargainee, (the Statute of Inrolments extending to freeholds only,) and the estate so transferred was com- plete (as we have seen) without actual entry (p). The transferee therefore was capable of receiving a release of the freehold and reversion {q) ; which release was accord- ingly granted to him on the next day (r). This com- pound conveyance — which is said to have been invented by Serjeant Moore soon after the Statute of Uses («)-— was called, like its common law prototype, a lease and release ; though, properly speaking, it was rather a bargain and sale with release. As it was competent to pass the freehold without livery of seisin, entry, or inrolment, or any other ceremony than the execution of the deeds themselves [f), (w) Vide sup. p. 532. (q) Sand, ubisup.; 2Pre8t. Conv. (w) Vide&up. p. 538. 219. (o) 2 Sand. Us. p. 71 ; 2 Prest. (/•) Ibid. Conv. 219. («) 2 Bl. Com. 338 ; Hist. Eng-. [p) Vide sup. p. 539. Soe Sand. Law, by Reeves, vol. iv. p. 355. ubi Slip. (/) 2 Sand. Uses, p. 72. 542 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. and was in some other teclinioal points more advantageous than a bargain and sale, it soon grew into familiar use [u) ; and became so generally established as almost entirely to supersede every other method of conferring a freehold estate, whether at common law, or under the Statute of Uses. It is almost superfluous to add, that its legal validity, though formerly doubted by great lawyers, be- came, in progress of time, too firmly settled to be shaken (x). On the release, some use was ordinarily engrafted. If it was one to the relessee himself in fee, he took the legal estate as at common law {p) ; for this was not such a use as the statute executed (s) ; but if the use were declared to a third person, it would be executed by the statute, and the legal estate in the freehold conveyed would pass accord- ingly to liim. The lease (or bargain and sale) and the release in practice, used always to constitute separate deeds, the former bearing date the day before the latter ; but if com- prised in the same deed, they were understood to be equally effectual («) . V. A Grrant to Uses. Though, for the reasons already given, we have not thought ourselves at liberty to dispense altogether with the former learning relative to the lease and release, and to the other methods of conveyance before enumerated in this chapter, the reader will not fail to ob- serve that by the obvious effect of that most important provision of the 8 & 9 Vict. c. lOG, s. 2, to which we formerly had occasion to refer, — abolishing the antient maxim that corporeal hereditaments lie in livery only and not in grant, by enacting that they " shall, as regai'ds the (/<) 2 Sand. Uses, p. CO. that Act had the same effect as a {x) 2 Bl. Com. 339. lease and release. This Act was (y) Sand, ubi sup. repealed by 37 & 38 Vict. c. 96, the (:;) Vide sup. p. 368. use both of a lease and release, and (a) Sugd. Gilb. 229 (n.). By 4 & 5 of a statutory release, having been Vict. c. 21, a release made under in practice discontinued. C. XVIII. — OF CONVEYANCES INDER STATUTE OF USES. 543 " convej'ance of the immediate freehold thereof, bo deemed " to lie in grant as well as in livery," — all conveyances of hereditaments, (whether corporeal or incorporeal, whether in possession or in expectancy, and whether for an estate of freehold or for an inferior estate,) may now be brought within the range of that common law conveyance discussed in the last chapter under the head of grant ; though, in its antient and proper application, that conveyance was confined (as we have seen) to the transfer of incorporeal hereditaments and estates in expectancy : and this being the case, a grant has, in fact, supplanted, generally speak- ing, all these methods, and become the almost universal expedient for conveying real estate uiter riros. It is to be observed, however, that it is the practice of convey- ancers to import into a grant of corporeal hereditaments, limitations to uses, and that a conveyance so framed (when the use is not limited to the grantee) takes effect under the Statute of Uses ; for while the seisin to the use is created by force of the statute 8 & 9 Vict. c. 10(5, the use is converted into the legal estate by force of 27 Hen. YIII. c. 10(b). And the operation is the same of a conveyance under the Conveyancing Act, 1881, which has made the use of the word " grant " unnecessary (c). Having thus considered each of the different convey- ances under the Statute of Uses, it is now time to make gome remarks applicable to those conveyances as a class. We may remark then, in the first place, that conveyances to uses must of course comprise all the circumstances necessary to bring the Statute of Uses into operation. Some use, therefore, (either in esse or otherwise,) must be raised by them, and some sufficient seisin to such use must (i) It may be as well to remark, Statute of Uses, but as a commou that there may also be a grant of law graut extended in its operative land containing wo use ; as if A. power by force of 8 & 9 Vict. c. grant land du-ectly to B. and his 106, as already explained sup. heirs. In such a case the convey- p. 513. ance takes effect, not under the (<■) 44 & 45 Vict. c. 41, s. 49. 544 BK. II. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. be constituted (f/) ; or, in the language of conTeyancers, there must be a seisin proper to support or serve the use {e) . And from this necessity of a seisin to a use it follows, that an existing term of years cannot be transferred by any method of conveyance depending on the Statute of Uses for its operation ; for of a mere chattel interest there can be no seisin : though, on the other hand, the owner of the freehold ma}^ (as we have seen) convey it by these methods, for a term of years ; for he has a seisin out of which the use for the term may be served (/). For the same reason it has also been supposed that a corporation aggregate cannot aliene land by a conveyance under the Statute of Uses {g) ; for, as formerly remarked, it was part of the antient doc- trine with respect to uses, that such bodies as these could not be seised to any use but their own (/?). When corpora- tions aggregate, therefore, have had occasion to make conveyances of their lands, the method adopted has com- monly been that of a feoffment ; or a lease with actual entry, followed by a release {i). With respect, however, to the use which is required for the pvu-pose of a conveyance under the statute, this may either be expressly declared or implied by law. Thus, if A. convey by feoffment or lease and release to B. in fee, without consideration, and without declaring any use, there will be a resulting use, by construction of law, to himself the grantor ; and such use the statute will execute accordingly {J). With respect to the limitation of estates by these methods of conveyance, it may be laid down as a general proposition, that a limitation of the legal estate by way of use, is governed by the same principles as apply to the {(l) Vide sup. p. 368. (0 2 Sand. Uses, p. 59 ; Sugd. [c) 2 Sand. Uses, p. 69; 1 Sand. Gilb. 7, n. (1). Uses, pp. 97, 133, 140. {j) Co. Litt. 271 b ; 1 Sand. (/) 2 Sand. Uses, p. 59. Uses, pp. 106, 109 ; Doe v. Rolfe, {g) lb. p. 68; 4 Cm. Dig-. 175; 3 Nov. & Per. 648. Vide sup. Sugd. Gilb. 7, (n.). p. 361. (A) Vido sup. p. 362. CH. XV[I1. — OF CONVKYANCES UNDER STATUTE OF USES. 545 creation of estates by a common law assurance {k). Thus we have seen that the word heirs is necessary, at common law, to create an estate of inheritance (/) ; and in like manner if a man bargains and sells to A., without adding and /lis //eirs, or the equivalent expression in fee siuijjle, A. has only an estate for life(^//). So an estate may be limited by way of use (as well as in a common law conveyance) in possession, in remainder, or in rever- sion {n) ; and, if in remainder, must be limited to take effect in possession immediately on the determination of the particvdar estate (o) . So the remainder may be either vested or contingent (p) ; and is subject (if contingent) to the common law rule, that if it amount to freehold, it cannot be limited on a particular estate less than freehold (), Yet if the remainder were to the use of himself in fee, he would not at one time have taken by purchase ; at least not in such a sense as to make him a purchasing ancestor. For such a use was considered as amounting only to the old use in reversion, so that it would be converted by the statute into a legal estate in reversion, which would descend to the blood of the same purchaser as before (e) . And such was the state of the law at the time of passing the In- heritance Act (3 & 4 Will. IV. c. lOG) ; but that Act (in its third section) established a new rule with respect to the limitation which a man makes in his own favour, in his own conveyance ; the terms of the provision being as follows : — " that when any land (r/) shall have been " limited by any assurance, executed after the 31st De- " cember, 1833, to the person or to the heirs {e) of the " person who shall thereby have conveyed the same land, " such person shall be considered to have acquired the (i) Co. Litfc. ubi sup. ; Co. Litt. personal property, if transmissible by Harg. 13 a, n. (2) ; 1 Sand. to /leiis. Uses, p. 135 ; Sugd. Gilb. pp. 150, (t) A limitation by a man to his 151. own heirs, is equivalent to a limi- (c) 1 Kep. 129 b, 130 a; Co. tation to himself and his heirs ; Litt. 23 a; Reed v. Errington, " for," says Lord Coke, "^(s;"es cs< Cro. Eliz. 321 ; Lord Raym. 802 ; "pars anteccssoris. And this ap- Godolphin v. Abingdon, 2 Atk. 57 ; " peareth in a common case, that and see "Wood v. Douglas, 28 Ch. " if land be given to a man and Div. 327. The case was the same "his heirs, all his heirs are so where the use in fee resulted to the " totally in him, as he may give grantor, instead of being expressly "the land to whom he wiU." — limited. As to resulting uses, vide Co. Litt. 22 b ; and see 1 Vent. sup. p. 361. 378; 2 Bl. Com. 176. A limita- {d) The word land is used in this tion by a man to his own heirs was Act in a sense much larger than consequently subject, before the properly belongs to it ; and is to Inheritance Act, to the same rules be understood to extend to all as stated in the text with respect hereditaments, corporeal or iucor- to a limitation by him to h imself in poreal, freehold or copyhold ; and fee, or to his own use in fee. (1 everj- interest capable of being in- Kep. 129 b, 130 a; Co. Litt. ubi herited, including chattclsand other sup.) N N 2 548 BK. IT, OF RIGHTS OF I'ROPERTY. — PT. I. THINGS REAL. " same as a purc/iascr by virtue of such assurance, and " shall not be considered as entitled thereto as of his former " estate, or part thereof." We may add here, that, upon the same principle which at common law made it impos- sible for a man to convey to himself, he could not convey to his wife ; she being considered as the same person with him (_/'). Yet the object might be effected through the medium of a limitation to uses ; that is, by creating a seisin in another person, and declaring a use to the wife {g). And now under the Conveyancing Act, 1881, a man may convey freeholds directly to himself jointly with another or others, and may also convey freeholds directly to his wife either alone or jointly with another or others {//). 2. At common law, a freehold could not be created to commence in fiituro ; or, in other words, be limited to take effect at a future period, except by way of re- mainder upon some particular estate also passing at the same time out of the grantor; for which rule, and the reasons on which it is founded, the reader is referred to a former part of the work (/). But this might be effectually done by a conveyance under the Statute of Uses : for a use was never subject to the like restriction, but may be limited for any extent of interest to commence in fiitiiro {J) ; and the statute, taking effect on such future interest, transmutes it into legal estate (A-). Thus a man might covenant to stand seised in fee to the use of another (or bargain and sell to him in fee) seven years hence, and such conveyance would be effectual (/). So by feoff- ment, or lease and release, an estate might have been con- veyed to A. and his heirs to the use of B. and his heirs, at the death of C. {m). A use thus limited in fafuro, (/) Co. Litt. 112 a; Moyse v. (i) Vide sup. pp. 320, 321 ; Giles, 2 Vera. 385; Lucas V. Lucas, Sugd. Gilb. 163, (n.) ; 1 Saud. I Atk. 271 ; Arthur v. Bokenham, Uses, p. 138. II Mod. 156. {J) Vide sup. p. 364. (^) 1 Sand. Uses, p. 132. (/.■) Sugd. Gilb. 161, (n.). (/() 44 & 45 Vict. c. 41, s. 50. (1) 1 Sand. Uses, p. 139. (ill) Ih. 140. CIl. XNIIl. — OF COXA'EYANCES (:M)E11 STATUTE OF USES. 549 independently of any preceding estate, is called a springing use {n). Such a use is also often described as executory, because it is not executed by the statute until it comes into esse by the arrival of the period contemplated. Thus, in the two first examples, the whole fee would remain in the covenantor or bargainor, till the seven years ex- pired (o) ; in the two latter, a use resulted to the feoffor or releasor, till the death of C. ( j>). But on these events happening, the springing use would be executed, and the cestui que use become clothed with the legal estate in fee. 3. By a common law conveyance, an estate could not be limited, upon a future event, to one person, in abridg- ment or defeasance of an estate of freehold, first limited to another [q) ; which is often expressed, where the dis- positions are both in fee simple, by the maxim that a fee cannot he limited on a fee (r). Thus land could not be conveyed to B. in fee, or for life, with a provision that when C. returned from Rome, it should thenceforth imme- diately go over to C. in fee (s). For this would be to defeat the first estate by force of a condition, which can only be done by the entry of the grantor, or his heirs ; and the effect of such entry would be to destroy the second (w) Sugd. Gilb. lo3. his body (which is a fee-simple (o) lb. 161, (n.), 153, (u.) qualified, vide sup. p. 239), with [p) 1 Sand. Uses, p. 140. remainder in fee to C, this re- {q) Co. Litt. by Butl. 203 (b), n. mainder is void. (Fearne, by Biitl. (1) ; Cogan v. Cogan, Cro. Ehz. p. 372.) And the maxim, in this 360 ; Fearne, by Butl. pp. 14, 15, sense of it, applies to conveyances 18, 264. mider the Statute of Uses, as well {>•) Fearne, by Butl. p. 372 ; 1 as those at common law. It is, Sand. Uses, p. 143 ; 2 Bl. Com. 173, however, to be recollected, that 164. This maxim applies not only there may be alternate or substituted to such limitations as referred to in limitations of the fee, where each of the text, but also to limitations of them is by way of contingent re- one fee upon another by way of re- mainder (vide sup. p. 326). See mainder. For no remainder (as we the maxim further discussed in the have seen) can be limited on a fee- modern case of Egerton v. Massey, simple (vide sup. p. 320). And 3 C. B. (N. S.) 338. therefore if land be given to A. and (.v) Fearne, by Butl. pp. 14, 15. his heirs, so long- as B. has heirs of 550 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. limitation as well as tlie first, and to restore the grantor and his heirs to their former estate {t). But a use might always be made to shift, in this manner, from one person to another {u) ; and therefore, since the statute, land may- be conveyed through the medium of a use, in like manner ; as by limiting it to A. and his heirs, to the use of B. and his heirs, with a proviso, that when C. returns from Rome, the land shall be to the use of C. and his heirs (x). A use so limited in derogation of a preceding estate, is called a shifting or secondanj use (f/) ; and this also is of the • executory kind, the operation of the statute being suspended till the event arrives (s). Thus, in the example just given, there is a use first executed by the statute in B., and when C. returns from Rome, the use to C. comes into esse, and is executed in him {a). It is, however, to be observed, that upon questions of legal construction, a preference is always given to the modifications of the common law ; wherefore, it is firmly settled, that no estate capable of being considered as a remainder (according to the rules by which remainders are limited) shall ever be construed as a shifting or springing use {b). But this maxim, so far as regards the present subject, must now be considered in reference to the following enactment, viz. that every contingent remainder created by any instrument executed after 2nd August, 1877, or by any will or codicil revived or republished by any will or codicil after that date, which would have been valid as a springing or shifting use or executory devise or other limitation had it not had a sufiicient estate to support it as a contingent remainder, {t) Co. Litt. 379 a ; Litt. ss. 721, {a) This form of disposition is 722, 723 ; 1 Sand. Uses, p. 151 ; sometimes called a conditioual limi- vido suj). p. 300. tation, a tei'm, however, which is {u) Sugd. Gilb. 153, 154, (n.) ; 1 also used in a different sense. See Sand. Uses, p. 152. Fearne, by Butl. (9th edit.) pp. 13, {x) 1 Sand. Uses, p. 149. 15 ; Sugd. Gilb. 178, (n.) ; 1 Sand. (y) lb. 152 ; Sugd. GUb. 152, (n.) Uses, p. 151. (z) Sugd. Gilb. 154, 155, (n.) ; 1 (*) 2 Saund. by Wms. 388 ; Sand. Uses, p. 144. Fearne, by Butl. 393, 9th edit. CII. XVllI. — OF CONVEYANCES INUER STATL'TE OF USES. 551 sliall, in tlie event of the prior particular estate of freehold determining before the contingent remainder vests, be capable of taking effect in all respects as if the con- tingent remainder had originally been created as a spring- ing or shifting use or executory devise or other executory limitation (c). 4. The grantor, in a common law conveyance, could not reserve to himself, nor confer on any other person, the power of revoking or altering the grant, by any future act or instrument : for that was deemed repugnant to the conveyance itself (//). The utmost that the common law allowed, was a deed of defeasance (coeval with the grant, and therefore esteemed a part of it) upon events specifically mentioned (('). But the limitation of a ^^s•f, subject to a power of this description, was not considered as involving any repugnancy ; for a use was a mere direction to the trustee, how he was to deal with the legal estate ; which might well be recalled or changed (/). Therefore, in a conveyance under the statute a proviso giving to the ■ grantor, the grantee, or a stranger, authority to revoke or alter, by a subsequent act, the estate first granted, would be valid ; for it is in effect no more than an authority to revoke the use first limited, or to declare a new one {(/). Such provisoes are called poteens (h) ; a term properly applicable, as we have seen, to all authorities, as distin- guished from estates (?) : and they are either mere poicers of revocation (k), enabling the grantor simply to recall what he has bestowed ; or poicers of revocation and new appoint)nent (/), authorizing the grantor, or some other (c) 40 & 41 Vict. c. 33 ; vide sup. " came from equity into the com- p. 333. " mon law with the Statute of (d) Co. Litt. 237 a; 2 Bl. Cora. "Uses."— (1 Burr. 120.) 327, 335 ; 2 Fonb. 158, 159. {i) Vide sup. p. 229. (e) 2Bl.Com. 335; \idesup. p.531. (/.) A power of appointment ijn- (/) Sug-d. Gilb. 158, (n.) plies power of revocation, but not {ff) Ibid. « coiivcrso. (4 Cruise, Dig. 232.) (A) " The limitation and modify- (1) 1 Sand. Uses, p. 155; 4 " ing of estates by virtue of powers, Cruise, Dig. 228. 552 BK. II. OF KIGHTS OF PROPERTY. — PT. I. THINGS REAL. person, to alter or make a new disposition of tlie estate conveyed. The first will of course hardly find a place except in grants of a gratuitous nature, (or voluntary con- veyances as they are called,) though in these they are naturally to be expected {in) ; mankind, according to the remark of Lord Bacon, having alwaj's affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards (;?). But with respect to powers of revocation and new appointment, they are of frequent occurrence in the more common case of con- veyances founded on consideration, and particularly in family settlements ; their object not being to indulge the caprice of any party, but to carry into effect with greater convenience the arrangements actually contemplated. Thus, if a life estate be limited to the settlor, with re- mainder over, it is common to insert a power enabling him from time to time to make effectual leases of the property in possession, for terms not exceeding twenty- one years ; a privilege reasonable and convenient in itself, but such as is not incident to the estate of a tenant for life generally (o). Of the same nature, in general, are the usual powers of jointuring, selling, charging land with the payment of sums of money, and the like (7;) ; and all these are technically described as powers of revocation and new appointment, — because, in authorizing a new disposi- tion not made by the conveyance itself, they operate 2)ro tanto as a revocation of those which it contains ((/). Such (;«) 2 Fonb. 155, n. [q). as are contained in the statute ; and (;;) Bl. Com. ubi sup. larger powers to tlie same effect (o) It is to be remembered here, are contained in the Settled Land that under 40 & 41 Vict. c. 18 (as Act, 1882 ; (vide sup. p. 252). under the previous Acts as to settled (ju) 2 Sand. Uses, p. 81. estates), such leases may now be (y) 1 Sand. Uses, p. 155; 4 Cruise, made by a tenant for life under a Dig. 228. The term power of re- settlement even irithout a power to vocation and new appointment is not, that effect in the settlement, pro- however, usually applied to a m( re vidod it contains noexpress declara- power of leasing, jointuring, or the tion to the contrary ; and subject to like ; but to powers of a different sui'h o'her exceptions and provisions nature, as where a man conveys his CIl. XVllI. — OF COXVEYAXCES UNDER STATUTE OF USES. O 53 a power, if closely considered, will be found to amount to an authority to create a use, to take effect in derogation, to a certain extent, of the uses first limited ; or rather to the virtual limitation of an executor?/ use of that descrip- tion, in favour of such person, and for such estate, as shall be defined by the subsequent act of the donee of the power (r). This subsequent act or exercise of the power is called an appoinfinent (.s) ; and its effect (when it cor- rectly pursues the authority) is to raise, in favour of the appointee, a use corresponding to the estate appointed (/) ; which being served out of the original seisin, is imme- diately executed by the statute, and transmuted into the estate to trustees to certain uses, with a proviso that it shall be law- ful for him or them at any future time to revoke these uses and to declare new ones, &c. (>■) Sugd. Gilb. 152, 153, (n.) ; 2 Sand. Uses, p. 81. (s) Sand, ubi sup. It is to be noticed that in whatever mode the power is exercised (whether by conveyance inter vivos or other- wise), the instrument in every case operates strictly as an appointment or declaration of the use, and the appointee takes the legal estate ; and if any ulterior use is declared, it operates merely as a trust in equity. (See Sugden on Powers, p. 457.) {() As to the manner of executing a power to appoint by tci//, see 7 WiU. 4 & 1 Vict. c. 26, ss. 10, 27, (post, p. 603, in notis) ; as to illii- sori/ appointments, 11 Geo. 4 & 1 Will. 4, 0. 46 ; as to leases made under powers, 13 & 14 Vict. c. 17 ; as to defective execution of powers, 22 & 23 Vict. c. 35, s. 12. By the provision last mentioned, any deed executed after 13th August, 1859, in the presence of, and attested by two or more witnesses, in the man- ner in which deeds are ordinarily executed and attested, shall, so far as respects the execution and attes- tation thereof, be a valid execution of a power of appointment by deed, or by any instrument in writing, not testamentary, notwithstanding it shall have been expressly re- quii'ed that a deed or instrument in writing, made in exercise of such power, should be executed or attested with some additional or other form of execution, attesta- tion or solemnity. Independently of this enactment, relief against a defective execution of powers has been also sometimes afforded in eqiuty, but in favour only of a limited diss of persons. (See Luceua v. Lucena, 5 Beav. 249 ; Garth v. Townsend, Law Rep., 7 Eq. Ca. 220.) Notice may be taken here, also, of a recent sta- tute, under which no appointment made after the passing of the Act shall be invalid on the ground that whereas the power was to appoint amongst several objects, the ajj- poiutment does not include the whole of them. (37 & 38 Viet, c. 37.) 554 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. equivalent legal estate {u) . An appointment is not con- sidered as an independent conveyance {x). It is merely ancillary to the former deed ; which (as already observed) contains, in effect, a prospective limitation of the new use. The appointee, therefore, is considered, for most purposes, as deriving his title under the original conveyance ; and to be in the same position as if that instrument had actually contained a limitation in his favour, to the extent of the estate appointed (//). And with regard to such powers generally, it may be here added that the Conveyancing Act, 1881 (z), sect. 52, enables the donee of the power, whether coupled with an interest or not, to release the power by deed, or by deed to contract not to exercise the power; and that the Conveyancing Act, 1882 {a), sect. 6, enables him to disclaim the power by deed. Not only as to the limitation of estates, but in other particulars, there are differences between conveyances to uses, and those at common law. The possession was indeed given (as we have seen) by the conveyance to uses quite as effectually (for most purposes) as if the alienee (supposing the interest freehold) had received livery of seisin, or (supposing it leasehold) had made actual entry (/>). But as the conveyance to uses, e. g., a bargain and sale, conveyed the possession by construction of law only, so it differed from a feoffment, in such incidents as result from delivery of possession in point of fact. Therefore, though a feoffment, when made by the tenant in actual possession, was capable of passing a wrongful estate of freehold, and, when made by a particular tenant for a greater estate than he could lawfully convey, occasioned a forfeiture (or, in the case of a tenant in tail, a discontinuance) of the par- ticular estate, and the contingent remainders dependent («) 2 Sand. Uses, p. 82 ; 4 Cruise, 734 ; Sugd. on Powers, p. 470. Dig. 228. {z) 44 & 45 Vict. c. 41. {x) 2 Sand. Uses, p. 84. (a) 45 & 46 Vict. c. 39. {>/) See 4 Cruise, Dig. 282, 497 ; {/') 2 Sand. Uses, p. 52. Bringloe v. Goodson, 4 Bing. N. C. C'll. XVIII. — OF CONVEYANCES UNDER STATUTE OF USES. 555 on that estate used to be defeated (f) , — no such results followed from any conveyance by way of use {d) . For by the feoffment, there was an actual investiture of the pos- session, as for an estate of freehold ; which, it was held, must take effect either de jure or de facto ; but conveyances by way of use could, in their nature, pass no more than the grantor might lawfully transfer (^). For this reason they received, by way of distinction from a feoffment, (and some others now abolished,) the appellation of innocent conveyances (/). But the statute 8 & 9 Vict. c. 106, s. 4, having (as we have seen) provided, that a feoffment made after the 1st October, 1815, shall not have any tortious operation, the whole learning on the subject to which we have here referred, (so far as regards conveyances executed after that date,) has, by the effect of this provision, been swept away. The reader who reflects attentively on the nature of a conveyance under the Statute of Uses, as we have attempted to explain it in the present chapter, will not fail to be im- pressed with the importance of the changes which this act of parliament incidentally occasioned. It has been said to have had little other effect than to make a slight alteration in tlie formal words of a conveyance, — a remark alluding to the practice it introduced of limiting one use upon another, when the intention is to give a trust estate (r/). So far indeed as the creation of that species of interest is concerned, such, and such only, was its result, but the remark puts altogether out of sight its operation in regard to the legal estate. We have seen that it enabled the (e) Vide sup. p. 315. grantor may properly transfer be- {d) 2 Sand. Uses, p. 73. longs also to a grant at common [c] Fearne, by Butler, p. 322 ; law ; also, to a grant imder the Smith V. Clyfford, 1 T. R. 7-14. statute 8 & 9 Vict. c. 106, and (/) Fearne, by Butler, p. 322 ; generally to any conveyance under in Smith v. Clyfford, I T. R. 744, the statute 44 & 45 Vict. c. 41. they are tenned lawful convey- (Co. Litt. 332 a ; 2 Sand. Uses, p. ances. The same property of pass- 49.) ing no estate beyond -what the {(j\ 2 Bl. Com. 336. 55'j KK. II. OF KTGHTS OF PROPERTY. — PT. I. THINGS REAL. owner to dispose of this, in methods obviously more suitable to the exigencies of social life than the convey- ances formerly employed, and exempt from the harsh and inconvenient effects with which these were sometimes attended ; and (what is of still greater consequence) that it materially enlarged the power of alienation itself, by affording the owner the means of subjecting his property to a variety of arrangements of which it was before incapable. In thus affording escape, however, from the rigours of the antient law, the statute would have opened the door (unless closely watched) to inconveniences of a different description. For it would have enabled owners of land, through the medium of springing and shifting uses, and powers of revocation and new appointment, to prescribe the course in which their property should devolve, and pre- vent its effectual alienation, for any period of time however extended ; and therefore to curb this licence, it was found necessary to establish a rigid rule of restriction. In order to explain this, we shall be led into some examination, before we close the chapter, of a subject which now for the first time presents itself, viz. that of 'pcrpciuiti) {li). In settlements (by which we here mean conveyances by way of provision for a family, whether made in consideration of marriage or otherwise), grantors have always been naturally prone to regulate the succession to an estate at very distant periods : — the earliest known arrangement of this nature having been the creation of an estate tail ; which once operated as a sure and perpetual settlement of the property, in the line of the first donee, for the remotest generations. But as all such arrangements, while they continue in force, however long that period may be, tie (/() On the subject of perpetuity, Smith's Leading Cases, 183; Cadell 6ceCo.Litt. by Butler, 379 b, 327 a; r. Palmer, 10 Bing. 140; Tolle- 1 Sugd. Pow. 491, edit. 1830; 1 mache t^. Lord Coventry, 8 Bligh, PoAV. Dev. 388 ; Hist. Eng. Law, N. S. 547 ; Monypcnny v. Bering, by Reeves, vol. iii. p. 324 ; 1 IG Mco. & TV. 418. CII. XVni. — OF CONVEYANCES L'NDER STATUTE OF I SES. 557 up the proi:)erty, (as it is commonly expressed,) or in oilier words prevent its free alienation, they have been considered in later times with reasonable jealousy and dis- like, as tending to embarrass the transactions of mankind, and to frustrate the purposes for which property was first established (/). To these feelings was doubtless in some measure attributable (k) the doctrine established by Talta- rum's case, in the reign of Edward the fourth, by which a common recovery was allowed to have the effect of un- fettering an estate tail (/) ; and in the same spirit, when limitations by way of springing and shifting uses, and powers of revocation and new appointment, came into j)ractice, the courts soon began to contemplate with alarm the restrictive tendency of these devices. It was thought necessary, therefore, to fix some period as the latest at which an estate limited by way of executory use should be allowed to vest. Such a period has been accordingly established by a series of judicial decisions ; and it is one derived from the state of the law applicable to entails. Even upon the most permanent plan, that of strict settle- ment, to which we adverted in a former place, the estate entailed could not, after the doctrine established by Taltarum's case, be preserved from alienation longer than during the life of the taker of the first estate of freehold, and the nonage of the tenant in tail next in remainder ; for on attaining the age of twenty-one, the latter was competent, with the concurrence of the former, to suffer a recovery (;;?). By analogy to this (;/) it has become the rule that the latest period at which an estate limited by way of executory use can be allowed to vest, is (with one particular exception) the expiration of some life or lives in being, and twenty- one years afterwards (o) ; as if a man (j) See 2 Bl. Com. 173. {m) Vide sup. p. 331. {k) See Taylor v. Horde, 1 Burr. («) Co. Litt. by Harg. 20 a ; 60 ; 5 Cruise, Dig. 328. note (5). (I) See as to this case, 5 Cruise, {o) 2 Bl. Com. 171; Loug v. Dig. 422, 423: et Mip. p. 2i8. BLk kali, 7 T. R. 100; Cadell r. 558 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THIXGS REAL. be seised in fee of lands, and gives tliem to the first son of J. S. that shall attain the age of tT\'enty-one, and his heirs, — here the estate vests, at the latest, on the expiration of J. S.'s life and the infancy of such son ; and this infancy, generally speaking, cannot expire later than twenty-one years after J. S.'s death ; but if the son is born posthu- mousli/ (which brings the case within the exception above alluded to) it will expire later by the addition of the time of gestation in xdevo which follows upon such death (/>). On the other hand, however, in the case when the period at which the estate is limited to vest comprises no life or lives in being, it is not allowed to exceed twenty-one years from the time when the limitation is created {<]) . Such being the rule, in these different cases respectively, as to the latest period at which an estate by way of execu- tory use is allowed to vest, — we have now to add that it has been long established as a general principle, and one not applicable to executory uses only, that the law abhors a perpetuity (r) ; that is (according to the usual meaning of the term) any limitation, either for a legal or for an equitable interest, by way of executory use, or otherwise, of such a nature as to lead to the possibility, if it were allowed, of making a future estate vest at a later period than is warranted by such rule ; and that it uniformly annuls every such limitation («). Nor is this principle Palmer, 10 Bing. 140; S. C. 7 " concealment, were bom under an Bligli, N. S. 202; Gilbertson v. " unfortunate constellation ; for as Richards, 5 H. & N. 453. ' ' soon as they have been brought ( p) 2 Bl. Com. 1 74. See also Long ' ' in question, judgment has always r. Blackall, 7 T. R. 100 ; Wilkinson "been given against them, and V. South, ibid. 5o8; Cadell «. Pal- "none at any tune given for mer, 10 Bing. 140 ; S. C, 7 Bligh, " them." N. S. 202 ; Stuart v. Cockerell, Law (.s) Long v. Blaokall, ubi sup. ; Rep., 7 Eq. Ca. 363. Doe v. Ewart, 7 Ad. & EU. 648 ; (ry) Palmer v. Ilolford, 4 Russ. CadcU r. Palmer, ubi sup. ; Gil- 403 ; 1 Jarman on Wills, p. 205. bertson v. Richards, 5 H. & N. (/•) Bl. Com. ubi sup. It is said 453. It has boon doubtful whether in 10 Rep. 113 b, that " perpetui- the doctrine which annuls a limita- " ties, monopolies, and patents of tion on the ground of its tending CH. XVni. — OF CONVEYANCES TINDER STATUTE OF tTSES. 00^ confined to dispositions of the freehold. It applies also to terms of years and to personal property (/) . And by the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 10, it has been recently enacted, with regard to instruments coming into operation on or after the 1st January, 188-3, that an executory interest to take effect in default of issue, or on failure of the issue, of the tenant of the exe- cuted estate, shall become void as soon as any of such issue attains the age of twenty-one years. In connection with the subject of the rule against per- petuity, we may notice here the state of the law with respect to the accumulation of the income of property, whether real or personal, even when the period allowed by that rule is not exceeded. A remarkable instance having occurred, in which, to secure an immense fortune to his distant descendants, a testator had recourse to the expedient of directing the income of his property to be accumulated during tlie lives of all his children, grandchildren and great-grandchildren, who were living at the time of his death, for the benefit of some future descendants to be living at the death of the survivor (thus keeping ^\dthin the rule as to executory interests above laid down) ; it was thought expedient to put a check, for the future, on dispositions of this description {n). It was consequently to a perpetuity, applies to remain' and making void such limitations dcis. Fearue, by Butler, p. 502, is to a double unborn life is essen- as f oUows : "If lands be limited tially different from the rule of " to a person in esse, with re- perpetuities, still there is a com- ' ' mainder after his decease to his mon principle at the bottom of each "unborn children, and afterwards rule, and the two rules have also " to the children of such uaborn the same common object. " children, this last remainder is {t) See Fearne, Cont. Rem. pp. " absolutely void." (See also Chal- 320,371; Atkinson c. Hutcliinson, lis V. Doe d. Evans, 18 Q. B. 231, 3 P. Wms. 262. and Cattlin v. Brown, 11 Hare, («) This was the case of Mr. Thel- 375.) And although the opinion lusson's will, as to which see Feame, which now obtains is, that the rule by Butler, p. 436, (n.) The property limiting the creation of contingent is said to have consisted of lauded remainders to a single unborn life estates of about £4,000 a year, and 5G0 RK. ir. or rights of property. — pt. i. things real. provided by act of parliament (39 & 40 Geo. III. c. 98), commonly called the Thellusson Act, that no such ac- cumulation shall be allowed for a longer term than the life of the grantor, or twenty-one years from the death of the grantor or testator, or during the minority of any person living or iti ventre sa mere at the death of such grantor or testator, or during the minority only of any person who, under the uses or trusts of the instrument directing such accumulation, would for the time being, if of full age, be entitled to the income so directed to be accumulated : and, further, that where any accumu- lation is directed contrary to the Act, such direction shall be void, and the income daring the time the property is directed to accumulate contrary to the Act, shall go to such person as would have been entitled thereto, if no such accumulation had been directed (,r). But the Act does not extend to any provision for payment of debts, or for raising portions for children, or to any direction touching the produce of wood or timber (y). personalty of above half a million ; Dom. Froc, 28 L. J. (Ch.) 505; and the probable amount of the Macj)herson v. Stewart, ib. 177 ; accumulated fund was estimated at Simmons v. Pitt, Law Rep., 8 above £19,000,000. Ch. App. 978; Jagger v. Jagger, (.r) On the construction of this 25 Ch. Div. 729. part of the statute, see the autho- {y) As to these exceptions, see rities cited in 1 Smith's Leading Halford v. Stains, 16 Sim. 488 ; Cases, p. 186. See also the follow- Edwards r. Tuck, 3 De Gex, M. ing among other recent cases : & G. 40 ; Drewett v. Pollard, 27 Cui-tis V. Lukin, 5 Beav. 147; Beav. 196; Clulow's Trusts, 28 Boughton V. James, 1 Coll. 26 ; L. J. (Ch.) 696 ; Varlo v. Faden, Scarisbrick v. Skclmersdale, 17 29 L. J. (Ch.) 230 ; Matthews r. Sim. 187; Williams v. Lewis, in Keble, Law Rep., 3 Ch. Ajip. 691. { ( 561 ) CHAPTER XIX. OF CONVEYANCES BY TENANTS IN TAIL, AND MARRIED WOMEN. The ordinary conveyances at common law, and also those under the Statute of Uses, are capable of being applied to transfer the interests of tenants in tail and of married women : but as they are not effectual for these purposes, except by virtue of certain acts of parliament distinct from the Statute of Uses, nor without observing the solemnities which those Acts prescribe, — they may therefore properly be considered, when applied to either of these purposes, as constituting a separate class of conveyances by force of the statute law. Though a tenant in tail has an estate of inheritance, yet by none of the conveyances hitherto examined, if in their simple form, that is, unaccompanied with the solemnities above referred to, can an indefeasible interest be granted by him beyond the period of his own life — except with regard to leases for terms not exceeding ttcenfij-one years, and this only under certain limitations and qualifications which have been noticed in a former place (a) : for what- ever estate he grants, must either determine with his life, or at least is liable to be defeated, after his decease, by his issue, or in default of issue, by the remainderman or rever- sioner. And again, a married woman, or (as she is techni- cally called) a feme covert, is not capable by any of these conveyances, in their simple form {h), to make alienation of her lands and tenements (except as regards her interest {a) Vide sup. p. 252. {h) 2 Bl. Com. 292. \()\.. I. () () 562 BK. IT. OF RIGHTS OF PROPERTY. — PT. I. THINGS R,EAL. in property settled to her separate use), for any estate whatever, or to subject them to any charge (c). These incapacities result indeed, in the two cases, from very different causes. That of the tenant in tail is by the effect of the Statute de Bonis, passed to protect the interest of those in succession and expectancy, in the case where land is given to a man and the heirs of his body {d) ; but the incompetency of the feme covert is a personal one, and is imposed upon her by the common law (with other similar disabilities) in consecjuence of her being subject to the control of her husband, and presumably deprived of her freedom of agency. In both cases, however, notwith- standing the general rule of restriction, the law has long allowed a more ample power of alienation to be exercised through the medium of particular methods of assurance ; in former times by fines and recoveries, which were alto- gether of a special nature, and now by any of the ordinary conveyances already examined, with the accompaniment only of certain forms or solemnities of a special kind. The mode of alienation, as regards tenant in tail and married women respectively, may be considered therefore as naturally forming one entire or consolidated subject, and has in fact been so treated by the legislature. This branch of law is chiefly regulated by the 3 & 4 "Will. IV. c. 74, the statute for abolishing Fines and Ee- coveries : by the provisions of which, a tenant in tail is empowered, in such methods as therein mentioned, to bar the estate tail (as it is commonly expressed), that is, to grant the land entailed as a fee simple absolute (or for any less estate), indefeasible by his issue, or by any ulterior claimants. And a married woman may also, by such means (c) The restriction on a feme co- convey to others. And such acts Tert's power of alienation does not as these may be done by her with- extend, however, to the case where out the concurrence of her husband. Bhe conveys in execution of a mere Co. Litt. by Harg. 112, n. (3). power or authonly ; or in perform- [d) 13 Edw. 1, c. 1 ; vide sup. ance of a condition, as where land p. 242. is vested in her on condition to en. XIX. — OF CONVEYANCES BY TENANTS IN TAIL, ETC. 563 as are specified in tlie same Act, disj^ose, with her hus- band's concurrence, of any estate which she alone, or he in her right, may have, as fully and elfectually as if she were a feme sole {e) . The modes of proceeding to be adopted for these purposes are (as already stated) new, and by way of substitution for the antient methods of fine and recovery (/') ; which being now abolished, and of a character besides peculiarly abstruse and uninviting, we would gladly pass by without further notice. The learn- ing, however, which they involve, is still so material to the history of existing titles, and even to the correct apprehension of the present system, that they cannot with propriety be left unexamined; and before we attempt to give any fuiiher account of the substituted methods, the nature of a fine, and also of a recovery, shall first be explained. Both of these were of the class of conveyances by matter of record ; and both consisted of fictitious suits in the Court of Common Pleas at Westminster, in which the intended alienee was supposed to recover the estate by process of law. In their origin, indeed, they were actual suits commenced at law for the recovery of the possession of land ; but being found competent to confer a title, in cases where the ordinary conveyances would not sufiice, they were at length adopted as mere means of transfer between persons not really standing in the relation of adverse litigants (g). It will be necessary, however, to consider them successively and in detail. And, first, of Fines. [Fines were so called, because they put an end, not only to the suit then commenced, but also to all other suits and controversies concerning the same matter (//) . («) 3 & 4 Will. 4, c. 74, s. 77. is said, " Xon in regno Anglian pro- (/) Sect. 2. xideatiir vel sit aliqua securitas major {g) 2 Bl. Com. 349, 357. seu solennior per quam aliquis vel (/() See 2 Roll. Abr. 13, wliere it oliqtii stntnm certiorem /inltere possif, c) o 2 604 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [Thej were assurances of equal antiquity with tlie first rudiments of the law itself ; are spoken of by Grlanvil and Bracton, in the reigns of Henry the second and Henry the third, as things then well known and long established {i) ; and instances are produced of them even prior to the Norman invasion (/i). So that the Statute 18 Edw. I., called Modus levandi Fines, did not give them original, but only declared and regulated the manner in which they should be levied or carried on.] And that was as follows : 1. The party to whom the land was to be conveyed, or assured, commenced an action or suit at law against the intended vendor, (generally an action of covenant,) by suing out a writ denominated, from its initial words, a writ of praecipe quod teneat conrentionem (/) ; the foundation of which was a supposed agreement or covenant that the defendant should convey the lands to the plaintiff : on the breach of which agreement the action was brought. On this writ, there was due to the crown, by antient preroga- tive, a, primer fine, or a noble for every five marks of land sued for; that is, one tenth of the annual value (m). The suit being thus commenced, then followed, 2. The licentia concordandi, or leave to agree the suit {)i). For as soon as the action was brought, the defendant, knowing himself to be in the wrong, was supposed to make overtures of peace and accommodation to the plaintiff, by whom they vel ad statum siium verificandum ali- vitiis. (Finch, L. 278.) quod solennius testimonium producere, {m) 2 Inst. 511. quam finem in curia domini regis leva- [n) It seems doubtful whether turn; qiii quidem finis sic vocatur, eo this is the true principle on which quod finis et consummatio omnium the licence was required ; for it is placitorum esse debet; et hdc de causa said that, in the times of strict providebatur." feudal jurisdiction, if a vassal had (i) Glan. 1. 8, c. 1 ; Br. 1. 5, t. 5, commenced a suit in the lord's 0. 28, 8. 7. court, he could not abandon it {k) Plowd. 369. without leave ; lest the lord should (/) A fine might also be levied be deprived of his perquisites for on a " writ oi mesne,^' oi warrantia deciding the cause. (Robertson, chartee or dc consiietudinibus et ser- Hit-t. of Charles V., Sect. I.) CII. XIX. — OF CONVEYANCES BY TENANTS IN TAIL, ETC. 565 were accordiDgly accepted ; but having, upon suing out the writ, given pledges to prosecute his suit, which he endangered, if he now deserted it without licence, he there- fore appKed to the court for leave to make the matter up. This leave was readily granted ; but, for it, there was also another fine due to the king, called the hinges silver, or sometimes the post fine with respect to the primer fine before mentioned. And it was as much as the primer fine and half as much more, or lO.s. for every five marks of land; that is, three-twentieths of the supposed annual value (o). 3. Next came the concord, or agreement itself, after leave obtained from the court ; and this was usually an acknow- ledgment from the deforciants (or those who kept the other out of possession), that the lands in question were the right of the complainant. And from this acknowledg- ment, or recognition of right, the party levying the fine was called the cognizor, and he to whom it was levied the cognizee. The acknowledgment was to be made in the Court of Common Pleas — either openly in the court, or else before one of its judges, or (in the country) before two or more commissioners empowered by a special autho- rity, called a writ of dcdimuspofcsfaton ; and these judges and commissioners were required by statute 18 Edw. I., to take care that the cognizors were of full age, sound memory, and out of prison. And if there were any feme covert among the cognizors, she was privately examined, whether she did it willingly and freely, or by compulsion of her husband. By these acts, all the essential parts of a fine were completed ; and if the cognizor died the next moment after the fine was acknowledged, provided it were subsequent to the day on which the writ was made returnable, still the fine was to be carried on in all its remaining parts (/)). Of these the next was, 4. The note of the fine, which was only an abstract of the writ of covenant, and of the concord ; naming the parties, the (o) 5 Rep. 39; 2 Inst. 511 ; slat. {p) Price r. Davies, Comb. 71. 32 Goo. 2. c. 14. 5GG 15K. II. OF lUGliTS OF PROPERTY, — PT. I. THINGS REAL. parcels of land, and the agreement : and, by direction of the statute 5 Hen. IV. c. 14, this was to be enrolled of record in the proper office. 5. The fifth and last part was the foot of the fine, or conclusion of it : which included the whole matter ; and recited the parties, and the day, year, and place when, where, and before whom it was acknow- ledged or levied. Of this conclusion, there were inden- tures made and engrossed at the chirographer's office, and delivered to the cognizor and the cognizee ; usually beginning thus : " Mcec est fijialis conmrcUa, this is the final agreement," and then reciting the whole proceedings at length. -And thus the fine was completely levied at common law. To render the fine more universally public, and less liable to be levied by fraud or covin, it was directed by 4 Hen. YII. c. 24 (in confii-mation of a previous statute), that a fine, after engrossing, should be openly and solemnly read and proclaimed in court (during which all pleas should cease), sixteen times ; viz., four times in the term in which it was made, and four times in each of the three succeed- ing terms ; and these proclamations were indorsed on the back of the record ((7) . Fines thus levied were of four kinds : — 1. What in our law-French was called a fine mv cognizance cle droit come ceo que il ad de son don ; that is, a fine iipon acknowledg- ment of the right of the cognizee, as that which he hath of the gift of the cognizor. This was the best and surest kind of fine ; for thereby the deforciant, in order to keep his covenant of conveying to the plaintiff the lands in question, and at the same time to avoid the formality of an actual feoffment and livery, acknowledged in court a former {q) The number of proclamations they -were actually made, it was required was, by 31 Eliz. c. 2, re- declared by 11 & 12 Vict. c. 70, that duced to one in each of the three all fines theretofore levied in the terms. We may here observe, that Court of Common Pleas should be in order to avoid the trouble and deemed to have been levied with expense of procuring evidence that proclamations. CH. XIX. — OF CONVEYA^X■ES BY TENANTS IN TAIL, ETC. 567 feoffment to have been made by him to the plaintiff. This fine Avas therefore said to be a feoffment of record ; the livery, thus acknowledged in court, being equivalent to an actual delivery : so that this assurance was rather a con- fession of a former conveyance, than a conveyance then originally made ; for the deforciant or cognizor acknow- ledged the right to be in the plaintiff, or cognizee, as that which he had de son don, of the proper gift of himself, the cognizor. 2. A fine sur cognizance de droit tantum, or upon acknowledgment of the right merely ; not with the circum- stance of a preceding gift from the cognizor. This was commonly used to pass a revcrsionanj interest which was in the cognizor. For of such reversions there could be no feoffment {i.e. no do)>) supposed, as the possession during the particular estate belonged to a third person (r). It was worded in this manner, " that the cognizor acknowledges " the right to be in the cognizee, and grants for himself " and his heirs, that the reversion, after the particular " estate determines, shall go to the cognizee " («). 3. A fine mr concessit was where the cognizor, in order to make an end of disputes, though he acknowledged no precedent right, 3'et granted to the cognizee an estate de novo, usually for life or years, by way of supposed composition. And this might be done, reserving a rent or the Kke, for it operated as a new grant {t). 4. A fine sur don grant ct render was a double fine, comprehending the fine sur cogni- zance de droit come ceo, ^x. and the fine sur concessit, and might be used to create particular limitations of estate ; whereas the fine sur cognizance de droit come ceo, 8^c., con- veyed nothing but an absolute estate, either of inheritance, or at least of freehold (»). In this last species of fine, the cognizee, after the right was acknowledged to be in him, granted back again, or rendered to the cognizor, or perhaps ('•) Danver's case, Moore, 629. estates, as for life or years, thoiigh («) West. Symb. p. 2, s. 95. it ixiight be also used to convey the {t) lb. s. 66. This was commonly fee simple. (Biu't. Compcnd. 24.) used for the creation of smaller («) Hunt v. Bourne, Salk. 340. 568 BK. II. OF KIGHTS OF PROPERTY. PT. I. THINGS REAL. to a stranger, some other estate in tlie premises. But, in general, tlie first species of fine snr cognizance de droit come ceo, (^"c. was the most used. We are next to consider the force and effects of a fine, and these were principally as follows (.r) : 1. Like all other conveyances, it bound the parties thereto, and also all ^^ prides," that is, persons deriving title under the parties ; and this, whether levied with pro- clamations or not {//). But in an important respect, it had a force peculiar to itself ; for if one of the parties thereto was a married woman (and consequently incapable to aliene by an ordinary conveyance), she would still be bound by the fine ; and (supposing her husband to concur in it) it would effectually pass any estate, or bar any right of dower that she might have in the lands therein comprised (s) . And this peculiarity was justified by the circumstance that the court would not allow a fine, affecting her interest, to pass without privately examining her as to her voluntary consent ; which removed the general sus- picion of compulsion by her husband (a). 2. A fine with ^proclamations bound not only parties and privies, but even strangers (that is, persons not parties or privies), if they failed to put in their claims within the time allowed by law ; and if during all that period they were subject to no legal disability sufficient to ex- cuse their acquiescence {b). It was in reference to this (.(•) A fine had several other {z) 5 Cruise, Dig. 82, 154, 156. effects, the enumeration of which («) Bl. Com. ubi sup. ; Cruise, will be foimd in the First Real ubi sup. This was by the statute Pi'operty Report, p. 21 ; and see 18 Edw. 1, De moclo levandi fines. Co. Litt. by Harg. 121 a, n. (1). [b) 2 Bl. Com. 354. There were (y) 2 Bl. Com. 355 ; see 5 Cruise, antiently four methods of claiming Dig. 133, 159, 202. It did not, so as to avoid being concluded by a however, unless levied with pro- fine: 1. By action ; 2. By entering clamationa, bar the issue in tail of such claim on the record at the foot their right to bring an action of of the fine ; 3. By entry on the formedon. (Hunt i'. Bourne, Salk. land; 4. By continual claim. But 340; Doe d. Thomas v. Jones, 1 the second of these was not in force Tj-rw. 517.) after the statute of Henry 7. The CU. XIX. — OF CONVEVANCES BY TENANTS IX TAIL, ETC. 560 property of a fine, (which belonged to it from the remotest period of legal history,) that rights are said in our books to be barred by fine and non-claim (c). The doctrine, indeed, was once abolished by a statute made in 34 Edw. III. c. 16, which admitted persons to claim and falsify the fine at any indefinite distance of time {d). But by 1 Richard III. c. 7, and 4 Hen. VII. e. 24, the bar was again re- stored, though the time of claim was extended {e) ; and after the latter statute, and until the modern abolition of these assurances altogether, the state of the law was as follows, — that by a fine, when duly provlaimcd, the right of all strangers whatever was bound, unless they made claim by way of action, or lawful entry (not within one year and a day, as at the common law, but) within five years after proclamation made {/) ; but femes covert, infants, prisoners, persons beyond the seas, and such as were not of sane mind, had a further space of five years allowed to them and their heirs after the death of their husbands, or their attaining full age, recovering their liberty, returning to England, er being restored to their right mind {g). By the statute 4 Anne, c. 16, it was also provided, in cases where the claim was made hy entry, that it should be of no avail unless an action was brought within one year afterwards, to try the right of the claimant, and unless the same were prosecuted with effect. It is to be observed, however, that, in order to bar by non-claim persons who were not parties or privies, it was necessary that the per- son levying the fine should be seised of the freehold, either by right or by wrong {li) : for if he had nothing in the land, or if his possession were merely as tenant for a term of years or other chattel interest, the fine might be avoided time for making the claim was a (e) See Co. Litt. by Hargf. 121 a, year and a day after the fine levied. n. (1). As to proclama'ions, vide sup. p. (/) 4 Hen. 7, c. 24 ; Davies v. 566. Lowndes, 5 Bing. N. C. 172. (c) 2 Bl. Com. 354. (•) ; but the learning relative to discontinuances, however effected, became of no account, (so far n,% future transactions were concerned,) by the effect of a statute passed a short time previously to the Fine and Recovery Act, viz. the 3 & 4 Will. IV. c. 27, which pro- vided (sect. 29) that no discontinuance should thereafter avail to take away a right of entry. 5. A fine " sur cognizance come ceo, i^r." levied by a tenant for life in possession, worked a forfeiture, if for a greater estate than the law entitled him to make ; and con- sequently destroyed the contingent remainders (if any) expectant on his life interest (s). The same result as regards forfeiture also followed, where such fine was levied by a tenant for a term of years (f) . Secondly, of Recoveries. A recovery — or a common recovery as it was also called, {p) There could be no discon- 274; 5 Cruise, Dig. 203, 236; tinuance of things lying in grant. 2 Cruise, Dig. 361. It is to be (Co. Litt. 332 a ; 5 Cruise, Dig. observed, that though a Jinc sur 236.) cognizance, ^-c. generally implied a ifl) Co. Litt. by Butler, 331, n. conveyance in fee, it might be for (1). life only. (Hunt v. Bom-ne, SaUr. (r) Vide sup. p. 465. 340.) (.«) Vide sup. p. 331 ; 2 Bl. Com. {() Burt. Compend. 318. 572 BK. 11. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. to distinguish it from a real adjudication in an action ^x) — • difi'ered from a fine, in this general point of view, that it supposed a suit not immediately compromised, hut carried on through every regular stage of proeeediog (//). Its nature and progress were as follows. [Let us, in the first place, suppose Daniel Edwards to have been tenant of the freehold, for example, tenant in tail in possession ; and desirous to suffer a common re- covery, in order to bar all entails, remainders and rever- sions, and to convey the same in fee simple to Francis Golding. To effect this, Golding was to bring an action against him for the land ; and he accordingly sued out a writ called a praecipe quod reddat. In this writ, the demandant Golding alleged that the defendant Edwards (here called the tenant) had no legal title to the land, but that he came into possession of it after one Hugh Hunt had turned the demandant out of it. The subsequent proceedings were made up into a record or recovery roll, in which the writ and complaint of the demandant were first recited; whereupon the tenant appeared, and called upon one Jacob Morland, who was supposed, at the ori- ginal purchase, to have warranted the title to the tenant. And thereupon he prayed that the said Jacob Morland might be called in to defend the title which he so war- ranted. This was called the roucJier [cocatio, or calling of Jacob Morland) to n-armuty, and Morland was called tlie vouchee. Upon this, Jacob Morland, the vouchee, appeared, was impleaded, and defended the title. Where- upon Golding, the demandant, desired leave of the com-t to imparl, or confer with the vouchee in private, which was usually allowed him as a matter of course. And soon afterwards the demandant Golding retm'ned to court, but Morland the vouchee disappeared or made default. Where- upon judgment was given for the demandant Golding (tlienceforth called the recoreror) to recover the land in question against the tenant Edwards, who was then the (.r) 5 Cruise, Dig. 269. (//) 2 Bl. Com. 357. CH. XIX. — OF COXVEYAXCES BY TENANTS IN TAIL, ETC. 573 \_rccoreree ; and Edwards liad judgment to recover of Jacob Morland land of equal value, in recompense for the land so warranted by him, and lost by his default ; which was agreeable to the doctrine of warranty we have before men- tioned {z). This was called the recompense, or recovery in rahie. But Jacob Morland having no land of his owd, being usually the crier of the court (who from being thus frequently vouched was called the common vouchee), it was plain that Edwards had only a nominal recompense for the land so recovered against him by Grolding ; which land was then absolutely vested in the said recoveror, by judg- ment of law, and seisin thereof was delivered to him by the sheriff of the county. So that this collusive recovery operated merely in the nature of a conveyance in fee simple from Edwards the tenant in tail, to Golding the purchaser. The recovery above described was with a single voucher only, but sometimes it was with double, treble, or further voucher, as the exigency of the case might require. And indeed, in modern times, it was usual alwaj^s to have a recovery with double voucher at the least, by first conveying, where the person whose estate tail was intended to be barred was immediate tenant in tail, an estate of freehold to any indifferent person against whom the praecipe was brought, (which was called making a tenant to the^jrfec?);^) ; and then the tenant to the jJrcecipe vouched the tenant in tail, who vouched over the common vouchee. For if a recovery was had immediately against a tenant in tail, it barred only such estate in the premises of which he was then actually seised ; whereas, if the re- covery were had against another person, and the tenant in tail were vouchee, it barred every latent right and interest which he might have in the land recovered (a). But where there was already a tenant for life in possession, with remainder over in tail, of course no other tenant to (z) Vide sup. p. 490. (a) Bro. Ab. tit. Taile, 32 ; Plowd., Manxel's case [8]. 574 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [the prcecipe was required to be made, in order to effect a voucher of the tenant in tail. If Edwards, therefore, were tenant of the freehold in possession, and John Barker were tenant in tail in remainder ; here Edwards first vouched Barker, and then Barker vouched Jacob Morland, the common vouchee ; who was always the last person vouched, and always made default : whereby the demandant Golding recovered the land against the tenant Edwards, and Edwards recovered a recompense of equal A'alue against Barker, the first vouchee ; who recovered the like against Morland, the common vouchee, against whom such ideal recovery in value was always ultimately awarded.] In all recoveries it was necessary that the recoveree should be seised of the freehold in possession, else the re- covery was void (i). For all actions to recover the seisin of land were required to be brought against the actual tenant of the freehold; otherwise the suit would lose its effect, since the freehold could not be recovered of him who had it not (c). And though these recoveries were in themselves fabulous and fictitious, yet it was necessary that there should be adores fahulce, and that these should be properly qualified. From this doctrine resulted two important corollaries ; first, that where the object was to vouch a tenant in tail in possession, instead of bringing \he prcBcipe against him, it became necessary that he should previously make a tenant to the prcvci2)e in manner already explained, — that is, [b) Pigot, 28. 4 WiU. 4, c. 27. It may further be (c) This reqiiirement, it will be remarked that an ejectment (which observed, applies only to actions has long been the ordinary action "to recover the seisin;" that is, real for the recoveiy of land) has never, actions, to which class the action, on in its form, been brought to recover which the recovery was foirnded, the seisin; and accordingly it has belonged. And (as will be seen always been brought against a hereafter) almost the whole of the tenant, whether seised of the free- real actions were abolished by 3 & hold or not. CH. XTX. — OF CONVEYAXCES BY TENANTS IN TAT I,, ETC. 0(0 convey a freehold estate in possession in the land to some other person, so as to qualify the latter to sustain the character of tenant in the action (d). The second consequence was, that a tenant in tail in remainder, expectant on an estate of freehold, could not resort to a recovery to bar the entail, without the concur- rence of the person in whom that precedent estate was vested ; for unless the latter joined in the proceedings, there could be no sufficient tenant to the prcecipe, he alone possessing the necessary qualification. But the nicety once thought to be requisite in conveying the legal free- hold, in order to make a good tenant to the pnecipe, was lessened by the pro\'ision of 14 Geo. II. c. 20 (e) ; which enacted, with a retrospect and conformity to the antient rule of law, that though the legal freehold were vested in lessees, yet those who were entitled to the next freehold estate in remainder or reversion might make a good tenant to the prcecipe ; that though the deed or fine which created such tenant were subsequent to the judgment of recovery, yet if it were in the same term, the recovery should be valid in law ; — and that though the recovery itself did not appear to be entered, or were not regularly entered on record, yet the deed to make a tenant to the prcecipe, and declare the uses of the recovery, should, after a possession of twenty years, be sufficient evidence on behalf of a pur- chaser for valuable consideration, that such recovery was duly suifered. In addition to which, provision was at a later period made by 3 & 4 Will. IV. c. 74, establishing the validity of recoveries that had been suffered previously to the statute, in several other cases where they were before subject to fatal objection (/). {d) Vide sup. p. 573. 10. See also 5 & 6 Vict. c. 32, with [e) As to this Act, see Pigot, 41, reference to the validity of certain &c.; 1 Prest. Convey, pp. 61 ctseq.; recoveries and fines suffered and Taylor t'. Horde, 1 Burr. 115. levied in the abolished Com-ts of (/) 3 & 4 Will. 4, c. 74, ss. 8, 9, Sessions, in Wales and Chester. 576 BK. 11. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. As to the force and effect of recoveries, supposing them to be suffered in due form, they operated, 1st. To pass to the recoveror an estate in fee simple absolute ; and thereby to bar not only the estate tail itself, but all remainders and reversions expectant thereon, and all executory limitations and conditions whatever, to which it had been subject (//). This was not by virtue of any legislative enactment, but by construction of the courts of law, as explained more at large in a former chapter {h). The reasons, which really swayed the judges in allowing this effect to a common recovery, have been also before stated {i) ; but the ground on which they attempted to justify the doctrine was the supposed recompense in value awarded, in the result of this proceeding, to the tenant in tail. For it was said, that any lands which he might obtain from the common vouchee would supply the place of those which he lost by the recovery, and would descend to the issue in tail (/.•). Yet it is ob\'ious that this recom- pense was merely ideal ; and even if realized, it was held that it would not extend to reversioners nor (in some cases) to those in remainder (/) ; and on the whole, there- fore, it is impossible not to concur in the opinion expressed by Chief Justice Willes, that it is futile to endeavour to vindicate the principle of a common recovery (;;?). There were some cases, it is to be observed, in which this pro- ceeding would not avail to the purpose above described ; for by statute 11 Henry VII. c. 20, no woman, after her husband's death, unless with the concurrence of those in reversion, could suffer a recovery of lands entailed on her by her husband, or on her and her husband by any of his ancestors ; which was called an estate tail ex j^rovhione firi{ii). And it was also provided by 34 & 35 Henry VIII. {(/) See 2 Bl. Com. 361. 669 ; Bl. Com. ubi sup. (//) Vide sup. p. 248. {m) 1 Wils. 73. See Bl. Com. (i) Ibid. ubi sup. n. by Chi'istian. (;!.•) 2 Bl. Com. 360. {>/) As to this statute, see 5 (/) Lacy V. AVilliams, 2 Salk. Cruise's Dig. 399 ; Kirkman v. CH. XIX. — OF CONVEYAKCES BY TENANTS IN TAIL, ETC. 577 c. 20, that no recovery had against tenant in tail of the king's gift, whereof the remainder or reversion was in the king, should bar such estate tail, or the remainder or .reversion of the crown (o). 2. A recover}^, like a fine, would bind a married woman when she became a party to it with her husband's con- currence ; and, as in the case of a fine, she was privately examined by the court in such cases, to ascertain that she acted Anthout compulsion {p). 3. And lastly, a recovery suffered by a tenant for life worked a forfeiture of the particular estate, and by con- sequence destroyed all contingent remainders expectant thereon (q). It was, however, expressly provided by 14 Eliz. c. 8, that a recovery so suffered, without the consent of the persons in reversion or vested remainder, should as against such persons be utterly void (r). Ha-sdng now considered fines and recoveries in a separate point of view, it will be necessary to direct oui' attention shortly to an incident common to both species of assurance, viz., the deed to lead or to declare their uses. For as the most usual fine sur cognizance de droit come ceo, &c., con- veyed an absolute estate without any limitations to the cognizee ; and as common recoveries did the same to the recoveror ; these assurances could not in themselves be made to answer the purposes of family settlements, wherein a variety of designation and arrangement is often ex- pedient. The fine or recovery itself, like a power once gained in mechanics, was applied, therefore, through the medium of nses, to give efficacy to an infinite variety of movements, in the vast and intricate machine of a volu- Thompson, Cro. Jac. 474; et post, {p) 5 Cruise, Dig. 392. p. 587, n. ('/) Doe d. Davies v. Gatacro, 5 (o) See Co. Litt. 372 ; Perkins Bing. N. C. 609. V. Sewell, 1 Bl. Rep. 654 ; Duke {r) Besides those noticed in the of Grafton v. Birmingham Railway text, a recovery had other effects ; Company, 5 Bing. N. C. 27 ; et as to which, see the First Real post, p. 587. Property Report, p. 22. VOL. I. P P 578 BK. II. Of RIGHTS OF PROPERTY. — PT. I. THINGS REAL. minous family settlement (.s). And if these deeds were made previous to the fine or recovery, they were called deeds to lead the uses ; if subsequent, deeds to declare them. As, if A. (tenant in tail, with reversion to him- self in fee) wished to settle his estate on B. for life, remainder to C. in tail, remainder to D. in fee, — he had no power of doing so effectually, while his own estate tail was in being. He therefore usually, after making the settlement proposed, covenanted to levy a fine to (or if there were any intermediate remainders, to suffer a recovery in favour of) E., and directed that the same should enure to the uses in such settlement mentioned. This, then, was a deed to lead the uses of the fine or recovery ; and the fine when levied, or the recovery when suffered, would enure to the uses so specified, and no other. For though E., the cognizee or recoveror, had a fee simple vested in himself by the fine or recovery, yet, by the opera- tion of this deed, he became a mere instrument or conduit- pipe, seised only to the use of B., C. and D, in successive order ; which use was executed immediately by force of the Statute of Uses [t). Or, if a fine or recovery were had without any pre\dous settlement, and a deed were afterwards made between the parties, declaring the uses to which the same should bo applied ; this would be equally good as if it had been expressly levied or suf- fered in consequence of a deed directing its operation to those particular uses. For by the statute 4 & 5 Anne, c. 3, indentures to declare the uses of fines and recoveries, made after the fines and recoveries had and suffered, were made good and effectual in law ; and the fine and recovery were to enure to such uses, and be esteemed to be only in trust, notwithstanding any doubts to the contrary, that had arisen on the Statute of Frauds, passed in the reign of Charles the second {u). The cumbrous fictions, of which a slender abstract only (s) 2 Bl. Com. 363. («) 29 Car. 2, c. 3. [t) Bl. Com. ubi sup. CH. XIX. — OF CONVEYANCES HY TENANTS IN TAIL, ETC. 579 lias been here given, constituted, in actual practice, a braneli of conveyancing of the most subtle, intricate, and costly character (,r). After being allowed for centuries to deform our jurisprudence, their inconvenience at length began to excite attention. AYith respect to recoveries, in particular, it was suggested long ago that thej' might be advantageously abolished ; and the tenant empowered to bar his estate tail, by the more simple expedient of a solemn deed to be enrolled in a court of record (//). It was not, however, until a comparatively recent period, that this great improvement was carried into effect ; and for its realization the public is indebted to the commission appointed in the ninth year of King George the fourth, to revise the laws relating to real property. At the sug- gestion of that body, and early in the succeeding reign, the 3 & 4 Will. IV. e. 74, was passed " For the abolition of " Fines and Eecoveries, and for the substitution of more " simple modes of Assm-ance." This statute — to which wo had before occasion briefly to advert (c) — in the first place enacted, that after the 31st December, 1833, no fine should be levied or recovery suffered of lands of any tenm-e, with the exception of such as should then be in actual progress (a) ; and then proceeded to provide new methods for effectuating, in future, such of the results of these assurances as it was deemed right to preserve, viz., the barring of estates tail, and the passing or binding of the estates or interests of married women : while, on the other hand, it purposely omitted to appoint any substitute for them, so far as regards their effect in working a forfeiture, — or the bar by non-claim, or discontinuance, in the case of a fine. {x) It has been suggested that fault ; and the tiling in suit was our English lawyers borrowed these then as a matter of course adjudged expedients from the cessio injure of to the plaintiff. See Maine on the Roman law — wherein the plain- Antient Law, p. 289. titf claimed the subject of the pro- (y) 2 Bl. Com. 360. ceeding in the ordinary forms of a (s) Vide sup. p. 250. litigation; the defendant made dc- (a) 3 & 4 Will. 4, c. 74, s. 2. F p2 580 BK. ir. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. I. In reference to the first of the results effectuated (the barring of estates tail), the enactment is in substance as follows {h) : that every actual tenant in tail(c), whether in possession, remainder, contingency or otherwise, shall have full power (subject to the provisions hereinafter men- tioned as io protectorship) to dispose of the lands entailed (r/), for an estate in fee simple absolute, or for any less estate, as against all persons claiming under the estate tail, or in respect of any ulterior estate (c) . And in lieu of a fine and recovery, it directs that such disposition may be made by any of the assurances (a will only excepted) which would have sufficed for the purpose, supposing the estate to have been one in fee simple absolute ; so that the dis- position be an actual conveyance, and not one resting in contract only, and so that it be by deed, and inrolled in Chancery within six calendar months after execution (/). An estate tail in lands of freehold tenure — for copyholds are not to our present purpose {g) — may now consequently be barred as against the grantor himself, the issue in tail, and all others in remainder, reversion, or other expectancy (subject to the provisions as to protectorship before re- ferred to), by any of the conveyances (whether at common law or under the Statute of Uses) which have been dis- cussed in former chapters ; always supposing such convey- ance to be by deed, and by deed duly inrolled. The inrolment, indeed, is not essential in every case, it being [b) 3 & 4 Will. 4, c. 74, s. 15. {e) In tliis provision, the croun (c) The definition of "actual is expressly included (sect. 15). tenant in tail" (as the term is used (/) Sects. 40, 73. And (by sect. in this Act), is thus given, " the 41) if the assurance be a bargain tenant of an estate tail which shall and sale, it -ftdll, if enrolled in due not have been barred" (sect. 1). time in Chancery according to this {(l) The -word lands when used Act, be as valid as if it had been generally in this Act extends to all duly enrolled within the time pre- hcreditamcnts (except copyhold), scribed bj^ the statute 27 Hen. 8 ; and whether of the corporeal or in- as to which vide sup. p. 538. corporeal class. It extends also to [g) As to copyholds, vide post, copyhold, where accompanied by ex- bk. ii. pt. i. c. xxii. pressions denoting that tenure (ib.). ClI. XIX. — OF CONVEYANCES RY TENANTS IN TAIL, ETC. 581 dispensed with (as we mentioned in a former place) where the disposition is by way of lease not exceeding twenty- one years, to commence from the date thereof, or within twelve calendar months from the date ; and reserving thereby a rack-rent, or not less than five-sixths of a rack- rent (//). Supposing the inrolment (when required) to be made in due time (/), the deed takes effect from the execution (/.) ; but a subsequent deed, if first inrolled, will be entitled to priority (/). To understand the provisions as to protectorship, we must recollect, that though, by a fine, the issue might always be barred at pleasure, a common recovery (which alone had any effect as regarded those in remainder or reversion) was ineffectual when suffered by a tenant in tail not having an estate of freehold in possession, unless he obtained the concurrence of the person in whom the immediate freehold was vested {>n). Now this check would liave been entirely taken off, if the new statute, in abo- lishing recoveries, had proceeded simply to provide that the tenant in tail might, in future, bar all parties, through the medium of a deed inrolled. But it was not the design of the legislature to go so far. The restraint in question was merely the accidental consequence, it is true, of the fiction on which a recovery was built, and its general ten- dencies were useless and injurious ; but it happened, on the other hand, to secure one important object, that of affording protection to family settlements. For in these, it is usual to vest in the parent a life estate and to limit estates in remainder to the sons successively in tail, ex- pectant on the determination of such life estate ; and the doctrine, which required the concurrence of the immediate tenant of the freehold, put it out of the power of the eldest son (the first tenant in tail) to defeat the settlement, at his own pleasure, by a recovery; which he would otherwise ill) Vide sup. p. 252. [1) Ibid. \i) 3 & 4 WiU. 4, c. 74, s. 41. \m) Vide sup. p. 574. (/.■) Sect. 74. 532 BK. II. OF RIGHTS OF PROPERTY. PT. I. THI^^GS REAL. have always been in a condition to do, as soon as he attained the age of twenty-one. So far, therefore, as this object is concerned, it was deemed expedient that the sub- stitute provided by the Act in question (when used for the purpose of a common recovery, and not merely for the purpose of a fine,) should be subjected to a check of the same description as the recovery itself ; though, in other cases, the necessity for the concurrence of the person seised of the immediate estate of freehold was not retained. The specific provision to which we here refer is to tlie following effect (w) : that no disposition, by a person who is tenant in tail under a settlement, shall be effectual under the Act to bar any person but those claiming by force of the entail, unless it be made with the consent of the person who (within the meaning of the Act) is " owner " of the first estate of freehold, (or for years determinable on life or lives,) prior to the estate tail (o) : and the person whose consent is thus required, receives accordingly the appella- tion oi 23rotector of the settlement. This provision, however, it is material to remark, is expressly confined to the case where the prior estate is created hy the same settlement as the entail : for where it is constituted by a different assur- ance, the reason on which the protectorship is founded fails ; and the Act consequently leaves the tenant in tail to the free exercise of his power of disposition (7;). Where an assurance is executed by a tenant in tail, in such form and with such attendant ceremonies as the statute requires, it passes an indefeasible estate in fee simple absolute, or for life, or years, or otherwise, according to («) 3 & 4 Will. 4, c. 74, 8. 34. (3 & 4 Will. 4, c. 74, 8. 1), an estate (o) Sect. 22. The words of the confirmed or restored by the settle- Act are, "any estate for years de- ment (sect. 25), an estate resulting- " terminable on the dropping of to the settlor (sect. 22), and an ' ' a life or lives, or any greater estate by the curtesy, in respect of " estate, not being an estate for the estate tail, or of any prior " years, prior to the estate tail." estate created by the same settle - {p) It is to be observed, that ment (sect. 22), — are, respectively, an estate created by appointment, to be considered as ' ' created by the under a power in the settlrment settlement." CH. XIX. — OF CONVEYANCES HY TENANTS IN TAIL, ETC. 583 the nature of the limitation. But if it be executed with- out the consent of the protector, in a case where a pro- tector exists {q), its effect is only to bar the tenant and his issue in tail, and the rights of other persons claiming in expectancy on the estate tail are not affected (>•). An assiu'ance purporting to be in fee simple absolute, will therefore in such case convey no more than a base fee determinable on the failure of issue (-s) : though it is in the power of the tenant, by afterwards obtaining the con- sent of the protector, and making a new disposition thereon, to enlarge such base fee into a fee simple absolute {t). And in the particular case, when, for want of the pro- tector's consent, such base fee is created, and the imme- diate remainder or reversion in fee happens also to become united in the same person with the base fee, — the latter will q)>iO facto, and without any such consent or new disposition, enlarge into a fee simple absolute («). But whether the bar effected be general or partial only in its nature, it is to be understood that in all cases it operates without prejudice to the interests of other parties not claiming by force of, or in expectancy upon, the entail. It consequently leaves all estates prior to the estate tail undisturbed {x). Although, in general, the " owner " of the first prior estate (being of the kind already described) is made the protector of the settlement, yet we may remark, that there are many cases in which the qualification for the pro- tectorship is subject to more specific provision. For first, in certain cases arising on or before 31st December, 1833 (the date from which fines and recoveries are abolished), the person, who, under the old law, would have been the proper party to make a tenant to the prcecipe, is now, (?) See Bell v. Holtbj-, Law (.r) Sects. 15, 19. See also sect. 47 Rep., 1-5 Eq. Ca. 178. (as to rectification of disentailing (r) Sects. 15, 34. deeds), and Hall-Dare v. Hall- is) Sect. 1. Dare, 29 Ch. Div. 133; W. N. (0 Sects. 19, 35. 1885, p. 199. (h) Sect. 39. 584 BK. IT. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. without regard to any other rule of qualification, to be the protector (//). The Act also provides that the first prior estate of freehold or of years determinable on life or lives, shall not avail to confer the protectorship on any person, who takes that estate as lessee at a rent ; or as dowress, bare trustee, heir, executor, administrator, or assign (s), — with the exception, however, as to bare trus- tees, of such as, under any settlement made before the Act, would have been the proper parties to make a tenant to the praecipe [a) — the office being, in every case of exclusion, cast upon the owner of the next estate (if any) qualified to constitute a protectorship {h). Nor is the creation of the office always by the mere act of law. For the settlor himself is entitled, in the settlement creating the entail, to a^ppoint any person or persons in esse (not exceeding three in number, and not being aliens,) to act in this capacity (the tenant of the prior estate being included in the number or not, at the pleasure of the settlor) ; and also to insert in the deed a power for the substitution of others, in the event of the death or retirement of those originally nominated (r). The office is intended to be in every case a personnl one ; and therefore a protector does not lose his riglit to act in that capacity by a transfer of the estate in virtue of which it was acquired ; whether that transfer takes place by his own alienation, or by his other act or default (r/). But when the person who would otherwise be protector is incompetent by reason of insanity, the Lord Chancellor (or other person deputed to exercise the royal functions with respect to idiots and lunatics) is to become protector (y) 3 & 4 Will. 4, c. 74, ss. 29, Naturalization Act, 1870, which 30, 31. removes this incapacity (33 & 34 (z) Sects. 26, 27. Vict. c. 14, s. 2), would seem by (a) Sect. 31. implication to repeal quoad /loc the {b) Sect. 28. above exception as to the qualili- (c) Sect. 32. At the date of cation of a protector of a settle- this enactment an alien was not mcnt. capable of holding in England any (d) Sect. 22. real estate. But the clause in the CH. XIX. OF COXVEYAXCES R\ lEXAXTS IN TAIL, ETC. 585 in his stead : and where he, who would otherwise be protector, is disabled by treason or felony, the office is vested in Chancery ; to which latter jurisdiction it is also confided in some other particular cases (). When the object of the disposition is to bar the estate tail of a married woman, the same coui'se of proceeding is to be observed as in the case of other tenants in tail ; and the ceremony of acknowledgment (with all its attendant forms) is to be superadded (c). The proceedings relative to acknowledgment are made subject, as to some of their details, to the regulation of the Common Pleas ((/) and now of the High Court ; and (y) 19 & 20 Vict. c. 108, s. 73. on this subject arc subject to be (z) 3 & 4 Will. 4, c. 74, s. 80. relaxed should such indulgence (a) See Jolly v. Handcock, 7 seem proper. (See Re Hannah Exch. 820. Packer, Law Hep., 5 C. P. 424.) [b) Conveyancing Act, 1882 (45 By 17 & 18 Vict. c. 75 (passed & 46 Vict. c. 39), s. 7. to remove some doubts which had ((') Sects. 40, 79. arisen on the poiat), no deed ac- (d) Sect. 89. The Rules of Court kuowledged before a judge or com- en. XIX. — OF CONVEYANCES UY TENANTS IN TAIL, ETC. 589 the court is also empowered by order, in a summary way upon the application of the wife, and upon such evidence as to the court shall seem meet, to dispense (in every case where it shall appear reasonable to do so) with the concur- rence of the husband in her acts, whether in ban-ing an estate tail, or executing a deed for any other purpose (c). The latter provision, however, is made with an express saving of such rights as the misband may possess inde- pendently of the Act (_/'). Such are the substitutes now provided by the legislature, in lieu of fine and recovery. The superiority of the new methods is manifest at the first glance ; but, in order to obtain a clear idea of the extent and nature of the reform which was effected by the statute, it will be useful to advert to some of the specific points of difference between the present and the former system. Tlie most obvious improvement is, that, instead of apply- ing modes of assurance altogether peculiar and anomalous, to the case where a tenant in tail or a married woman is the conveying party, the law now enables them to pass their interests, by an instrument of the same description (in general) as is used in other alienations of real estate ; and thus establishes a greater uniformity in the methods of conveyance. Nor is this a benefit of small amount ; for all deviations from general rule engender difficulties, render the practice of the law less certain, and powerfully promote the purposes of chicanery. The forms now intro- missioner shall be impeached by Anderson, ib. 118; Ex parte Fish, reason only that such judge or com- 9 C. B. , N. S. TIT); lie Sarah Price, missioner was personally interested 13 C. B., N. S. 286; Re Alice in the transaction ; and by 45 & 46 Rogers, Law Rep., 1 C. P. 47; Vict. 0. 39, s. 7, a general provision Goodchild v. Dougal, ib. 3 Ch. D. to the like effect has been made. 650. The court has power, under (e) 3 & 4 Will. 4, c. 74, s. 91. this section, to authorize her to See Re Dixon, 4 C. B. 631 ; Ex dispose of copyhold. (Ex parte parte Taylor, 7 C. B. 1 ; Re Eden, Shirley, 1 Arnold, 584.) 28 L. J., 0. P. 4 ; Ex parte Ilaigh, (/) 3 & 4 Will. 4, c. 74, s. 91 ; 2 C. B., N. S. 198: Ex parte Fowke r. Draycott,29 Ch. Div. 996. 590 BK. 11. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. duced possess also tlie advantage of being incomparably clearer and simpler than those which they superseded. Considerable subtlety indeed attends a conveyance taking effect under the Statute of Uses ; but it is to be recollected that fines and recoveries (when taken in connection with their appendages, the deeds to lead or declare the uses) themselves operated as conveyances under the statute ; while at the same time they involved a fiction of the most intricate and artificial description, from which the substi- tuted assurances are exempt. To this it may be added (and the point is by no means of subordinate importance), that the substitutes are considerably less expensive than their predecessors ; the charges connected with a fine or re- covery (particularly the latter) having been so high as to have formed one of the most prominent reasons for their abolition. To pass from general to particular considerations, the former system was objectionable, from the necessity which it fre- quently occasioned of creating a icnanf to the prcee/pe ; for, besides the inconvenience of being obliged to make an actual transfer of the freehold, for this purpose, to a stranger, it frequently happened that parties, without whose concur- rence the freehold could not be effectually conveyed, were by some mistake not joined in the proceedings, or refused to join in them, or could not be discovered (g). But, under the new system, all these annoyances are, by a neat and simple arrangement, avoided ; while the only real benefit resulting from the antient practice, is at the same time effectually secured. For as the protector is always con- stituted by the same settlement as the tenant in tail, there can rarely be any difficulty in finding him out ; and sup- posing the relation of parent and child to exist between them (as will usually be the case), there can be no reason to fear that compliance will be refused from an unworthy motive ; nor, in case of compliance, will any conveyance to a stranger be necessary, the mere consent of the pro- {(;) See the First Real Property Report, p. 24. CM. XIX. — OF COXVEYAXCES BY TEXAXTS IX TAIL, ETC. 601 tector (given in due form) being all that the statute requires. It ouglit, lastly, to be mentioned, as a further recommenda- tion of the modern assurances, that thej are capable of being executed at any time that convenience may suggest ; in which respect they differ materially from the former methods, particular!}' that of recovery, which could not be transacted except during the law terms ; for, as it was at those stated times only that (under the forensic system then prevailing) the Court of Common Pleas was open, some of the proceedings in the fictitious suit were necessarily con- fined to the same periods ; from which circumstance it fre- quently resulted that the death of parties would intervene to prevent the intended recovery, and defeat for ever the purposes which it was designed to effectuate (A). (/i) The reader desirous of further it amply discussed in the first iuformation •vn.ih. respect to the volume of Mr. Hayes's Introduc- Fine and Recovery Act ■will find tion to Convej-ancing-. 592 BK. II. OF RIGHTS OF PROPEHTY. — PT. I. THIXGS REAL. CHAPTER XX. OF THE CONVEYANCE BY DEVISE. Thk modes of assurance hitlierto examined, all operate or come into force from the time of the execution of the instrument (a) : but there is another (and it is the last conveyance of an ordinary kind, to which we shall have occasion to refer), which is founded on a different prin- ciple; and this is a devise by last will and testament (fj). For a will is of no force until after the death of the dis- posing party, but during his life is (in the language of the law) merely cojibuhifori/, that is, of an unsettled and fluctuating character. " Omne testamentum morte constim- matum est, et vohintas tcsfaforis est amhulatoria usque ad mortem " {<■). [A niU or testament are terms generally used without distinction, to express the instrument by which a man makes a voluntary disposition of his property, after his death ; and we are told by the old Roman lawyers that it is " voluntatis nostrce justa sententia, de eo quod quis post mortem suam fieri relit,'' the legal declaration of a man's intentions, which he wills to be performed after his death {d). Is is called sententia to denote the circum- spection and prudence with which it is supposed to be made ; it is voluntatis nostrce sententia, because its efficacy {a) Shelford on Wills, 5. (c) Co. Litt. 112. {/>) Tho term convri/ance is some- {d) Ff. 28, 1, 1. Tlie above is times applied to an alienation inter from Modestinus. Ulpian gives vivos exclusively, and so as not to the following', — mentis nostra justa include a will. But it is also pro- contcstatio, in id solemniter jacta, tit perly used, in the larger sense post mortem nostram valeat. (Reg. assigned to it in the present work. 20, 1. ) CHAP, XX. — OF THE CONVEYANCE BY DEVISE. 593 [depends on its declaring the testator's intention, wlience it is emphatically styled his will [e) ; it is justa sententia, that is, dra^TO, attested, and published, -with all due solemnities and forms of law ; it is tie co quod quis post mortem suam fieri velit, because it is of no force until after the death of the testator.] While defining a will, we may also take occasion to explain the term codicil, which is derived from the Latin codicillns (importing a little book or writing), and is an instrument made sub- sequently to the original will, by which its dispositions are added to, explained, or altered (_/). It is subject, in general, to the same remarks as the original instrument itself, of which indeed it is considered as forming a part {g) ; so that what may be laid down as law relating to a will, may be taken generally as applicable also to all codicils thereto annexed iji). ■ [With respect to the principle on which a disposition by will is allowed, we have more than once observed, that when property came to be vested in individuals by the right of occupancy, it became necessary, for the peace of society, that this occupancy should be continued, not only in the present possessor, but in those persons to whom he should think proper to transfer it ; which introduced the doctrine and practice of alienation. But these precautions Avould be very short and imperfect if they were confined to the life of the occupier ; for then upon his death all his property would again become common, and create an infinite variety of strife and {e) As to the lowiilcdgc of the {g) When a testator by a codicil testator of the contents of the will confirms his will, all previous codi- being essential to its validity as oils unrevoked are thereby also such, see ITastQow v. Stobie, Law coiifii'med. (Green v. Tribe, Law Rep., 1 P. & D. 64. Hep., 9 Ch. D. 231.) (/) Hence, a codicil properly (/() 2 Bl. Com. 500. In the new executed and attested maj^ give Statute of Wills, 7 Will. 4 & I validity to an insufficient bequest Vict. c. 26, the term " will" is to in the w^ill to which it is annexed. be taken as extending to a codicil See Anderson v. Anderson, Law also (sect. 1). Rep., 13 Eq. Ca. 381. NOI.. I. , Q Q 594 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [confusion. The law of very many societies lias there- fore given to the proprietor a right of continuing his property, after his death, in such persons as he shall name (?'). Testaments are of very great antiquity. We find them in use among the antient Hebrews ; though the example usually given of Abraham's complaining that, unless he had some children of his body, his steward Eliezer of Damascus would be his heir (y) — will be hardly thought quite conclusive to show that he had made him so by 7ciU. And indeed a learned writer has adduced this very passage in Genesis to prove that in the patriarchal age, on failure of children or kindred, the servants born under their master's roof succeeded to the inheritance as heirs at law iji). But — to omit what Eusebius and others have related of Noah's testament made in icritiiu/, and witnessed under his seal, whereby he disposed of the whole world (/) — it is apprehended that a much more authentic instance of the early use of testaments may be found in the sacred writings, v/herein Jacob bequeaths to his sou Joseph a por- tion of his inheritance, double to that of his brethren (m) : which bequest we find carried into execution many hun- dred years afterwards, when the posterity of Joseph were divided into two distinct tribes (those of Ephraim and Manasseh), and had two several inheritances assigned them ; whereas the descendants of each of the other patriarchs formed only one single tribe, and had only one lot of inheritance. Solon was the first legislator that introduced wills into Athens (;/), but in many other parts of Greece they were totally discountenanced (o). In E,ome they were unknown until the laws of the Twelve Tables were compiled, which first gave the right of (0 Puff. L. N. lib. 4, c. 10. (/) Seld. de Succ. Eb. c. 24. {J) Genesis, c. 15. SeeBarbejT. {m) Genesis, c. 48. Puff. 4, 10, 4 ; Godolph. Orph. («) Plutarcli in Vita Solon. Leg. 1, 1. (o) Pott. Antiq. 1. 4, c. 15 ; {k) Taylor, Elom. Civ. Law, 517. Hermann's Antiq. s. 20. CHAP, XX. — OF THE CONVEYANCE BY DEVISE. 595 [bequeathing (j)) : and among the Northern nations, par- ticularly among the Grermans, testaments were not re- ceived into use (q). And this variety may serve to evince that the right of making wills and disposing of property after death, is merely a creature of the civil state ; which has permitted it in some countries, and denied it in others. And even where it is permitted by law, it is subjected to different formalities and restrictions in almost every nation under heaven (>•).] In this country, both real and personal estate have long been capable of transmission by will, and a modern statute (7 Will. IV. & 1 Vict. c. 26), to which we shall soon have occasion more particularly to refer, confirmed and further regidated this power in the year 1837, and placed it, for the future, on a new basis. As regards personal estate, however, and chattels real (which are considered as per- sonalty), and also as relates to copyholds, it would be premature to consider fully, in this part of our work, the law of testamentary disposition (s) ; and we shall chiefly confine our present inquiries to the nature of that law as it affects estates of freehold duration and tenure ; or, as it is commonly expressed, the law of devises. To obtain a clear idea of this subject, it will be desirable to consider imder separate heads : — I. The power of devise itself, — to what person it belongs, and to what estates and interests it applies. II. The solemnities which attend the execution, revocation and revival of a will. III. The rules of construction to which devises are subject. IV. The operation of a devise in conveying or limiting real estate. I. [As to the power of devising, it seems sufficiently clear that, at a period antecedent to the Conquest, lands (p) Inst. 2, 22, 1. SeoVin. lib. (s) As to tlio title to personal 2, t. 10. estate by will or admiiiistration, ((/) Tacit, de Mor. Genu. 20. vide post, bk. ii. pt. n. c. vii. ; ('■) Vide sup. p. 163 ; 2 Bl. Com. and as to devises of copyhold, post, 13. c. xxn. qq2 596 BK. II. OF RIGHTS OF PROPERTY, PT, I. THINGS REAL. [were devisable by will in this country (.r). But upon tbe introduction, which took place after that event, of the military tenures, a restraint on devising lands naturally followed as a branch of the feudal doctrine of non- alienation without consent of the lord. So that after the Conquest, no estate greater than for term of years could be disposed of by testament (y), — except only in Kent and in some antient boroughs, and a few particular manors, where their Saxon immunities by special indulgence subsisted {z). And though the feudal restraint on alienation by deed vanished very early, yet this on wills continued for some centuries after ; from an apprehension of infirmity, and imposition on the testator in extremis, which made such devises suspicious [a). Besides, in devises there was want- ing that general notoriety and public designation of the successor, which, in descents, is apparent to the neigh- bourhood ; and which the simplicity of the common law always required in any transfer and new acquisition of property. But when ecclesiastical ingenuity had invented the doctrine of uses as a thing distinct from the legal estate, uses began to be devised very frequently {b) ; and the devisee of the use could, in Chancery, compel its execu- tion. For it is observed by Gilbert {c), that as the Poj)ish clergy then generally sat in the Court of Chancery, they considered that men are most liberal when they can enjoy their possessions no longer ; and therefore at their death would choose to dispose of them to those who, according to the superstition of the times, could intercede for their happiness in another world. But by the effect of the statute 27 Hen. VIII. c. 10, these uses afterwards became legal estate, which was not at that time devisable ; and this might have occasioned a great revolution in the law (.r) Wright's Ten. 172. 163, 213, 214. (y) 2 Inst. 7. («) Glan. Ub. 7, c. 1. (s) Litt. 8. 167; Co. Litt. 111. \b) Plowd. 414. Vide Rob. Gavel. 235; sup. pp. {>■) Oq Devises, 7. CHAP. XX. — OF THE CONVEYANCE BY UEMSE. 597 [of devises, had not the Statute of Wills been made about five years after — viz. 32 Hen. YIII. c. 1 (explained by 3-i & 35 Hen. VIII. c. 5,) — which enacted that all persons being seised in fee simple (except feme coverts, infants, idiots, and persons of nonsane memory,) might by •^ill and testament in writing devise to any other person, (ex- cept to bodies corporate,) two-thirds of their lands, tene- ments and hereditaments held in chivalry, and the wJioIe of those held in socage ; which afterwards, through the alteration of tenures by the statute of Charles the second, amounted to the whole of their landed property, except their copyhold (rf).] A devise under these statutes took effect, not only upon legal, but also upon equitable estate ; which indeed (as already explained) will pass imder any form of conveyance applicable to the former species of interest [c). The statutes did not, however, apply to the chattels of the testator, whether consisting of terms of years in land, or of things personal ; for the aid of the legislature was not in the time of Hen. VIII. required as to these ; as we shall have occa- sion to show more particularly in a subsequent part of the work (/). And with respect to a freehold interest, a devise imder these statutes was inoperative, unless the land belonged to the testator at the time of executing the will. So that lands acquired after execution were in- capable of passing iinder the devise ; and if the testator was desirous of including them in his testamentary dispo- sitions, a new will or codicil, or a re-execution of the exist- ing will, was required for the purpose {g) . It may also be remarked, as to the persons capable of {d) Vide sup. p. 163, and see {(/) 2 Bl. Com. 378. See Ai-thiir Butler and Baker's ca.se, 3 Rep. v. Bokeuham, ubi sup. ; Langford 25 ; Ai-thur v. Bokenham, 11 Mod. v. Pitt, 2 P. Wms. 629 ; Marston 148;Wyndhainr.Chetw7nd, BuiT. v. Roe, 8 Ad. & El. 14. But 420. after- acquired personal estate hp.s {e) Vide sup. p. 384. been always capable of passing (/) Vide post, bk. ii. pt. ii. under a will previously made. 0. vn. ; 2 Bl. Com. 374. 598 BK. 11. or RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. becoming devisees, that tlie statutes of Hen. YIII. made an express exception of corporations, which was done to prevent the extension of gifts in mortmain (/) ; though it was afterwards held, that a devise to a corporation for a charitahle use was valid, as operating in the nature of an appointment, rather than a bequest (/<•). But we have had occasion in another place to advert to the statute 9 Geo. II. c. 36, by which devises to charitable uses are now gene- rally made void ; and which has consequently rendered that decision, and some others of the same tendency, less material (/). Such was the power of devising as it existed at the date of the 7 Will. lY. & 1 Yict. c. 26 ; and thus it still stands with respect to all wills made before 1st January, 1838 : but as to all wills executed on or after that day, the law must now be looked for in the provisions of that statute, often called, in contradistinction to the old Statute of Wills, " The New Wills Act." This enacted that (with the exceptions presently to be noticed) it shall be lawrful for any person (being of full age, and if a female being unmarried) to dispose by will of all real and personal estate, legal or equitable, to which he or she shall be entitled at the time of death, and which, but for such disposition, would pass either to the heir at law or to the personal representatives {m) ; and the Act expressly ex- tends this power of disposition to an estate held jiur autre vie ; to any contingent, executory, or other future interest ; and even to a right of entry upon land, a class of interest previously considered incapable of being devised {)i) . The (i) 2 Bl. Com. 375. other tenure, and whether corpo- (/,) lb. real, incorporeal, or personal, and (/) Vide sup. p. 462 ; Bl. Com. to every estate, right, or interest ubi sup. therein, other than a chattel in- (m) " Keal estate" shall extend terest ; and "personal estate" to to all manors, advowsons, mes- all property whatsoever which by suages, lands, tithes, rents, and law devolves upon the executor or hereditaments, whether freehold, administrator. (7 Will. 4 & 1 Vict. customary freehold, tenant right, c. 26, s. 1.) customary, or copyhold, or of any {») See Doe v. Tomkinson, 2 CHAP. XX. — OF THE CONVEYANCE 15Y DEVISE. 599 power is also expressly extended to after- acquired property, by a provision that all real and personal estate, to which the testator is entitled at the time of his death, shall pass, notwithstanding that he may become entitled to the same subsequently to the execution of his will (o). And it is further to bo remarked, as to the person caf)able of taking by devise, that there is no exception in this Act (as under the former statutes) with regard to corporations ; so that a devise to a body corporate is now valid ; subject to the enactments of the Statutes of Mortmain, by which corpora- tions are required to obtain the crown's licence, to enable them to become the holders of land {p) ; and subject also to the prohibition of 9 Geo, II. c. 36, as to a devise to charitable uses. On the other hand, the Act contains an express exception to the power of devising, in reference to married women and infants— the first being only allowed to make a valid disposition in cases in which they might have done so before the Act {q), and minors being made wholl}^ incompetent — and to these we must of course un- derstand the exception to be tacitly added which would be introduced by the general rules of law, in respect of idiots, insane persons, and others labouring under personal in- capacity to convey in any manner whatever (>•). Mau. & Sel. 165; Roe v. Jones, 1 express power giveu to her. (See II. Bl. 30 ; 3 T. R. 88 ; Goodright Taylor v. Meads, 34 Law Joum. V. Forrester, 8 East, 552. Rep., p. 203 ; Pride v. Bubb, Law (o) 7 Wm. 4 & 1 Vict. c. 2G, s. 3. Rep., 7 Ch. App. 64.) It is to be See Marston v. Roe, 8 Ad. & El. 14. observed that the Married Women's {p) Vide .sap. p. 456. Property Act, 1870 (33 & 34 Vict. {q) 7 Will. 4 & lVict.c.26,ss.7,S. c. 93), also the Married Women's Before the Act, a man-ied woman Property Act, 1882 (45 & 46 Vict, could not in general dispose of land c. 75), expresslj' makes all invcst- bywill; (seeForseand Hcmbling's meuis by a maiTied woman of her case, 4 Rep. 60 b;) but might do so own earnings, &c., gained indc- under a poicer of appointment by pendcutly of her husband, property wiU expressly conferred on her for ' ' held and settled to her separate the purpose. (See Johns r. Dickin- use." See In re Price, 28 Ch. D. son, 8 C. B. 934.) And she might 709. dispose of what had been settled to {)■) Vide sup. p. 475. As to the her separate use, even without any disposing power of a person par- 600 BK. II. or RIGHTS OF PROPERTY. — PT. I. THINGS REAL. II. With respect to solemnities. When the Statute of Wills (32 Hen. VIII. c. 1) had for the first time given efficacy to devises of the realty, innimierahle frauds and perjuries were quickly introduced (?<) : which can excite no surprise when we consider that hare notes, in the hand- writing of another person, then hecame good wills within the statute if onlj published as such ; that is, declared hy the testator to be intended to operate as his last will and tes- tament (x). For exGe])i 2)uh/icafio)i no other ceremony had been essential to a written will of personalty, before this statute passed (//) ; and the statute itself prescribed no parti- cular solemnity in reference to a devise of real estate, except that it required the will to be in writing. [To remedy which the Statute of Frauds and Perjuries (29 Car. II. c, 3), directed amongst other things, that devises of lands and tenements should not only be in writing, but be signed by the testator, or by some other person for him in his presence and by his express direction (z) ; and should also be sub- scribed, in his presence, by three credible witnesses [a) . And a solemnity nearly similar was, by the same Act (sect. 6), made requisite for revoking a devise by writing {b) ; though the same might be also revoked by the burning, cancelling, tearing, or obliterating thereof by the devisor, or in his presence, and with his consent, if done aniino rcrocandi {c) : as it might also be, impliedly, by any new modification of the interest of the devisor in the estate devised [d) ; or tialbj insane, see Smith r. Tebbitt, remarked here, that a will is al- Law Rep., 1 P. & D. 398; Banks ways capable of revocation, though V. Goodfellow, ib. o Q. B. 549. it purport in the strongest words («) 2 Bl. Com. 376. to be irrevocable ; for to hold the {x) Ibid. contrary, says Lord Bacon, would [y) As to publication, see Doe v. be for a man to deprive himself of Sir F. Burdett, 4 Ad. & El. 14. that which of all other things is (z) As to signing by a mark, see most incident to human condition ; Baker v. Denning, 8 Ad. & El. 94. and that is, alteration or repent- («) See Roberts r. Phillips, 4 ance. (Bac. Elem. c. 19.) Ell. & Bl. 4.50. (c) See Andi-ew v. Motley, 12 {b) See Swinton v. Bailey, Law C. B., N. S. 514. Rep., 1 Ex. D. 110. It may be [rl) Sec Sparrow v. Hardcastle, CHAP. XX. — OF THE CONVEYANCE HY DEVISE. GOl [bj sucli a great and entire alteration in circumstances as arose from marriage and the birth of a child (e), or, in case of a woman, by marriage only (/).] In the construction of the above enactment of the Statute of Frauds, it was settled that the testator's name, written with his own hand at the beginning of his will, as " I John Mills do make this my last will and testament," was a sufficient signing, if intended as such by the testator ((/) . It was also ad- judged that though the witnesses must all see the testator sign, or at least acknowledge his signature, yet they need not all be present at the same time {/i) ; though they must all subscribe their names in //is presence, lest by any possi- bility they should mistake the instrument [i). And the judges were extremely strict in regard to the credibility, or rather the competency, of the witnesses ; for they came to a resolution not to allow any legatee, nor, by con- sequence, a creditor by simple contract, where the legacies and debts were charged on the real estate, to be a com- petent witness to the devise, as being too deeply con- cerned in interest that the will in question should be established (/.•). For, in that case, he gained a security for his legacy (or debt) from the real estate ; whereas otherwise, as the law then stood, he had no claim but on the personal assets. [This determination, however, 3 Atk. 802 ; Williams v. Ovvons, 2 the heir one sliilling-, or some Ves. jim. 699 ; Langford v. Little, amouut of legacy, iu order to cut 8 Ir. Eq. R. 546 ; see also the 4tli him off effectually. Real Prop. Rep. p. 24. (/) Foi'se aud Ilcmbling's case, (6-) See Re Cady^vold, 1 Swab. 4 Rep. 60 b. & Trist. 34. Blackstone (vol. ii. {g) See 2 Bl. Com. by Chitf.y, p. 602), observes, that revocation 376, n. (6). by the birth of a child bear.s some {h) Freem. 486 ; 2 Ch. Ca. 109 ; analogy to the Roman rule, which Free, in Cli. 185. set aside a testament as iiiojicioits, (i) Longford v. Eyre, 1 P. Wma. if any chUd was wholly passed by 740. therein without assigning a suffi- (A') Holdfast r. Dowsing, Stra. cient reason. And to this rule ho 1253. Contra, Wyndham v. Chct- is inclined to attribute the vulgar wynd, Burr. 414. error as to the necessity of leaving 602 BK. II. OF RIGHTS OF PROPERTY. — PT. T. THINGS REAL. [alarmed many purchasers and creditors, and threatened to shake most of the titles in the kingdom, that depended on devises by will. For if the will was attested by a servant to whom wages were due, by the apothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues (and these are the persons most likely to be present in the testator's last illness), and if, in such case, the testator had charged his real estate with the payment of his debts, — every disposition in the will, so far as it related to real property, would be utterly void. This occasioned the statute 25 Geo. II. c. 6, which restored both the competency and the credit of such legatees, by declaring void all legacies given to witnesses, and thereby removing all possibility of their in- terest affecting their testimony (/), The same statute like- wise established the competency of creditors, by directing the testimony of all such creditors to be admitted, — leaving their credit, (like that of all other witnesses,) to be con- sidered on a view of all the circumstances, by the coiu-t and jury before whom such will should be contested.] Such is still the law as to the execution and attestation required for wills made before 1st January, 1838 {»/) ; but the provisions previously in force are, by 7 Will. IV. & 1 Yict. c. 26, repealed as to all wills made on or after that date (y?) ; and it is now enacted (o), that no will (whether operating on real or on personal estate, or on both) shall be valid {p), unless it be in writing, and signed at the foot (/) As to the effect of a will so re-executed, re-published, or (made prior to the New Wills Act) revived. (See Doe v. Walker, 12 being attested by an interested Mee. &W. 591 ; Winter t^. Winter, party, see Cresswell v. Cresswell, 5 Hare, 306.) The statute extends Law Eep., 6 Eq. Ca. 69. to wills made before 1st Januarj--, {ni) 7 Will. 4 & 1 Vict. c. 26, 1838, if altered subsequently to 8. 34. By this section, every ^-ill that date. (Croker v. Hertford, re-executed, or re-published or re- 4 Moore's P. 0. Cases, 339.) vived by any codicil, shall, for the («) Sect. 2. purposes of the Act, be deemed to (o) Sects. 9, 11. have been made at the time when (/^) With regard, however, to CHAP. XX. — OF THE CONVEYANCE BY DEVISE. G03 or end thereof, by the testator or some other person, in his presence, and by his direction (q) ; such signature being also made or acknowledged by him, in the presence of t/ro or more witnesses present at the same time, and such witnesses attesting and subscribing the will in his j^re- sence (r). Where these requisites, however, are complied with, no other is now imposed by law ; and the statute ex- pressly enacts that no juiblicafion, other than is implied in the execution so attested, shall in future be necessary (s). The former provisions with respect to the competency of witnesses having an interest, are also repealed as to wills taking effect under the new law {t) ; and the new enact- wills of personalty made by soldiers or seamen ou actual service, and tlie distribution of their effects when intestate, see 29 Car. 2, c. 3, s. 22 ; 17 & 18 Vict. ci. 104, ss. 194—204 ; 28 & 29 Vict. CO. 72, 111. [q) By 15 & 16 Vict. c. 24, it is made sufficient if the signature of the testator or testatrix be placed at or after, or following, or under, or beside, or opposite to the end of the will in such manner that it shall be apparent on the face of the will, that it was intended to give effect by such signature to the writing signed as the will ; but the signature is not sufficient to give effect to any disposition underneath or following it, or inserted after the signature is made. (As to this pro- vision, see Re Peach, 1 Swab. & Trist. 138 ; Trott v. Skidmore, 2 Swab. & Trist. 12 ; Re Williams, Law Rep., I P. & D. 4 ; Re Dal- low, ib. 189.) In -pTSicticc everg sheet of paper used for the will is signed at the margin by the testator. {r) As to attestation, see Ilott v. Genge, 4 Moore's P. C. Cases, 265 ; In re William Frith, 1 Swab. & Trist. 8 ; Charlton v. Ilindmavsh, 8 H. of L. Ca. 160; ReDrummond, 2 Swab. & Trist. 8 ; Re Wilson, Law Rep., 1 P. & D. 269 ; Blake V. Blake, 7 P. Div. 102. The attestation may be thus worded : " Signed, published and declared " by the said A. B., the testator, " as and for his last wUl and tes- " tament, in the presence of us, " present at the same time, who " at his request, in his presence, " and in the presence of each other, " have hereunto subscribed our " names as witnesses." (s) See also the provisions in 24 & 25 Vict. c. 114, as to wills of British subjects residing abroad at the time of death, so far as relates to personal estate. It may be re- marked here, that appointments by tvill under a power are to be exe- cuted and attested in the same manner with other wills ; even whore other solemnities have been prescribed by the donor of the power (7 Will. 4 & 1 Vict. c. 26, s. 10) ; a provision parallel to which has been since made by 22 & 23 Vict. 0. 35, s. 12, as to appoint- ments by deed under a power ; vide sup. p. 553, n. (0 7 Will. 4 & 1 Vict. c. 26, 88. 14, 15, 16, 17. 004 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. ments on this subject are, first, tliat the incompetency of any attesting witness sliall not invalidate tlie will ; secondly, that any beneficial gift or appointment by the will to an attesting witness, or to the husband or wife of an attesting witness, (except a charge for payment of debts,) shall be void, and the evidence of the witness admissible ; thirdly, that where land is charged by the will with payment of debts, and the creditor (or husband or wife of the creditor) is an attesting witness, such witness shall nevertheless be competent ; fourthly, that no person shall be incompetent as a witness, on account of his being an executor of the will. These enactments, however, are now of the less importance, as by the subsequent statutes of 6 & 7 Yict. c. 85, and 14 & 15 Yict. c. 99, the objection to a witness on the ground of interest, (which once applied generally in our law, and not merely in the instance of wills,) is in all cases taken away {u). As to revocation, also, the former law was altered by the New Wills Act; and it is provided (sect. IS), that every will taking effect under this statute shall be revoked by the mcwriage alone either of a testator or of a testatrix — unless, indeed, such will wos made in exercise of a power of ap- pointment, and in a case where the estate would not have passed, in default of appointment, to his or her represen- tatives ; but that, on the other hand, no will shall be re- voked by any presumption of an intention to revoke, raised by any alteration in circumstances or otherwise, ex- cept only by marriage as aforesaid (,/■) . A revocation may, however, take place by the execution of another will or of a codicil, or of some writing of revocation executed like a will (//), or by the burning, tearing, or other destruction [u) There is, however, in both of wife of an attesting witness, will these statutes, a proviso that this still be void. And see Thorpe v. fihall not bo taken to repeal the Bestwick, 6 Q. B. D. 311. enactments of 7 Will. 4 & 1 Vict. (.r) 7 Will. 4 & 1 Vict. c. 2G, s. 19. above referred to ; and consequently See De Pontes v. Kendall, 10 W. K. a gift or appointment to an attest- G9. ing witness, or to the husband or (y) It may be remarked that, as CHAP. XX. — OF THE CONVEYANCE BY DEVISE. 605 of the original Avill [aniino rcvocandi), by the testator or some person in his presence and by his direction (z). But no alienation of the property devised or other act (other than of the class above noticed), subsequent to execution, will prevent the devise taking effect on any estate dis- posable by the testator at his death (a). With respect to obliteration or other alteration made after execution, it is provided that they are to have no effect (where the original meaning can still be deciphered) unless executed with the same ceremonies as the will itself {b} ; though it will be sufficient if the signature of the testator, and the subscription of the witnesses, be made opposite or near the part altered, or at the foot or end of some memorandum written on the will, and referring to the alteration (c). And so when a will is once revoked, it is not to be revived otherwise than by re-execution of the original, or by a codicil duly executed and showing an intention of re- vival (d). III. With respect to the construction of devises, they are subject, in a great measui'e, to the same rules of in- terpretation as apply to conveyances by deed {e) ; but as the general rule, no effect will be testator, would not pass under the given by the court to any letter original devise, imless the will was of direction or other supplementary re-published or revived, paper, unless the same has been {b) See as to alterations or era- duly executed as a will. See sures, Gann v. Gregory, 22 L. J. M'Cormick v. Grogan, Law Rep., (Ch.) 1059 ; Re James, 1 Swab. & 4 App. Ca. 82; anddisting. Single- Trist. 238. Et vide sup. p. 498, n. ton V. Tomlinsou, 3 App. Ca. 401. (<■) 7 "WiU. 4 & 1 Vict. c. 26, s. 21. {z) 7 AVill. 4 & 1 Vict. c. 26, {d) Sect. 22. As to revival, see 8. 20. See Francis v. Grover, 5 Andi-ews r. Turner, 3 Q. B. 177; Hare, 39 ; Price v. Powell, 3 H. & lu the goods of WUham Brown, 1 N. 341 ; Ehns v. Elms, 1 Swab. & Swab. & Trist. 32. As to re-exe- Trist. 155; Eckersley v. Piatt, cution, Dunn r. Dunn, Law Kep., Law Rep., 1 P. & D. 281. 1 P. & D. 277. («) 7 Will. 4 & 1 Vict. c. 26, {<■) See Clayton v. Lord Nugent, 8. 23. Prior to this Act it had been 1 3 Mee. & W. 200. As to these rules held that lands devised, and after- of interpretation, vide sup. p. 501. Avards sold and re-acquired by the 606 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. in making a -will, a party is supposed to be inops con- silii (/), there are instances in which the law will carry his intended limitations into effect, though the words used would be insufficient or improper for the purpose in a deed (g). Thus it has always been held that a fee might be conveyed by way of devise without legal words of inheritance, and an estate tail without words of procrea- tion {//), provided that other words were used sufficient to indicate the design (i) ; though in conveyances by deed, the case, as we have seen, used to be otherwise (/»•). [So an estate may pass under a will by mere implication, with- out any express words to direct its course. As where a man devised lands to his heir at law, after the death of his wife. Here though no estate was given to the wife in express terms, yet she was held to have an estate for life by implication (/) ; for the intent of the testator was clearly to postpone the heir, until after her death ; and if she did not take it nobody else could. So also where a devise was of Blackacre to A. in tail, and of Whiteacre to B. in tail, and if they both died without issue, then to 0. in fee : — here it was held that A. and B. had cross-remainders by implication ; and that on the failure of cither's issue, the other or his issue would take the whole, and C.'s remainder over be postponed till the issue of both should fail [m). But where any implications are allowed, they must be such as are necessary, or at least highly probable, and not merely possible implications {n).'] There is also this differ- ence between deeds and wills in point of construction, that (/) 2 Bl. Com. 172. {h) Doe v. Bannister, 7 Mee. & [y) Co. Litt. by Butler, 272 a, W. 298 ; Lewis v. Puxley, 16 Mee. n. (1) : Doe v. Roberts, 7 Mee. & W. & W. 733 ; ride sup. p. 245. 386; Slater 1'. Dangerfield, 15 Mee. (J) See Lloyd v. Jackson, Law & W. 263. As to tlie construction Eep., 2 Q. B. 269. of wills in reference to the descrip- (/.•) Vide sup. p. 237. tion of the devisee, see Doe v. His- [1) See 1 Vent. 376. cocks, 5 M. & W. 363 ; Doe v. {>n) Freem. 484. As to cross- Rouse, 6 C. B. 422 ; In re Ingle's remainders, vide sup. p. 354. Trusts, Law Rep., 11 Eq. Ca. 578. (;/) Vaugh. 262, CHAP. XX. — OF THE (•OXVEYA^'CE HY DEVISE. 607 supposing a will to contain two inconsistent clauses, that which comes last in order shall prevail (o) ; though in a deed (as we have seen) the preference is due to that which comes first {p). A devise also is subject to a less strict rule than a con- veyance by deed, in respect of the description of the thing granted. Thus, if I convey my house by deed, without any specification of land, we have seen that no land can pass, except the orchard, garden and curtilage {q) ; but the question what shall pass by the devise of a house (or of a house " with the appurtenances ") is piu-ely a question of intention, to be determined, like other points of construc- tion, by the tenor of the whole will. A devise in either form may, under special circumstances, have the effect of passing adjacent land or buildings (r). There are also some particular points of construction with regard to devises, which have been established by parlia- mentary enactment. For the former state of the law upon these points, as settled by judicial decisions, being deemed unsatisfactory, it was thought fit, in the Xew Wills Act to regulate them for the future upon different principles. The new statute, however, it must be recollected, does not extend to wills executed before 1st January, 1838, which consequently remain subject, in respect of the same ques- tions, to ihQ former rules of interpretation. The points to which we refer are principally as follows. 1. As the dispositions made by a testator cannot take effect, and are not intended to take effect, till after his [p) There is some contrariety in (?•) 2 Saund. by Wms. 401, n. (2). the books as to this point ; but See also the following cases on the the doctrine laid down in the text construction of wills, in reference to appears to be supported by the i^e He&cvi-^^ion. oi the thing devised: better authorities. (See Co. Litt. Doe v. Cranstoun, 7 Mee. & W. 3 ; 112 b; Plowd. 541, in notis; Doe d. Doe v. Lightfoot, 8 Mee. & W. 553 ; Spencer v. Pedley, 1 Mee. & W. Doe v. Earles, 15 Mee. & "W. 450 ; 677.) Webber v. Stanley, 16 C. B., N. S. { p) Vide sup. p. 503. 698 ; Travers v. Blundcll, 6 Ch. Div. \q) Vide sup. p. 487. 436. 608 BK. ir. OF RTGHTS OF PROPEUTY. — PT. I. THINGS REAL. death, it lias often become a question wliether in his description of the property devised, or of the persons in whose favour he devises, he shall be considered as refer- ring to the state of things which exists when he executes his will, or to that which may exist at the time of his death. As to bequests of personal estate, the rule has always been, that the will speaks as at the time of death : but in devises of the realty, the opposite construction (as we have seen) formerly obtained ; and the will was held to speak, in general, as at the time of its execution (s). But the new statute has now assimilated the construction of devises upon this point to that of 'pe)'sonal bequests ; for it provides, " that every will shall be construed, with refer- " enee to the real estate and personal estate comprised in *' it, to speak and take effect as if it had been executed " immediately before the death of the testator, unless a " contrary intention shall appear by the will " (/). 2. Though (as before observed) an estate in fee was always allowed to pass by devise, without apt words of in- heritance, provided there were other expressions to show the testator's intention to confer a fee, yet, prior to the New Wills Act, a long train of judicial decisions had established that a mere devise of a house or land would not suffice to indicate that intention, but would confer only an estate for life {\i). Thus, if I were seised in fee of a house at A., and devised the same to B., adding either the words and his heivSy or equivalent words, expressive of an intention that he should take my whole estate therein, the house would pass to him, in either case, in fee ; but if I devised to him such house, without adding and his heirs, or using such other equivalent words as above mentioned, (.s) Vidosup. p. 593. SeeLomax El. & Bl. 572 ; Castle «•. Fox, Law V. Holinden, 1 Ves. sen. 295 ; Pow. Rep., 11 Eq. Ca. 542 ; Everett v. Dev. 307 (n.), by Jarman ; King Everett, 6 Ch. D. 122. V. Bennett, 4 Mee. & "W. 36. [ii) Vide sup. pp. 240, G06. See [t) 7 Will. 4 & 1 Vict. c. 20, Pickwell v. Spencer, Law Eep., 6 fl. 24. See O'Toolo r. Browne, 3 Exch. 190. CHAP. XX. — 01" THE CONA EYAN'CE BY DEVISE. 609 he would take an estate in it for liis life only (x). This rule had always given much dissatisfaction, as establishing a construction contrary to that which common sense pre- sumes to be the real intention of the party (y) ; and by 7 "Will. IV. & 1 Yict. c. 2G, s. 28, it has accordingly been provided, " that where any real estate shall be devised to " any person without any words of limitation, such devise " shall be construed to pass the fee simple, or other the " whole estate or interest which the testator has power to " dispose of by will, in such real estate, unless a contrary " intention shall appear by the will." 3. In devises to trustees, it had been a general rule prior to the New "Wills Act, that though no words of inheritance were used in the limitation to them, yet they should take such an estate (even to the extent of the whole fee) as might be necessary to enable them to perform the purposes of the trusts ; but the question often arose, whether in par- ticular instances they would take the fee, or a less estate, and if the fee, whether it would be determinable or not when the trusts were satisfied (;:). But by 7 Will. IV. & 1 Vict. c. 26, s. 30, a rule of construction is laid down, by which the subject is now governed; it being provided, " that where any real estate (other than or not being a " presentation to a chiu-ch) shall be devised to any trustee " or executor, such devise shall be construed to pass the fee " simple, or other the whole estate or interest which the " testator had power to dispose of by will in such real " estate ; unless a definite term of years, absolute or deter- " minable, or an estate of freehold, shall thereby be given " to him expressly, or by implication." And further (by (x) See Roe v. Blaekett, Cowp. (y) Denne v. Page, 11 East, 235 ; Silvey v. Howard, 6 Ad. & 605, n. El. 253 ; Doe v. Fawcett, 3 C. B. (;) See Doe v. Ewart, 7 Ad. & 274 ; Lloyd v. Jackson, Law Rep., El. 666 ; Doe v. Edlin, 4 Ad. & El. 1 Q. B. 571. And see ace. per cur. 582 ; Barker t". Greenwood, 4 Mee. Bolton V. Bolton, Law Rep., 5 & W. 429; Adams v. Adams, 6 Exch. 152, citing Jannan on Wills, Q. B. 860. vol. ii. p. 247, 3rd ed. VOL. T. R R 610 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. sect. 31), " that where any real estate shall be devised to a " trustee, without any express limitation of the estate to " be taken by such trustee ; and the beneficial interest " in such real estate, or in the surplus rents and profits " thereof, shall not be given to any person for life — or " such beneficial interest shall be given to anj^ person for " life, but the purposes of the trust are to continue beyond " the life of such person — such devise shall be construed to '•' vest in such trustee the fee simple, or other the whole " legal estate which the testator had power to dispose of " by will, in such real estate ; and not an estate determin- " able when the purposes of the trust shall be satisfied." 4. If, in the interval between the execution of a will and the death of the testator, one of the objects of his bounty should die, the devise will, by the general rule of law, la2)se, that is, fail, and take no effect ; and this, though the devise was to the devisee and his heirs, or to him and the heirs of his body ; and the subject-matter of it will be considered as not disposed of by the will {a) . This rule, until the New Wills Act, applied to all cases without distinction; but where an entailed estate had been given to one who died and left children, it was attended with peculiar hardship ; for if there were a devise to A. and the heirs of his body, and he died before the testator, the gift was void, even though he left issue (5). So if a testator gave his property among his own children, and one of them died before him, leaving issue, such issue would take nothing under the will, though the probability was, that this consequence could not have been intended. It is true that a testator had it always in his power to make a new disposition in favour of the children of a deceased devisee ; but either from negligence or ignorance of the law, or from other accidental causes, this was often omitted ; and an alteration of the law itself, as applicable ((/) It will be remembered that a donee (vide sup. p. 334). gift (whether by devise or by deed) (i) See the 4th Ileal Property in fee or in tail confers no distinct Rcpoi't, pp. 73, 74. estate on the heirs or insue of the CHAP. XX. — OF TTIE C()NVKYA^X•E BY DEVISE. 611 to cases of this description, was therefore thought desirable. The 7 Will. IV. & 1 Vict. c. 26, s. 32, has accordingly provided, " that where any person to whom any real estate *' shall be devised for an estate tail, or an estate in quasi " entail, shall die in the lifetime of the testator, leaving "issue who would be inheritable under such entail, and " any such issue shall be living at the time of the death of " the testator — such devise shall not lapse, but shall take " effect as if the death of such person had happened imme- " diately after the death of tlie testator, unless a contrary " intention shall appear by the will." And further (by sect. 33), "that where any person, being a child or other " issue of the testator, to whom any real or personal estate " shall be devised or bequeathed for any estate or interest " not determinable at or before the death of such person, " shall die in the lifetime of the testator, leaving issue, " and any such issue of such person shall be living at the " time of the death of the testator, — such devise or bequest " shall not lapse, but shall take effect as if the death of " such person had happened immediately after the death " of the testator, unless a contrary intention shall appear " by the will " (c). In addition to which enactments, and in connection with the subject of lapse, we may notice this further provision (sect. 25), introductory of a new rule, in cases where a lapse occurs, — " that unless a contrary " intention shall appear by tlie will, such real estate or in- " terest therein as shall be comprised, or intended to be " comprised, in any devise in such will contained, which " shall fail or be void by reason of the death of the de- " visee in the lifetime of the testator, or by reason of such " devise being contrary to law, or otherwise incapable of " taking effect, shall be included in the reaidaary devise (if " any) contained in such will " {d). (r) The "issue" left maj^ bo the 5 Ha. 306 ; Eager v. Fiiniiviill, 17 grandchild oi the devisee or legatee. Ch. D. 115 ; and distinguish Stans- (See Re Parker, 1 Swab. & Trist. feld v. Stansfcld, 15 Ch. D. 84.) 523. And sec also Johnson I'. John- (f/) The rule of law before the son, 3 Ilii. 1")7: Winter r. W^inter, statute passed was different as to K 11 2 612 BK. TI. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. 5. Under a devise by a testator, liaving leasehold estate only, — of " all my lands and tenements," — a lease for years has been always allowed to pass, for there would otherwise be nothing for the will to operate upon. But this being considered as the only reason for such a construc- tion, it was, on the other hand, prior to the New Wills Act, a general rule, that if a testator, using such words, had lands in fee, as well as leaseholds, at the time, the lands in fee only would pass (e). It is now, however, provided by 7 Will. IV. & 1 Yict. c. 26, s. 26, " that a devise of the " land of the testator, or of the land of the testator in any " place, or in the occupation of any person mentioned in " his will, or otherwise described in a general manner, and " any other general devise which would describe a cus- " ternary copyhold or leasehold estate, if the testator had " no freehold estate which could be described by it — shall " be construed to include the customary copyhold and " leasehold estates of the testator or his customary copy- " hold and leasehold estates, or any of them, to which such " description shall extend, as the case may be, (as well as " freehold estates,) unless a contrary intention shall appear "by the will" (/). 6. In like manner, where a party, having an estate in lands (which he is consequently competent to devise), is also entitled, by virtue of a poire r conferred on him for the pur- pose, to appoint other lands by his last will and testament, it was the rule, prior to the New Wills Act, that a general devise of his lands would operate only on those in which he had the estate, and would not affect those subject to the real estates, but the same as to Thompson v. Lawley, 2 Bos. &, Pul. personal. (See Doe v. XJnderdown, 303 ; Knight r. Selby, 3 Man. & Gr. WiUes, 293. And, as to lapse of 92; Parker v. Merchant, 5 Man. & residue, see Crawshaw v. Craw- Gr. 498; Doe f/. Dunning f. Cran- shaw, 14 Ch. D. 817, and cases stoun, 7 Mee. & W. 1. there cited; also, Hethcrington v. (/) See Wilson v. Eden, 5 Exch. Longrigg, 15 Ch. D. 635.) 752; Prcscott v. Barker, LawBep., {(') See Rose I'. Bartlett, Cro. Car. 9 Ch. App. 174. 293: Doe r. Williiims, 1 H. Bl. 2."^: CHAP. XX. — OF THE CONVEYANCE BY ])EVISE. 613 power ; thougli it was otherwise if he expressly referred to the power, or if it appeared by other circumstances (as by his having no estate for the will to work upon), that he intended the subject of the power to pass ((7). And such is still the general rule where the power is special, and to be exercised only in favour of particular individuals or classes of persons ; but where the power is general, and en- ables the testator to appoint to any person that he pleases, (which amounts in substance to an ownership,) the law is now altered by the New Wills Act ; for it is provided by the 7 Will. lY. & 1 Yict. e. 26, s. 27, " that a general " devise of the real estate of the testator, or of the real " estate of the testator in any place, or in the occupation " of any person mentioned in his will, or otherwise de- " scribed in a general manner, — shall be construed to " include any real estate or any real estate to which such " description shall extend (as the case may be), which he " may have power to appoint in any manner he may think " proper ; and shall operate as an execution of such power, " unless a contrary intention shall appear by the will " {/i). 7. By a rule of legal interpretation, at variance vdth. the common apprehension of mankind, and founded upon reasons of a purely technical description, it had long been settled law, that the words (h/i)i(/ icifhout issue, (as where an estate of freehold or leasehold was devised to A., and upon /lis dijinrj u-ithout issue, then over to B.,) in general imported an indefinite failure of issue ; that is, a failure not merely at the death of the party whose issue were referred to, but at any subsequent period, however re- mote (/) . But by the New Wills Act, such words were {g) See Denn v. Roake, 5 Barn. (/) See Fearne by Butlei-, pp.478, & Cress. 731. 480 ; Doe v. Taylor, 10 Q. B. 718 ; (Ji) The same section also con- Gee v. Mayor of Manchester, 17 tains a similar provision as to ap- Q. B. 737 ; Foster v. Hayes, 4 pointments of personal estate. As Ell. & Bl. 717 ; Bamford v. Lord, to the construction of the word 14 C. B. 708 ; BHss v. Smith, 2 "estate" in a devise, see Sanderson H. & N. 10.5. It is to be observed, r. Dobson, 1 Exch. 141. however, that such words received 614 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. directed, for the future, to receive a more natural expo- sition ; it being enacted by 7 Will. IV. & 1 Yict. c. 26, s. 29, " that, in any devise or bequest of real or personal " estate, the words ' die without issue,' or ' die without " leaving issue,' or * have no issue,' or any other words " which may import either a want or failure of issue of " any person in his lifetime or at the time of his death, or " an indefinite failure of his issue, — shall be construed to " mean a want or failure of issue in the lifetime or at the " death of such person, and not an indefinite failure of his " issue, unless a contrary intention shall appear by the " will, b}^ reason of such person having a prior estate tail, " or of a preceding gift, being (without any implication " arising from such words) a limitation of an estate tail to " such person or issue, or otherwise" (/.•). It is, however, added, that this provision shall not extend " to cases where " such words as aforesaid import if no issue described in a " preceding gift shall be born, or if there shall be no issue " who shall live to attain the age or otherwise answer the " description required for obtaining a vested estate by a " preceding gift to such issue." lY. [As to the operation of a devise in conveying and limiting real estate, a will, in regard to its operation on such estate, is considered by the courts not so much in the nature of a testament, as of a conveyance declaring the uses to which the land shall be subject (/) ; with this difference, however, that in other conveyances the subscription of the witnesses is not, in all cases, essential to the validity of the opposite construction, if accom- p. 471 ; Doe d. Cadogan v. Ewart, panied by any other expression 7 Ad. & El. 6-18.) tending to limit the failure of issue {k) As to the cases to which the to the time of the party's death ; above jjro vision is intended to and the law admitted such a con- apply, see Dawson v. Small, Law struction much more readily, in Rep., 9 Ch. App. 651. the case of a bequest of a term of {I) Wyndharat'.Chetwynd, Bun*. years, than in that of a devise of 429. the freehold. (Fearne by Butler, CHAP. XX. — OF THE CONVEYANCE BY DEVISE. 615 [the deed (m), though it is a prudent preccaution (and one which in practice is invariably observed), in order to assist their memory when living, and to supply their evidence when dead ; but in a devise, such subscription is made absolutely necessary by statute, in order to identify a con- veyance which in its nature can never be set up until after the death of the devisor.] By a devise, estates may be limited with the same effect as by a conveyance operating under the Statute of Uses (n) . Thus a man may effectually devise not only an estate in possession, (that is, in possession immediately on the death of the testator when the will first takes effect,) or in re- mainder, but also a freehold in f/tfi/ro, or a fee upon a fee, or any estate in defeasance of a prior estate of freehold, — all which limitations (as we have seen) may be effec- tually made by way of executory use, though not in a con- veyance at the common law (o). So a man may devise to his wife, — as he may convey to her by way of use, — though his conveyance to her at common law was inoperative (p). His devise moreover in all these cases will be effectual though made by direct gift, and without reference to uses {q). Yet as a devise is considered to be in the nature of a conveyance declaring uses, so uses are often expressly introduced into them ; and it has been the practice to in- troduce them in the same form as in conveyances under 27 Hen. VIII. c. 1 0. It has been doubted, however, whether that statute has any effect in the case of a devise (r) : and though where uses are expressly and formally declared by the will, it may often be inferred that the testator had the statute in view, and intended the conversion of the use into legal estate, according to its known mode of opera- tion ; yet it is rather by force of his iiifeiifioi/, than of the statute itself, that the legal estate, in such cases, would seem to pass. (»i) Vide sup. p. '497. {p) Ibid. in) 2 Bl. Com. 334 ; Arthur v. (q) Bl. Com. ubi sup. ; Co. Litt. Bokenham, 11 Mod. 154. by Butler, 272 a, n. (1). (o) Vide sup. p. 548. (r) lb. ; 1 Sand. IJses, p. 19G 616 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. A devise by wliicli any future estate is tlius allowed to be limited contrary to the rules of the common law, is called an cxecutonj devise (s). And upon the same prin- ciple to which we had before occasion to advert, in the case of a springing or shifting use, it used to be a rule that no limitation, capable of being considered as a remainder, shall ever be construed as an executory devise {t). All "execu- tory devises " are also subject, like springing and shifting uses, to the rule against perpetuity (»). And therefore, until the New Wills Act, it was held that if a chattel (real or personal) were bequeathed to A., and upon his dying without issue, then to B., the limitation over to B. was void, as being too remote {x) ; for such words imported (as we have seen) an indefinite failure of issue (y). But in devises of the freehold, similarly worded, the objection of remote- ness did not usually arise. For, in general, the law gave effect, in this case, to the limitation over, by considering the estate of the first taker as amoimting, by implication, to an estate tail ; a construction which was not admissible in the former case, by reason of there being no estate tail in a chattel {z) ; and the ulterior estate, by consequence, as a remainder : which, as it might always be barred by the recovery of the tenant in tail, did not fall within the rule against perpetuity. By the express provision, however, of the New Wills Act, the rule of interpretation as to the words dying ivitJiout issue, on which the whole of these doctrines were founded, is now (as we have seen) itself abolished {a) . (s) Feame by Butl. p. 386 ; 2 Bl. period allowed for vesting is oom- Com. 172. putcd, in the case of a devise, from {t) See Fearno by Butl. pp. 38G, the death of the testator, not from 394, 525 ; Doe d. Evers v. Challis, the date of his will. (Ibid.) 20 L. J. (Q. B.) 113. The rule, {x) Fearne by Butl. p. 4G0; Doe however, must now be taken in v. Ewart, 7 Ad. & El. 648 ; Doe v. connection with 40 & 41 Vict. c. 33, Duesbury, 8 M. & W. 531. as to which vide sup. pp. 333, 550. [y) Vide sup. p. 613. {>() 2B1. Com. 173, 334; Fearne (s) 2 Bl. Com. 398; vide sup. by Butl. 430, 9th ed.; Co. Litt. by p. 282. Butl. 271 b, n. (1), vii. 2. As to (a) Vide sup. p. 614. perpetuity, vide sup. j). 556. The CHAP. XX. — OF THE CONVEYANfE HY DEVISE. G17 With respect to the operation of a devise, it remains only to remark, that it vests in the devisee before and without entry an actual freehold by construction of law (b) ; being- similar in this respect to a conveyance under the Statute of Uses; but different from a descent, which does not vest in the heir an estate complete for all purposes unless and until he has made entry on the lands descended (c) . (4) Co. Litt. Ilia. The devisee "Winder v. Lawes, 7 Ad. & Ell. may, however, by an express act of 212). dissent, waive the devise unless he (c) Vide snp. p. 430. has entered on the land fDoe d. 618 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. CHAPTER XXI. OF EXTRAORDINARY CONVEYANCES — OR THOSE BY MATTER OF RECORD. Having now completed our view of conveyances of the ordinary class, whether founded on common or statute law, we proceed next to the examination of convef/ances hy matter of record [a) : which, being in use on particular and comparatively rare occasions, may therefore be designated as extraordinary conveyances. These are, 1. Private acts of parliament ; and 2. Royal grants ; both of which, as connected but slightly with the main body of the law, will be treated with brevity ; and the rather, because our method will lead us to omit, for the present, any exa- mination of the nature of the parliamentary and royal authorities on which they are respectively founded, — these subjects having both their appropriate places under the division of the work which relates to public rig/its. I. Private acts of parliamoit have been resorted to as a mode of assurance more frequently in modern than in antient times {b) . [For it may sometimes happen that, by (rt) The now abolished convey- (as to which, see Swansea Canal ances by way of fine and recovery Proprietors v. Great Western Rail- were also by matter of record ; vide way Company, Law Rep., 5 Eq. sup. p. 562. Ca. 444.) See also 13 & 14 Vict. (i) As to private acts of parlia- c. '21, s. 7, providing that all sta- ment, vide sup. p. 69. See 7 Will. tutcs passed after that Act shall 4 & 1 Vict. c. 83, as to the deposit be public Acts, unless the contrary of plans and documents in the case shall be expressly declared therein: of private bills; 10 & 11 Vict. c. 69; and 21 & 22 Vict. c. 78, as to ad- 12 & 13 Vict. c. 78; 28 & 29 Vict. ministering- oaths before commit- 0. 27 ; 42 «t 43 Vict. c. 17, as to tees of House of Commons on j:>>7- taxation of costs on private bills ; vate bills. CHAP. XXI. — OF CONVEYANCES BY MATTER OF RECOKU. 619 [the ingenuity of some, and the blunders of other prac- titioners, an estate is most grievously entangled by a multitude of resulting trusts, springing uses, executory devises, and the like artificial contrivances (c).] Or it may sometimes happen, that, by the strictness- of family settle- ments, or through some omission therein, the tenant of the estate is abridged of some reasonable power, (as making a jointure for his wife,, or the like,) which power cannot be given him by the courts even under the provisions of the Settled Estates Act, or of the Settled Land Act, to which we have already adverted {d). [Or it may be necessary, in settling an estate, to secure it against the claims of infants, or other persons under legal disabilities ; who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other cases of the like kind, the transeendant power of parliament is called in, to cut the Grordian knot ; and by a particular law, en- acted for this very purpose, to unfetter an estate ; to give its tenant reasonable powers ; or to assure it to a purchaser, against the remote or latent claims of infants or disabled persons, by settling a proper equivalent in proportion to the interest so barred. This practice was carried to a great length in the year succeeding the Restoration, by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurpation. And at last it proceeded so far, that, as a noble historian expresses it (e), every man had raised an equity in his own imagination, that he thought was entitled to prevail against any descent, testa- ment, or act of law, and to find relief in parliament ; {c) Blackstone (vol. ii. p. 344) " by it. They "were early^ttemjits also enumerates contingent remain- "to meet the contingeucies of fu- dcrs ; but these ircre known to tlic " mily settlements, and were intro- commonlaw. " They were probably " duced long before the Statute of "considered encroachments on the "Uses." " common law," say theKeal Pro- {d) Vide sup. p. 266. perty Commissioners (Third Rep. (e) Lord Clar. Contin. 162. p. 23), " but were certainly allowed G20 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [wliicli occasioned tlie king, at the close of the session, to remark, that the good old rules of law are the best security, and to wish that men might not have too much cause to fear that the settlements which they make of their estates shall be too easilj' unsettled, when they are dead, by the power of parliament (/). Acts of this kind are carried through, in both houses, with great deliberation and caution ; particularly in the House of Lords, where it has been the usual practice to have them referred to two of the judges, to examine and report on the facts alleged, and to settle all technical forms {g). Nothing also is done wdthout the consent, expressly given, of all parties in being, and capable of consent, that have the remotest interest in the matter ; unless indeed such consent shall appear to be perversely, and without any reason, withheld. And, as w^as before hinted, an equivalent in money or other estate is usually settled upon infants, or persons not in esse, or not of capacity to act for themselves, who are to be concluded by the Act. And a general saving is constantly added at the close of the bill, of the rights and interests of all persons whatsoever, except those whose consent is so given or purchased, and who are therein particularly named ; though it hath been holden, that, even if such saving be omitted, the Act shall bind none but the parties {h) . A law thus made, though it binds all parties to the bill, is yet looked upon rather as a private conveyance than as the solemn act of the legislature. It is not therefore allowed to be a j^ublic, but a mere private statute ; it is not printed or published among the other laws of the session; and it hath been relieved against, when obtained by (/) Lord Clar. Contin. 163. by two of the judges. (May's Laws {h) See 2 Bl. Com. 34:5. (o) lb. ; 2 lust. 555. (») 2 Rep. 17 b. CHAP. XXT. — OF CONVEYANCES liY MATTER OF "RECORD. G'i^ be prepared hy the attorney or solicitor-general, and should set forth the proposed letters-patent, and should be countersigned by one of the principal secretaries of state, and sealed ^viih the privy seal (p). Such was the general course of proceeding as established by that statute : but inasmuch as some letters-patent, writs, commissions, or other instruments, might, before the statute, have been passed under the great seal, by authority of the lord chancellor or othermse, without passing through the offices of the signet and the privy seal ; these were excepted, by an express proviso, from its operation. There are also some royal grants or appointments which only pass through certain offices, as the admiralty, the home office, or treasury, under the authority of a sign manual without the confirmation of either the signet, the great or the ^;;'/r// seal ; and to these of course the statute had no applica- tion [q). And now, under the Patents, Designs, and Trade Marks Act, 1883 (r), patents for inventions are simply sealed with the seal of the patent office ; and by the Great Seal Act, 1884 is), it has been provided generally, that a warrant under the sign manual, countersigned by the lord chancellor or a secretary of state, or the lord high treasurer, or two of the treasury commissioners, shall be a sufficient authority for passing any instrument under the great seal, and that for the future no instrument need be passed under the privy seal ; but where any instrument might before the Act have been passed under the great seal by the fiat of the lord chancellor or otherwise with- out passing through any other office, it is to continue to be so passed. [The manner of a grant by the cro^\^l, (as above set forth,) does not more differ from that by a subject, than (;;) By 40 & 41 Vict. c. 41, s. 4, by the 48 & 49 Vict. c. 63. icafer seuls might be used. («) 47 & 48 Vict. c. 30, repealing- {']) As to commissions in the the 27 Hen. 8, c. 11 ; 14 Ve down to 6th ed., by Brown, p. 228. the most inferior theijgne or land- (j) Bl. Com. ubi sup. holder; and that these consisted for {k) 2 "Watk. Cop. 135, 145. the most part in arms, horses, and (I) See Bract. 1. ii. c. 36 s. 9. habiliments of war, which the word According to Blackstone (vol. ii. itself, according to Spelman, signi- p. 424), the gift was in its orio-in fics. But the heriot of the villein, only lohintary ; and he relies on unlike that of the military tenant, Bracton, and also on the opinion of was generally some beast used for Fleta and Britton. The e.xprcs- the purposes of agricultui-e. As sion of Bracton is, '■^ magis f.t de to heriots, see Lord Zouche v. gratia qnam de jure.'''' Dalbiac, Law Rep., 10 Exch. 172. (;«) Hob. 60. 634 BK. TI. OF RIGHTS OF TROPERTY. — PT, I. THIXGS REAL. [tlie lord and tenant are both bound, if it be an indisput- ably antient custom ; but a new composition of this sort will not bind the representatives of either party (»).] And it is further to be remarked, that if the tenement should happen to be at any time divided into distinct shares, either by becoming vested in tenants in common, or by alienation of parcel, in severalty, the heriot is mul- tipUed accordingly (o) ; though upon the subsequent re- union of the parts in a single owner, the multiplication (at least in the case of a tenancy in common) ceases {p). A copyhold estate, while subject to particular burthens, enjoyed on the other hand, until a comparatively recent period, some exceptional immunities. For it was not assets in the hands of the heir or devisee ; and was consequently exempt, after the tenant's death, from the claims of his creditors {q) ; nor could any part of it be taken in execution, even during his life, upon an elegit (r). But this anomaly is now substantially rectified ; for by 3 & 4 Will. IV. e. 104, a man's copyhold or customaryhold estate (not charged with or devised subject to the payment of his debts) was made, equally with his freeholds, assets in equity in the hands of his personal representatives {s\ ; and by 1 & 2 Yict. c. 110, s. 11, it was made equally liable with freeholds to be seized iu execution under an elegit {t). In order to complete our general view of the copyhold estate, we must also recollect that it is capable, as we have elsewhere noticed, of enfranchisement, or conversion of the («) Co. Cop. 8. 31 ; Parkin v. 1 E. & E. 184. Radcliflfe, lBos.&Pul.282;Croome {q) 4 Rep. 22 a; 1 Watk. Cop. V. Guise, 4 Bing. N. C. 148. 224. As to assets, vide sup. p. (o) 2 Watk. Cop. 149, 159; see 432. Garland v. Jekyll, 2 Bing. 273. (;) 2 Eq. Ca. Ab. 226, pi. 6 ; 1 (^p) See Attree v. Scutt, G East, "Watk. Cop. 224. As to elegit, vide 476; Garland v. Jekyll, 2Bing. 273 ; sup. p. 309 ; post, bk. v. c. x. Ilollowayi'. Berkeley, 6 Barn. & C. (.s) Vide sup. p. 434. 2; Queen t;. Manor of Everdon, 16 [C] Vide sup. p. 309. As to the L.J. (Q. B.) 18. On alienation by effect of bankruptcy or liquidation s&VQvaX joint terw.nts, a single heriot in reference to copyhold estates, only isdue; see Padwickt'.Tyndale, vide post, bk. ir. pt. ir. oh. 6. CHAP. XXII. — OF COPYHOLDS. G35 tage tenure into free (ii) ; and that, either hj a conveyance by the lord to the tenant of the freehold estate in the copy- hold premises, or by a release of the seignorial estate and rights (x) ; the effect in either case being, that the tenant thereafter no longer holds of the lord of the manor, but of him of whom that lord held, and by the same free tenure (;//) : from which this consequence also follows, that the tenement is discharged from all copyhold burthens to which it was before subject ; and also divested (in general) of all copyhold rights (for example, that of common) to which it was before entitled (s). Secondly. The incidents of copyhold, in regard to its title or manner of acquisition, are in some respects the same with those of freehold ; and particularly as regards the mode of descent : though this is much varied by the special customs of particular manors (a). There are, how- ever, many incidents of a peculiar kind ; and these, in general, result from the fundamental idea before remarked upon, that the interest of the copyholder is in strictness no more than a tenancy at will. Considered as such, it would be wholly incapable of direct alienation, for that would be a determination of the will {h) ; and therefore to this day, the attempt to transfer a copyhold, either for an estate of inheritance or for life, by any of those direct methods which are applicable to a freehold estate, is (as already remarked) in general attended with no other effect but to occasion a forfeiture to the lord (c) . Yet, by the lord's licence, the copyholder may demise for a term of years (d) ; and, even without his licence, for a single year ; {u) Vide sup. p. 221. on Copyholds, 6tli ed., by Bi-own, {J) 1 Watk. Cop. 362. pp. 178, 193. But lie caunot con- (y) lb. 367. vey, by an ordinary deed, in fee, (2) 3 Real P. R. 17 ; 1 Watk. or for life, even with licence. (2 Cop. 3C8. , Watk.Cop. 119). See, however, the {a) Vide sup. p. 222. Settled Land Act, 1882, s. 20,parti- (i) Vide sui>. p. 292. ciilarly discussed in chap, xxiv., {c) Vide sup. p. 631. infra. It may here be remarked, {d) 1 Watk. Cop. 302 ; Sci'iven that the facilities for making leases 636 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. and custom and the indulgence of tlie law, whicli favours liberty, also allow liim to exercise a substantial, thougli indirect, right of alienation to any extent whatever, whether in fee, for life, or for years, under colour of a surrender of his interest to the lord, and an admittance or grant by the latter, de novo, to the tenant's nominee ; such admittance being attended with those ceremonies of inves- titure, which marked in former days the original donation of a fief ie). The nature of a surrender and admittance is, in a general point of view, and according to the custom of most manors, as follows : [the tenant comes to the steward of the manor, either in court (/), or, if the custom permits, out of court, or else to two customary tenants of the same manor, or to a single tenant provided there be also a custom to warrant it {g) , — and then by delivering up a rod, a glove, or other symbol, as the custom directs, resigns into the hands of the lord, by the hands and acceptance of his said steward, or of the said two tenants, or tenant, all his interest and title to the estate ; in order that the same may be again granted out by the lord to such persons and for such uses as are named in the sur- render, and as the custom of the manor will warrant {It). Upon such surrender, the lord, by his steward, accordingly grants the same land again to the surrenderor's nominee, who is usually, though rather improperly, called the sui-- renderee, to hold by the antient rents and customary of "settled" estates of lands of (/) As to the customary court freehold tenure already referred to here referred to, vide sup. p. 220. (sup. pp. 252, 258, 266, 279), are By 4 & 6 Vict. c. 35, surrenders by 40 & 41 Vict. c. 18, s. 9, ex- and admittances may now, in all tended to settled estates of copy- cases, be made out o/coiirt. hold or customary tenure, (saving {g) 1 Watk. Cop. 78. the lord's rights.) See also the (A) Such uses are not affected by Settled Land Act, 1882, particularly the Statute of Uses (vide sup. p. 367), discussed in chap.xxiv., infra. As Avhich A(^ has no application ex- to the proper stamj) on a licence to cept to freoholds. (1 Watk. Cop. demise, see 3S & 34 Vict. c. 97, in 100, 212 ; Rowden v. Maltster, Cro. sched. Car. 42 ; Rigden v. Vallier, 2 Ves. (e) Vide sup. p. 189. 257.) CHAP. XXII. — OF COPYHOLDS. 037 [services ; and thereupon admits him tenant to the copy- hold according to the form and effect of the surrender, which must be exactly piu'sued. And this is done by delivering up to the same tenant the rod, or glove, or the like, in tlie name and as the symbol of corporeal seisin of the lands and tenements; upon which admission he pays a fine to the lord, according to the custom of the manor (/).] In order the more clearly to apprehend the nature of this peculiar assurance, let us take a separate view of its several parts, the surrender and the admittance : consi- dered in reference, not to their form (for of that enough has been said) but to the doctrine and principles to which they are respectively subject. 1. [A "surrender" is rather a manifestation of the alienor's intention, than a transfer of any interest in pos- session (/.•). For until admittance of the surrenderee, the lord taketh notice of the surrenderor, as his tenant ; and the surrenderor still receives the profit of the land to his own use, and shall discharge all services due to the lord {I). Yet the interest remains in him not absolutely, but sub modo ; for he cannot pass away the land to any other, or make it subject to any other incumbrance than it was subject to at the time of the surrender;] and he is con- sidered as a trustee for the surrenderee, who has an equitable interest capable of being devised or otherwise assigned {)ii). The latter also has a right to call upon the lord to admit him, and in the event of his refusal may compel him to do so by mandamus or other appropriate proceeding in the High (i) 2 Bl. Com. p. 365. Black- custom the lord is not bound to stone adds that he ' ' takes the accept a sui-rendcr by a deed bur- oath of fealty." But in practice thened iivith trusts. (Flack v. The it is apprehended that this has Master of Downing College, 13 become obsolete, the fealty being C. B. 945.) "respited." As to the stamp duty (/) Hence before admittance the on surrender, see 33 & 34 Vict. lord can maintain no action, for tho c. 97, in sched. As to the costs of fine due in respect thereof, against admittance, see Cole v. Jealous, 5 the surrenderee. (Lord Welleslcy Hare, 51. v. Withers, 4 Ell. & Bl. 750.) (/.•) In the absence of special (y/() 1 Watk. Cop. 102. 638 BK. II. OF RIGHTS OF PROPERTY. PT. I. THINGS REAL. Court of Justice {)i). But no estate whatever is vested in the surrenderee as copyhold tenant, before admittance. [If he enters without, he is, strictly speaking, a trespasser, unless the surrender should operate as a licence to excuse the trespass ; and if, on such entry, he surrenders to the use of another, such surrender is merely void, and by no matter ex post facto can be confirmed as if by relation (o) . For though he be admitted in pm-suance of the original surrender, and thereby acquire afterwards a sufficient and plenary interest as absolute owner, yet his surrender to another previous to his own admittance is absolutely void ab initio; because, at the time of such surrender, he had but a possibility of an interest, and could therefore transfer nothing ; and no subsequent admittance can make an act good which was ah initio void. 2. "Admittance" is the last stage or perfection of copy- hold assurances ; and considered in that light, it may either be an admittance upon surrender by the former tenant, or an admittance upon a descent from the ancestor. In both these the lord is used as a mere in- strument : and as no manner of interest passes into him by the surrender or death of his tenant, so no interest passes out of him by the act of admittance ; and the claim of the tenant who is admitted is solely under him that made the surrender, or under the ancestor (;;). And, therefore, neither in the one case nor in the other is any respect had to the quality or quantity of the lord's estate in the manor. For it is immaterial whether he be tenant in fee or for years, or whether he be in possession by right or by wrong ; since the admittances made by him shall not be impeached on account of his title, because they are («) See 2 Bl. Com. 3G9 ; Scriven Wellesloy, 2 Ell. & Bl. 924. on Copyholds, 6th ed., by Brown, (o) Doe v. Tofield, 11 East, 246, p. 366; E.. V. Manor of Bonsall, 3 251. As to a devise by the sur- Barn. & Cress. 175; The Qiieen v. rcnderee, before admittance, see Powell, I Q. B. 352 ; Doe v. Harri- Matthew v. Osborne, 13 C. B. 919. son, 6 Q. B. 631 ; Queen v. Denby, {p) 2 Bl. Com. 370, cites 4 Eep. 22 L. J. (Q. B.) 39; Queen r. Lord 27; Co. Litt. 59. CHAP. XXn. — OF COPYHOLDS. G39 [judicial, or rather ministerial acts, whicli every lord in possession is bound to perform (q). Admittances, however, upon surrender differ from ad- mittances upon descent, in this, that, by surrender, nothing beyond the mere possibility of an interest is vested in the sm-reuderee, before admittance ; but, upon descent, the heir is tenant by copy immediately upon the death of his ancestor: not indeed to all intents and purposes, for he cannot be sworn on the homage, that is, as one of the tenants present at the lord's coiu-t ; nor maintain an action in the lord's court, as tenant ; but to most intents the law taketh notice of him as a perfect tenant of the land, in- stantly upon the death of his ancestor (r). He may, for example, enter into the lands before admittance ; may take the profits ; may punish any trespass done upon the ground [s) ; may devise the land descended on him (/) ; nay, upon satisfying the lord for his, fine {u) due upon the descent, may surrender into the hands of the lord to whatever use he pleases. For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to entitle him to his fine ; and not so much necessary for the strengthening and completing of the heir's title. Hence, indeed, an observation might arise, that, if the benefit which ^the heir is to receive by the admittance is not equal to the charge of the fine, he will never come in and be admitted to his copyhold in court ; and so the lord may be deprived of his fine. But to this we may reply in the words of Sir E. Coke (.r) — "I assure myself, " if it were in the election of the heir to be admitted, or " not to be admitted, he would be best contented without " admittance ; but the custom in every manor is in this " point compulsory. For either upon pain of forfeiture {q) 4 Rep. 27; 1 Eep. 140. Adol. G4i ; Doe v. Wilson, 5 Ad. (>•) As to the admittance of a & El. 321 ; 7 Will. 4 & 1 Vict. devisee, vide post, p. G42. c. 26, s. 3. (s) 4 Rep. 23. ill) Vide sup. p. 631. {t) Right r. Banks, 3 Bain. & {x) Co. Cop. s. 41. 640 liK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [" of the copyliold, or of incurring some great penalty, the " heirs of copyholders are enforced in every manor to " come into court and he admitted according to the " custom, within a short time after notice given of their " ancestor's decease."] Accordingly (by the custom of most manors) if no person come in to he admitted in the place of a deceased tenant, the lord of the manor, after making due proclamation at three consecutive customary courts, may seize the land into his own hands quousque, that is, until some person claims to he admitted [y) . But though, in the case of an admittance upon surrender, no copyhold estate is vested in the surrenderee until he is admitted, and it is distinguishable in this respect from an admittance upon descent ; yet it is material to observe, that even an admittance upon surrender, when made, has a retrospective relation, in point of time, to the sur- render itself. And therefore if the surrenderor dies after the surrender, and before admittance, though his heir will take by descent in the interim, yet on the admittance of the surrenderee, the heir's estate ,will be defeated (s) . Such is, in general, the nature of a surrender and ad- mittance, in the simplest form ; and the only variations upon the proceeding, which we deem it material at pre- sent to notice, relate to a conveyance by way of mortgage. Here the surrender is made upon condition that the money remains unpaid at the time appointed ; but in the mean- time no admittance takes place ; and if the money be then paid, the surrender not having been perfected by admit- tance, is void without further ceremony {a). Nor is it the {y) 1 Watk. Cop. 290 ; Scriven Junction Canal, 9 Q. B. 469. on Copyholds, 6th ed., by Brown, (;) 1 Watk. Cop. 103; and see pp. 114—117. See, for example, Doe r. Hall, 16 East, 208. In the the case of Walters v. Webb, case of the death of the surrenderee Law Rep., 9 Eq. Ca. 83 ; ib. 5 befoi-o admittance, his devisee must Ch. App. 531. As to the ad- pay two fines to the lord. (Londes- mittance of infants, femes covert, borough v. Foster, 3 B". & Smith, and lunatics, see 11 Geo. 4 & 1 805.) Will. 4, c. 65 ; 16 & 17 Vict. c. 70, (a) As to mortgages in general, ss. 108—110; Dimes r. Grand vide sup. p. 303. CHAP. XXn. OF COPYHOLD-?. 641 usual course to complete the copyhold estate by admittance, even supposing the money to remain unpaid, unless the mortgagee wishes to take possession ; but the conditional surrender constitutes the only security, and continues to do so, until the mortgage is satisfied, and entry of such satisfaction is made on the court rolls ; after which the original title of the mortgagor is considered as remaining in full force {/>). The admittances of whicli we have liitherto spoken are those used to complete an inchoate title by surrender or descent. It is to be observed, however, that there is another kind of admittance, viz., that which is connected with an original voluntary grant from the lord himself, and not with any preceding surrender or descent (c). This occurs chiefly in the case where the lord has himself acquired the copj'hold interest, in consequence of some escheat, forfeiture, descent, surrender to his own use, or other circumstance, so that the fi-eehold and copyhold interest are united in his person (d) ; which produces an extingiiia/niiciit of the copyhold {e). In such cases the lord may, if he thinks proper, notwithstanding the ex- tinguishment of the former copyhold estate, grant the lands out dc novo to hold by copy (/) ; but if he does this he is bound to observe the antient custom precisely in every point, and can neither in tenure nor estate intro- duce any kind of alteration ; for that were to create a new copyhold, which, as this tenure depends on immemorial custom, cannot be done. Thus, if a copyhold for life falls into the lord's hands and he grants it out again by copy, he can neither add to nor diminish the antient rent, nor make any the minutest variation in other respects ((/) ; nor can he charge or encumber, in any way, the tenant's estate so granted (//). (i) 1 Watk. Cop. 116, 117; Burt. {<■) lb. 359, 3(U, 423. Compend. 420. (/) lb. 93, 3C1. (r) 2 Bl. Com. 370. {(/) Co. Cop. s. 41. {d) 1 Watk. Cop. 3G, 30. {/i) 8 Rep. G3. VOL. 1. r r 642 BK. 11. OF RIGHTS OF PROPERTY. — PT. 1. THINGS REAL. The lord may also, where there is a special custom in the manor to that effect, make grants of portions of the ^i'aste, to be held for the first time by copy of coui"t roll (?') ; but a custom to grant out every part of the waste without restriction, would be illegal, as trenching too much upon the general common right of the tenants (A:) ; and to the validity of the grant of any portion, the assent of the hcmage is, by the custom of some manors, essential (/). Again, admittance may also take place in the case of a devise ; for a copyhold estate is now as devisable by will as a freehold. Formerly copyholds were not directly de- visable even when lands of freehold tenure had become so by virtue of the statutes of Hen. VIII. before men- tioned {in). But when a man wished to devise a copyhold, the object was effected by the devisor, in his lifetime, making a surrender to the use of his icill ; which, upon his death, entitled the person, designated in such will as devisee, to be admitted {n) ; and, except by special custom, a devise without a previous surrender of this kind was inoperative (o). However, by 55 Geo. III. c. 192 (passed 12th July, 1815), every disposition made by will, by a person dying after the passing of that Act, was made as effectual irithout a surrender to the use of his will, as it would have been if such a siu'render had taken place (p). And so by the New Wills Act, (repealing 55 Greo. III. c. 192, except as to wills made before 1st January, 1838,) it is provided that all the real estate of the testator may bo devised ; and under that description, all his copyholds, (j) As to "the lord's waste" in (w) Vide sup. p. 597. a manor, vide sup. ji. 215. As to («) Co. Cop. s. 3G. approving, \ide post, pp. G57, 658. (o) 1 Watk. Cop. 122 ; see Doer. (/,) 1 Watk. Cop. 35 ; see Lord Bartle, 5 Barn. & Aid. 492 ; Cuth- Northwick v. Stanway, 3 Bos. & bert v. Lcmpriere, 3 M. & S. 158. Pul. 346 ; The King v. Wilby, 2 M. [p) See Doe v. Thompson, 7 Q. & S. 509 ; Badger v. Ford, 3 B. & Q. 897 ; Glasse v. Richardson, 2 Aid. 153. De G., M'N. & G. 659 ; Traheme {J} As to this assent, see 4 & 5 v. Gardner, 5 Ell. & Bl. 913. Vict. c. 35, s. 9. CHAP. XXn. — OF COPYHOLDS. 643 though he should not have surrendered them to the use of his will, nor have even been admitted to them himself, are expressly included {q). It is, however, incumbent on the devisee to be admitted (as in the ease of a descent) and pay to the lord, one or more fines as the case may be. Copyliold lands may moreover pass by a conveyance under the Act for abolishing fines and recoveries, 3 & 4 Will. IV. c. 74 (r). In some manors an estate limited to a man " and the heirs of his body," might (prior to that statute) have been barred by a customary recovery, founded on a fictitious action in the lord's court, according to the analogy of a common recovery in the Comi of Common Pleas {s) ; in others, such customary estate tail was capable of being barred by surrender (^). But by the statute in question it was enacted, that a disposition by tenant in tail of the legal estate in a copyhold, shall in every case be by surrender («) ; subject to provisions as to the consent of the protector of the settlement (where there is one), analogous to those which the statute introduced in relation to the disentailing of freehold lands (x) : but it is provided that such surrender (differing in this respect from a disentailing deed of freeholds) shall require no enrolment, otherwise ((?) 7 Will. 4 & 1 Vict. c. 20, s. 3. it might be reversed by a particular (See Garland v. Mead, Law Rep., form of action, broug-ht by the lord, 6Q. B.441.) This power of devise called a ivrit of dhceit ; and the extends toa copyhold held j;«>*a!(^re land consequently restored to its t)ie (vide sup. p. 452). former state of copyhold: but if ('/•) The provisions of this Act as the fine or recovery -were not duly to land held by copy of court roll, reversed, the tenure of the land do not (it would seem) extend to would be thereby altered, and con- land held as customarij freehold. verted into frank fee or freehold. (R. V. Ingleton, 8 Dowl. P. C. (2 Bl. Com. 368 ; and see 3 & 4 C93.) "Will. 4, c. 74, s. 5 ; also, Scriven (s) Doe V. Dauncey, 7 Taimt. on Copyholds, 6th ed., by Brown, 674 ; 1 Watk. Cop. 161. As to a pp. 35— 37.) common recovery, vide sup. p. 571. (f) Doe v. Dauncey, 7 Taunt. If a fine or recovery of land held 678 ; 1 Watk. Cop. 178. in antient demesne were levied or (i<) 3 & 4 Will. 4, c. 74, s. 50. suffered in the Court of Conmion [x] Sects. 40, 51, 52, 90. Pleas as tliough it were freehold, •r T 2 644 BK. TI. OF RIGHTS OV PROPERTY. PT. I. THINGS REAL. than by entry on the court rolls (i/). It is also enacted by the same Act, with respect to the copyhold of a married woman when not tenant in tail — for when she is so, her estate is to pass by surrender as before the statute, i. e. by the surrender of herself and husband, she being at the same time examined apart by the steward (s) — that she may by deed, acknowledged in such manner as therein directed, and executed with the concurrence of her hus- band, convey her estate, or extinguish any interest or power vested in her, as effectually as if she were a feme sole ; though this enactment is expressly declared not to extend to her legal estate in any case in which the object of that provision could, before the passing of the Act, have been effected by a surrender {a). The preceding remarks relate, it will be observed, to the manner of conveying the legal estate in coj)yhold lands. With respect to cquitahJe interests in lands of this tenure, they do not in general pass by surrender, for none but the owner of the legal estate is tenant to the lord, nor conse- quently entitled to surrender {b) ; but by any ordinary mode of conveyance sufficient to pass an equitable interest in other cases : and a mere instrument in writing, signed as directed by the Statute of Frauds, will suffice (c). But as to equitable estates tail, and the equitable estates of married icomen not tenants in tail, it is provided by the Fine and Recovery Act, that they shall pass either by surrender or by a disentailing or other deed, attended with the same formalities in general which are prescribed by that statute in reference to a transaction affecting legal estates {d). We have thus endeavoured to trace the principal features of the law of copyhold ; one of the most imsatisfactory (y) 3 & 4 Will. 4, c. 74, s. 54. {b) 1 W:itk. Cop. 60. (r) Sco 1 Watk. Cop. 63 ; Kewley (c) lb. ; vide sup. p. 379. V. Ryan, 2 H. Bl. 344 ; Driver v. {d) 3 & 4 Will. 4, c. 74, ss. 50, Thompson, 4 Taunt. 294. 53, 77, 90. {a) 3 & 4 Will. 4, c. 74, s. 77. CHAP. XXII. — OF COPYHOLDS. 645 divisions (it is generally considered) of tlie fabric of our jurisprudence (c). It is obviously open to the observation that it is (in many important respects) a variation upon the fundamental scheme of tenure; and it was justly remarked by the commissioners appointed in the ninth year of Greorge the fourth to revise the law of real property, that where the complexity which must always belong to the legal institutions of a civilized country " is wantonly " aggravated by the admission of several concurring sys- " tems, serious mischiefs are likely to arise from the igno- " ranee or forgetfulness of practitioners ; and even of " judges, however carefidly selected." And the learned commissioners (not regarding the original beneficence of the copyhold tenure, but dwelling upon its present em- barrassments) pointed out many specific inconveniences incident to the tenure; to wit, the multiplicity and un- certainty of the different manorial customs, the check to agricultural improvement occasioned by the state of the law "with resj)ect to timber and minerals, — the liability to fines — the numerous payments due to stewards on account of fees, — and the vexatious and oppressive character of heriots. The efforts of legislative reform have, however, since that report was made, been assiduously dii-ected towards this branch of the law ; and have resulted in certain statutes, viz., the 4 & 5 Yict. e. 35, 6 & 7 Vict. c. 23, 7 & 8 Vict. c. 55, 15 & 16 Vict. c. 51, 21 & 22 Vict. c. 94, 23 & 24 Vict. c. 59, and 31 & 32 Vict. c. 89, by which new regulations of great importance have been intro- duced (./). These Acts apply themselves to the following {e) A Select Committee of the the copyhold tenure never took root House of Commons, appointed to in Ireland; and generally the cen- consider as to the enfranchisement siu-es of one age are often the result of copyholds, expressed an opinion of an imperfect knowledge of the in their Report of 13th August, circumstances of an earlier age. 1838, that this tenure is "a blot (/) By 21 & 22 Vict. c. 94, the " on the jui'idical system of the Copyhold Act (16 & 17 Vict. c. 57) " country." More recently, how- is repealed ; and by 23 & 24 Vict, ever, statesmen have lamented that c. ^)9, s. 4, some of the enactments 646 BK. II. OF lilGHTS OF PROPERTY.— PT. I. THINGS REAL. objects : first, to give effect to agreements for the commuta- tion of manorial bui'tliens and restrictions, and to improve, in some other respects, the tenure itself ; secondly, to facilitate the conversion of that tenure into freehold. In jiromotion of these views the statutes establish a Board of " Copyhold Commissioners " {(j) ; and enact, that the future rents, fines, and heriots, and the lord's right in timber, and also (if so expressed) in mines and minerals, may in all cases be commuted by an agreement, which shall be compulsory on all parties interested in the manor, or in the lands held of the manor ; provided the parties to such agreement be respectively interested in such manor and lands to the extent of three-fourths at least in value, and the number of the tenants be at least three-fourths of the whole : and also provided that all ecclesiastical and other corporations and patrons of livings, interested in such manner as mentioned in the Acts, be parties to the agreement; and that it be afterwards confirmed by the Commissioners {h) . The Acts also authorize commutation to be, in like manner, made between the lord of the manor and any one or more of his tenants, whatever may be the amount of their respective interests ; so as to be binding (after con- firmation by the commissioners) on those parties, and on all other persons connected with them in title : though, both in this case and in the former, notice is to be given to the persons next in remainder, reversion, or expectancy, of any estate of inheritance in the rights to be commuted, — not being parties to the agreement, —and sucli persons referred to in the text, are amended Commissioners (45 & 46 Viet. c. 38, as to estates vested in the univer- s. 48) ; and to this board is also sides. entrusted the execution of the Im- {ff) 4 &5 Vict. 0. 35, s. 2. "With proveraent of Lands Act, 1864 this board, the Tithe Commis- (27 & 28 Vict. c. 114), and of eiouers and the Inclosure Commis- the like improvements under the sioners are now consolidated (see Settled Land Act, 1882. 14 & 15 Vict. c. 53 ; 25 & 26 Vict. (/() 4 & 5 Vict. c. 35, es. 13, 22, c. 73 ; 41 & 42 Vict. c. 70), and 23. all are now known as the Land CIlAl'. XXII. — Of COPYHOLDS. 647 are permitted to urge before the commissioners any objec- tion to the proposed arrangement (i). And after a com- mutation duly effected, the lands, although still remaining copyhold for most purposes, cease to be subject to any customary mode of descent ; or to any custom relating to dower, freebench, or tenancy by curtesy, except as to persons married before the commutation took place : and become Hable, in all that regards those matters, to the same law as lands held in free and common socage (J). Besides these facilities for commutation, certain im- provements of copyhold tenure are introduced into the above Acts. Thus, to remove doubts before existing on the subject, it is provided, that it shall be laTvful for the courts to make partition of copyhold lands, as well as of lands of freehold tenure (/•). And to obviate certain incon- veniences previously attaching to the practice of surrenders, admittances and grants, it is enacted, that lords of manors, (or theu' stewards or deputy stewards,) may hold cus- tomary courts, though there should be no copyhold tenant at the time, or none should be present ; and may grant lands to be held by copy, and also admit to lands to be held by copy, at any time or place (whether within or without the manor), and without holding a court (/). And whereas before these statutes it was in many cases neces- sary that a surrender, or other act out of court, should be afterwards presented in court by the homage, or tenants of the manor there assembled {ui), — it is provided that every copy of a surrender, will or codicil delivered to the lord, steward or deputy, and every grant and admission, shall be forthwith entered on the court rolls of the manor ; and that such entry shall be taken to be an entry in pursu- (i) 4 & Vict. c. 35, s. 52. (/.■) 4 & 5 Vict. c. 35, s. 75. {j) Sect. 79. Lands in Kent (/) Before the Act, a customary held on gavelkind are, however, court could not be held unless two excepted from the operation of the copyholders at the least were pre- Copyhold Acts. (Sect. 80 ; 15 & 16 sent. (3 Real Property Rep. 20.) Vict. c. 51, s. 34.) (w) 1 Watk. Cop. 79, 80. G48 1;K. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. ance of a presentment : and that it shall not be essential in any case to the validity of an admission, that a present- ment should be made of the surrender, or other matter in consequence of which the admission was granted ; with this proviso, however, that when, by the custom of any manor, the lord is authorized, by consent of the homage, to grant parcel of the waste to be held by copy, the consent of the homage assembled at a customary court, duly sum- moned and held according to the custom, shall still be necessary. And whereas by the custom of some manors, a licence from the lord to aliene is required, and in some of these cases lords were restrained, by the custom, from granting licences to their tenants to aliene their antient tenements, otherwise than by entireties, — it is enacted that licences to aliene parcels may now be granted, and such alienation may be made accordingly [n). With the view of facilitating enfranchisefnent, that is to say, the conversion of copyhold into freehold, the Copy- hold Acts provide, in substance (for no minute detail can be attempted in this place), that, with the consent of the commissioners, it shall be lawful for the lord, what- ever may be his interest, to enfranchise all or any of the lands holden of his manor ; and that it shall be lawful for any tenant (whatever his interest), with the like con- sent, to accept such enfranchisement. And it is also enacted, that even independently and in the absence of any mutual agreement upon the subject, it shall be law- ful for any copyhold tenant — other than one who holds only for life or lives or years, without right of renewal — or for any copyhold lord, to require and eon/pel enfranchise- ment, — the amount, nature and particulars of the com- pensation for the manorial rights being ascertained and (ticarded (unless the parties can agree), under the direction of the copyhold commissioners (o) . It is also provided, («) See iWatk. Cop. 287, n. (r), 21 & 22 Vict. c. 94, s. 6. See 322; 4 & 5 Vict. c. 35, s. 02. Lingwood v. Gycle, Kaw Rep., 2 (o) 15 & 16 Vict. c. 51, 8s. 1,7; C. P. 72. ciiAr. XXII. — OF ('orYHOLi)s. 649 that tlie expense of a compulsory enfranchisement shall be borne by that party (whether the lord or the tenant) who shall have required the same (p) ; that upon every enfran- chisement (whether compulsory or voluntary) being effected, the land shall become in all respects of freehold tenure (q), and cease to be subject to any particular custom whatever (r) ; but that, on the other hand, no compulsory enfranchisement shall compulsorily affect any right as to mines or minerals ; or any right of fair or market ; or in respect of game, fish, or fowl (.s) . {p) 15 & 16 Vict. c. 51, s. 30. rally Scriven on Copyholds, 6tli ed , Such expenses may be charged on by BrowTi, pp. 281 — 298. the manor or on the land enfran- (r) 15 & 16 Vict. c. 51, .s. 34. chised. (21 & 22 Vict. c. 94, s. 24.) But as to gavelkind land in Kent, {q) See Brabant v. Wilson, Law vide sup. p. 647, n. Rep., 1 Q. B. 44 ; and see gene- (s) Sect. 48. 650 UK. II. OF lUGHTS OF PROPERTY. — PT. I. THINGS REAL. CHAPTER XXIII. OF liNCORPOREAL HEREDITAMENTS, CALLED ALSO " PURELY incorporeal" HEREDITAMENTS. An incorporeal hereditament, wliicli, according to the arrangement formerly laid down, now presents itself in its turn for consideration, is in its wider sense any possession or subject of property, whether real or personal, capable of being transmitted to heirs, and not the object of the bodily senses (a). But as there is scarcely any instance of property of this description amongst things personal {h) — ■ for these almost invariably pass not to the heir, but to the executor or administrator, — the term incorporeal here- ditament is, in effect, exclusively applied to the class of things real; and may consequently with propriety be defined as a riglit annexed to, or issuing out of, or exer- cisable within, an hereditament corporeal of that class (c) . Thus a man may have a right of common of pasture for his cattle, or a right of way (both of which are incorporeal hereditaments) to be exercised over the land (which is {(() Vide sup. p. 170. Its defini- to include remainders and rcvcnions tion in Blackstone (vol. ii. p. 20) (as distinct from estates in 2}csses- is "aright issuing out of a thing sion) in coriwreal hereditaments "corporate (whether real or per- (Hale, Anal. ; 2 Sand. Uses, p. 39); " sonal), or concemiug, or annexed and Avhen the term " incorijoreal "to or exercisable within the hereditaments" is used in this last- " same." mentioned sense, then the phrase (i) An annuity descendible to a " purely incorporeal heredita- wrt«'« /((•»•« is, however, an instance ments " is a convenient phrase that occurs. (Co. Litt. 20 a.) to denote the incorporeal here- (<•) lb. G a, 20 b; Plowd. 170. ditaments which are the subject The term "incorporeal heredita- of consideration in this chaj^ter. mcnt" has been also applied so as CHAP. XXm. — OF IN'CORPOKEAL HEREDITAMENTS. 651 corporeal) of another person. [As the logicians speak, corporeal hereditaments are the substance, which may he always seen, always handled ; incorporeal hereditaments are but a sort of accidents, which inhere in and are sup- ported by that substance ; and may belong or not belong to it, without any visible alteration therein. Their exist- ence is merely in idea and abstract contemplation ; though their effects and profits may be frequently objects of our bodily senses. And indeed if we would fix a clear notion of an incorporeal hereditament, w^e must be careful not to confound together the profits produced, and the thing or hereditament which produces them. Thus if we take the example of the right of feeding cattle in another's land, the grass, which is the fruit or product of the right, is doubtless of a corporeal nature ; yet the right itself is a thing invisible — has only a mental existence, and cannot be delivered over from hand to hand.] Incorporeal here- ditaments seem never to have been reduced to any regular « system of division, nor is even a complete enumeration of them to be discovered in our books. But they consist for the most part — though, as we shall see hereafter, not ex- clusively — of rights ill ah'eiio solo ; and these are generally distributable either into profiis, such as the right to feed cattle, or to take fish, and the like ; or easonciits, tending rather to the convenience than to the profit of the claimant, such as a right of way over the land of another man (d). Incorporeal hereditaments include (amongst other species not requiring specific notice) advoivsons, tithes, commons, ways, tmtcrcoiirses, /iff/its, offices, dignities, francJiises, corodics, ])eiisions, annuities, and rents (e). But for the discussion of {(l) As to this distinction, see 2 & In the case hist cited, it was held, 3 Will. 4, c. 71 ; Robins v. Barnes, that the right cf diawing off water Ilob. 131 ; Peers v. Lucy, 4 Mod. from a well or spring in alicno solo 3Go ; Jac. Diet. "Easement," is in the nature of an easement, "Prescrii)tion;" Maiming v. Was- and not a profit, dale, 5 Ad. & El. 7.')8, 413 ; Bailey (e) 2 Bl. Com. 21. The enmne- r. Appleyard, 8 Ad. & El. 167 ; ration in Hale's Analysis (p. 48), Race I'. Ward, 4 Ell. & Bl. 702. is as follows: — ^' lients, services, 652 BK. II. OF KIGHTS OF PROPERTY. — PT. I. THINGS REAL. many o£ tliese subjects, places more distinctly appropriate will be found hereafter ; and therefore in the present chapter we shall direct the reader's attention to the fol- lowing- heads only: — commons, nrti/s, iratercourses, lights, frcutcldses, and yents (/). I. Common (or right of common) is a profit which a man hath in the land of another, as to pasture beasts thereon, to catch fish, to dig turf, to cut wood, or the like (f/). And the right derives its name from the com- munity of interest which thence arises between the claimant and the owner of the soil, or between the claimant and other commoners entitled to the same right ; all which parties are entitled to bring actions for injuries done to their respective interests — and that both as against strangers and as against each other (/'). There are five sorts of common — common of pasture, common of piscary, common of turbary, common of estovers, and common in the soil. 1. Common of pasture. This is the principal and most frequent sort, being the right which a man has to feed his tithes, commons, and other projiis in cient briefly to state here tliat they alieno solo ; pensions, offices, fran- were both, at the common law, chises, liberties, villeins, dignities.''^ species of allowances in money or (/) Advoicsons and tithes will be food, payable by religious houses more conveniently discussed as part to the king, their founder, for the of the general law relating to the sustenance of his servants. (See church (\dde post, bk. iv. pt. ii. Cowell's Inter, in tit. ; F. N. B. f. c. III.) ; while offices and dignities 230, 233 ; 34 & 35 Hen. 8, c. 16.) (which indeed have in most in- [g) 2 Bl. Com. p. 32. As to this stances no connection with the definition, see Lloyd v. Earl Powis, realty) will be more properly con- 4 Ell. & Bl. 485. sidered in that part of the work (/() For the law on this subject, relating to the State or Govern- see Robert jMarys's case, 9 Rep. meut (vide post, bk. iv. pt. i. 113; 1 Saund. by Wms. 346; Smith cc. IX. X.). Such notice as is due v. Earl Brownlow, L. R., 9 Eq. to anmdties will be most ad van- 241 ; "Warrick r. Queen's College, tageously bestowed ujion them in Oxford, L. R., 6 Ch. App. 716 ; connection witli rents (\-ide post, and see generally Scriven on Copy- p. 676) : and with respect to coro- holds, 6th ed. by Brown, pp. 319, dies and pensions, it will be suffi- 320, 378, 379. CHAP. XXITI. — OF TNCOT^POTIEAL TIERFDITAMENTS. G53 beasts on another's land; and it is either aj>pen(hnif, aj)pur- totatit, bccaitse of vicinage, or in gross {i). Common of pasture appendant is the privilege belonging to the owners or occupiers of arable land holden of a manor, to put upon the wastes of the manor (usually called commons) their commonable beasts (/r) ; that is, such beasts as are necessary either for the ploughing of land or for its manuring, viz. horses and oxen, cows and sheep (/). This is a matter of imiversal right (m) ; and it originally arose in this manner, that where a lord having a certain extent of waste ground, enfeoffed any one of a parcel of arable land to hold of his manor in socage, for services to be rendered, it was found necessary to allow the feoffee to have common of pasture in the waste ground, as incident to his tenancy ; for he could not plough or manure his own land without beasts, nor could he on the other hand sustain the beasts upon it, while it was sown with corn (n). From this of course it follows, that it is only in respect of arable land that common appendant can be claimed (o) ; though it may be claimed by that name, as appendant to a farm in fact containing pasture at the present day ; for the land shall be presumed (where there is usage to sustain the claim) to have been all originally arable {p). It follows, also, that common appendant is incapable of being created at the present day [q] ; for all manorial tenure must have had existence before the passing of the statute of Quia emptores, in the eighteenth year of Edward the first {>•). ({) Co. Litt. 122. poration of London, Law Eep., 7 [k) A8 to the waste of a manor, Ch. D. 562. vide sup. p. 21o. (>«) 2 Bl. Com. 33 ; 1 Rol. Ab. (/) Year Book, 37 Hen. 7, 31 ; 396, 1. 44 ; Co. Litt. ubi sup. F. N. B. 180 ; 4 Vin. Ab. in tit. (h) Tyringham's case, 4 Rep. Com. (F). It is laid down in the 37 a; Co. Litt. 122 a; Bennett books, that swine, goats, geese, and v. Reeve, Willes, 231 ; Hist. Eng. the like, are not commonable ani- Law, by Reeves, vol. i. p. 262. mals, as "not being necessary to {u) 1 Rol. Ab. 397, 1. 28, 29. " plough or compester the soil." {p) Bac. Ab. Common, (A. I). (Bro. Ab. tit. Com. 13 ; Fin. Law, {q) 1 Rol. Ab. 396, 1. 42; Tear 56 ; Co. Litt. 122 a.) But as to Book, 26 Hen. 8, 4 a. siciiie, and the right of pannage for (;•) Vide siqi. ji. 234. their support, see Chilton r. Cor- 654 BK. II. OP RIGHTS OP PROPERTY. — PT, I. THINGS REAL. Common apjjurtenanf, whicli has been said to be fre- quently confounded with common appendant (s) , ariseth from no connection of tenure, nor from any absolute necessity ; but may be annexed to lands in other lordships, or extend to other beasts besides such as are generally com- monable {t) ; as to hogs, goats, geese or the like(?^). This, not arising from any natural propriety or necessity, like common appendant, is not therefore of general right, but can only be claimed by grant, or by the long usage of par- ticular persons to enjoy the same (x) ; which latter title is commonly called a title by prescription ; and is supposed by the law to be founded on a special grant or agreement originally made for this purpose. [Common because of vicinage, or neighbourhood, is where the inhabitants of two townships, which lie contiguous to each other, have usually intercommoned with one another ; the beasts of the one straying naturally into the other's fields, without any molestation from either. Th!?, indeed, is only a permissive right, intended to excuse what in strictness is a trespass in both, and to prevent a multiplicity of suits ; and therefore either township may inclose and bar out the other, though they have intercommoned time out of mind. Neither hath any person of one town a right to put his beasts originally into the other's common ; but if they escape and stray thither of themselves, the law winks at the trespass (y).] In close connection with this, and substantially of the same kind, is the right described in the books as common of shack — or the right of persons occupying lands, lying (.v) See Bennett v. Keevc, Willes, where it will be explained ichat 232. length of usage is sufficient to {t) Sachoverill t'. Porter, Cro. Car. create a prescription. 482 ; 1 W. Jones, 397, S. C. (y) Co. Litt. 122 a. As to com- (?<) Vide sup. p. 653, n. n\on pur cause de vicinage, see Heath {x) Tyringhani's ease, 4 Eep. v. Elliott, 4 Bing. N. C. 388 ; 36 b; Cowlan v. Slack, 15 East, Jones v. Eobin, 10 Q. B. 581; 108; Morloy v. Clifford, 20 Ch. Commissioners of Sewers r. Glasse, Div. 753. As to title by prescrip- L. R. 19 Eq. 160. tion, vide post, pp. 688 et seq., CHAP. XXllI. — or IXCOTirOTlEAL HERF.BITAMEXTS. 655 together in the same common field, to tnrn out their cattle after harvest to feed promiscuously in that field (s). In- deed, this kind of common, which in the beginning was but in the nature of a pasture " because of vicinage," and founded on the same reason (a), has now long since in many parts of the country insensibly changed its natiu-e ; and become, by the force of custom, a right so fixed, that even though the owner of any particular parcel should assume, merely on his own authority, to inclose his land in severalty, it would still continue subject to the antient rights of the intercommoners (b). In a case like this (which is of familiar occiu'rence in parts of the country where the land still lies in open field), the right would seem to be properly classed under the head of common f/ppitrteiiaiif {<:■). Common in gross, or at large, is such as is neither appendant nor appm^tenaut to land, but is annexed to a man's person, being granted to him and his heirs by deed; or it maybe claimed by prescription (d). This is a separate inheritance, entirely distinct from any other landed property vested in the person to whom the common right belongs. Common of pasture, of whatever kind, may, in respect of time, be either limited or unlimited ; that is, may either bo confined to particular seasons of the year, or last all the year round (c). As to the number of beasts to be turned on, the right is in general subject to restriction ; for all commons (except those in gross) must be either claimed in respect of some number in particular, or at least in such manner as tends to limit the number, as for all cattle /eranf and couchant on the land to which the common is appendant or appurtenant ; that is, for so many as the land is capable of maintaining during the winter. And a claim (i) Corbet's case, 7 Rop. 5; Chces- (<•) Ibid. As to lot-mc.ads or man v. Hardham, 1 Baru. & Aid. common meadows, seeCo.Litt. 4 a. 710; Williams on Rig-Lts of Com- {d) 2 Bl. Com. 34. And see mon, pp. 67, G8. Shuttleworth v. Lc Fleming, 19 [a) Corbet's case, ubi sup. C. B., N. S. G87. {h) Ibid. (e) Bl. Com. ubi sup. Go6 BK. II. OF EIGHTS OF PROPERTY. — PT. 1. THINGS REAL, subject to no limitation of either kind, (except perhaps in the case where an express grant to that effect could be shown,) would be void (/). But with respect to a common in gross, it would seem that it may be either limited to a particular number, or be absolutely unlimited ; which is called a common icithont stint, or sans nomhre {g). 2, 3. Common of piscrir// is a liberty of fishing in another man's water — as common of turhar// is a liberty of digging turf upon another man's ground {h). And with respect to common of turbary, in particular, it may be remarked that, like common of pasture, it may be either by grant or prescription ; and may be either appurtenant or in gross ; but it is usually claimed as appui-tenant, and by prescription ; and as to a common of turbary of this kind, we may notice that it cannot be claimed as appurtenant to land, but only to a house (?) ; and it authorizes not the taking of tm^f except for the purpose of using the same as fuel, in the particular house to which the right is annexed (/.•). 4. [Common of estovers or estoiin'ers (from estqffer, to furnish), is a liberty of taking neeessar// wood for the use or furniture of a house or farm from off another's estate (/) ; and it may be claimed, like common of pasture, either by grant or prescription. These several species of common, when originally es- (/) 1 Saund. by Wms. 28 b, n. nombre is sometimes applied to the (4); Bennett V. Reeve, Willes, 231 ; case of common for cattle levant Benson v. Chester, 8 T. R. 396 ; and couchant, Saund. by Wms. ubi Cheesman v. Hardham, 1 Bam. & sup. But tkis is not the sense in Aid. 711. As to the number of which it is used by Lord Coke, beasts which may be turned on [h) Co. Litt. ubi sup. ; Wilson r. because of vicinage, see Corbet's Willes, 7 East, 121. See Peardon case, 7 Rep. 5. r. Underbill and others, 20 L. J. (y) Co. Litt. 1 22a; How r. Strode, (Q. B.) 133. 2 Wils. 274 ; 3 Bl. C. 237, 239. It (t) Tyringham's case, 4 Rep. has been denied that even a com- 37 a. mon in gross can be sans noinbrc, (/i) Valentine r. Penny, Noy, 145; 1 Saund. 34G. But see Co. Litt. by and see Pepping'. Shakespcar, 6 Ilarg. ubi sup. n. (5). We may T. R. 748. observe here, that the term sans (/) Asto w^ozr/.?, vidcsuj). p. 256. CHAI'. XXIII. — OF INCOIIPOKEAI, HEREDITAMENTS. Go7 [tablished in our law, had all reference, no doubt, to the same object as common of pasture, viz. the maintenance and carrying on of husbandry ; common of piscary being given for the sustenance of the tenant's family ; common of tui"bary for his fuel ; and common of estovers for re- pairing his house, his instruments of tillage, and the necessary fences of his grounds. 5. In addition to the above-mentioned rights of com- mon, there is also common i// ilic soil ; which consists of the right of digging for coals, minerals, stones, and the like {m) ; and this last species, and common of turbary, bear a resemblance to common oi pasture in many respects, though in one point they go much further : common of pasture being only a right of feeding on the herbage and vesture of the soil, which renews annually ; while common of turbary, and of digging for coals, and the like, are a right of carrying away the very soil itself. By the Statute of Merton (20 Hen. III. c. 4) the lord of a manor may inclose against common of ixtsturc {>i), though not in general against common of estovers or of turbary (o), so much of the waste as he pleases, for tillage or wood ground — provided he leaves common sufficient for such as are entitled thereto Qj). This inclosure, when justifiable, is called in law " approving," — an antient ex- pression, signifying the same as "improving" (q). And (ot) Co. Litt 41 b, 122 a ; and see common rights. Cooke on the Law of Rights of (o) 2 Inst. 87 ; Bateson v. Green, Commons, pp. 8, 37 (2nd edit.). 5 T. E,. 416 ; 1 Saund. by Wms. & («) And see 13 Edw. 1, c. 46 ; 3 Pat. 3.53 b, n. {b) ; Arlett v. Ellis, & 4 Edw. 6, c. 3; 29 Geo. 2, c. 36; 7 Barn. & Cres.s. 369. 31 Geo. 2, c. 41 ; 39 & 40 Vict. {p) Arlett v. Ellis, ubi sup.; see 0. 56, s. 31 ; 42 & 43 Vict. c. 37 ; see Patrick v. Stubbs, 9 Mee. & W. 833 ; also 13 Geo. 3, c. 81, and 45 & 46 Lake v. Plaxton, 10 Exch. 196; Vict. 0. 15, for regulation, by the Smith v. Brownlow, Law Rep., commoners, of the mode of enjoy- 9 Eq. Ca. 241 ; Warrick v. Queen's ing their common rights, and for Coll. Oxford, ib. 10 Eq. Ca. 105; and the application of the moneys paid gcnei-ally Scriven on Copyholds, to a committee of the commoners Cth ed., by Brown, pp. 307 — 318. by way of compensaticm for the (7) 2 Inst. 474. VOT,. T. T' r 658 BK, II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [this right is considered as applying equally to any 0"wner of the waste, though he may not fall within the descrip- tion of lord of the manor (r).] But the inclosure of common fields and waste lands, and the consequent extinction of common rights therein, are objects of so much importance to agricultm-al improve- ment, that they were not left in modern times to depend on this antient statute ; hut were introduced very gene- rally, throughout entire manors and parishes in almost every part of the kingdom, by force of local acts of parlia- ment, jiassed from time to time for the purpose. And in aid of this practice was passed the statute 41 Greo. III. c. 109, which consolidated a number of regulations, and made them applicable to every case of local inclosure, so far as the particular Act, under which the proceeding took place, contained no provision to the contrary (-s). It is not, however, merely by force of local Acts, or of the regulations contained in 41 Geo. III. c. 109, thus connected with them, that an improvement of this descrip- tion is now effected ; but they are carried on under the provisions of certain statutes known as " The Inclosure Acts," of which the chief is the 8 & 9 Vict. c. 118, passed in the year 1845 [f). By this Act (which was in substitution for a previous one on the same siibjeet, the 6 & 7 Will. lY. c. 115), after reciting that "it is " expedient to facilitate the inclosure and improvement " of commons and other lands, subject to rights of pro- " perty which obstruct cultivation and the productive em- " ployment of labour ; and to facilitate such exchanges " of lands, and such divisions of lands intermixed or (r) Glover v. Lane, 3 T. E. 445. Vict. c. 83 ; 14 & 15 Vict. c. 53 ; (4) As to the construction of this 15 & 16 Vict. c. 79 ; 17 & 18 Vict, statute (often spoken of as The c. 97 ; 20 & 21 Vict. c. 31 ; 22 & 23 General Inclosure Act), see Doe v. Vict. c. 43 ; 31 & 32 Vict. c. 89 ; Spencer, 2 Exch. G92. 39 & 40 Vict. c. 56 ; 41 & 42 Vict. {t) This Act has been amended c. 56 ; 42 &: 43 Vict. c. 37 ; and 45 by 9 & 10 Vict. c. 70; 10 & 11 Vict. & 46 Vict. c. 15. c. Ill: 11 & 12 Vict. 0.99; 12 &- 13 CHAP. XXIII. — OF TXCORPOREAT, HEREDITAMENTS. 6o9 " divided into inconvenient parcels, as may be beneficial " to tlie respective owners ; and to provide remedies for " the defective or incomplete execution, and for the non- " execution, of powers created by general and local Acts " of iuclosure, and to authorize the revival of such powers " in certain cases " — an extensive and elaborate system of regidations is laid down in reference to these several pm-poses (h). We can attempt no more, however, in this place, than to give a summary statement of its general principle ; which is to establish a board of commissioners under the denomination of " The Iuclosure Commissioners for England and Wales" (./;), who are empowered — on the application of persons interested to the amount of one-third of the value of the lands subject to be inclosed (//), and {/() As to exchanges and partitions of lands under the provisions of the Iuclosure Acts, see 8 & 9 Vict. c. 118, s. 117 ; 9 & 10 Vict. c. 70, 8.9; 11 & 12 Vict. c. 99, ss. 13, 14; 12 & 13 Vict. c. 83, s. 7 ; 17 & 18 Vict. c. 97, ss. 2, 3 ; and 20 & 21 Vict. c. 31, ss. 4—11. It is to be observed that both an exchange and a partition may now, under these Acts, take place on the application of parties interested, even in cases where no proceedings for an inch- sure are pending, or where the lands are not subject to be in- closed. See Miuet v. Leman, 24 L. J., Ch. 545. {x) As to the board of which these commissioners now form part, vide sup. p. 646, n. (y) As to the persons deemed ^^ interested''^ within the meaning of 8 & 9 Vict. c. 118, see sect. 16 of that Act. The description of lands subject to he inclosed given in the 11th section is as follows: — " AU lauds subject to any right of com- mon whatever, and whether su:h I" rights may be exercised at all times, or only at limited times and sea- sons ; or subject to any suspen- sions or restrictions in respect of the time of enjoj'ment ; aU gated and stinted pastures in which the pro- perty of the soil either is or is not in the owners of the cattle or other gates or stints ; all land held, occu- pied, or used in common either at aU times or during any time or season, or periodically, and either for all pui'poses or for any limited purpose, and whether the separate parcels of the several owners of the soil shall or shall not be known by metes or boimds, or be otherwise distin- guishable ; all land in which the property or right to the vesture or herbage, or any part thereof, during the whole or any part of the year, or to the wood or underwood grow- ing thereon, is separated from the property of the soil ; and all lot meadows and other lands, the occu- pation or enjoyment of the separate lots or parcels of which is subject to interchange among the respective I- 2 660 BK. II, OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. provided tlie consent of persons interested to the amount of two-thirds of the value of the land, and of the lord of the manor (in case the lands be waste of a manor), he ultimately obtained, — to inquire into the case, and to report for the information of parliament in reference to the expediency of making such inclosure. And if thereon an Act be passed to the effect that such inclosure be proceeded with, the allotment and inclosure of the lands take place accordingly, — the proceedings being conducted by the aid of a vahier appointed for the purpose, and under the superintendence of the inclosure commissioners (;:) . The 8 & 9 Yict. o. 118, further declares, that imme- diately after such allotment and inclosure of the lands shall have been made, or from such other time as shall be fixed after proper notice, the common or other rights, which it is the object of the inclosure to commute, shall be extinguished accordingly ; and it directs that copies of the award (which is under the seal of the inclosure com- missioners) shall be deposited with the clerk of the peace for the county, and also with the churchwardens of the parish, so that recourse thereto may be freely had by any person interested in the premises [a). It may be noticed, in concluding our remarks on this sub- ject, that by one of the group of Inclosure Acts to which we have referred, namely, by the "Commons Preservation Act, 1876," it is provided that an encroachment on, or inclosure of, a town or village green or recreation ground, having a known and defined boundary, is declared to be a public nuisance, and punishable by way of summary conviction owners in any known course of ro- " Poor Allotments," may be made tation or otherwise." By 11 & 12 under 2 WiU 4, c. 42, and 45 & 46 Vict. c. 99, s. 1, land not subject to Vict. c. 80 ; and they are regulated inclosure may be submitted upon by the 36 Vict. c. 19 ; see Sutton terms to the commissioners for in- Parish to Church, 25 Ch. Div. 173. closure, and it will be inclosed if [z) 8 & 9 Vict. c. 118, ss. 32, 33 ; the commissioners think that course 15 & 16 Vict. c. 79, s. 1 ; 25 & 26 beneficial. Allotments to the " in- Vict. cc. 47, 94. diistrions poor," oomraonly called {"\ 8 & 9 Vict. o. 118, s. 146. cHAi'. xxiii. — OF i>;coki'()ki:ai, ukrejjita.mexts. GGl "before the magistrates ; and that a civil jurisdiction is, by the same statute, given to the county court of the district to hear any case of illegal inclosure, encroachment on, or nuisance affecting any common within the district made after the passing of that Act, and to grant injunctions or make orders of removal or abatement as may be required. An appeal is, however, given to the High Court of Justice {b). II. A second species of incorporeal hereditaments is that of nrtf/Sy or the right of going over another man's ground. We speak not here of hightvays, which are common to the public, and which consequently belong to the division of public and not of private rights {c) ; but of priirtfe ways, in which one man may have an interest and a right, though another be owner of the soil. Such ways may be grounded on actual grant ; as when the owner of land grants, by deed, to another man the liberty of passing over it to go to church, to market, or the like (d) : or they may be by pre- scription ; as if all the owners and occupiers of such a farm have long used to cross such a ground for such a particular purpose {e) : or by custom ; as if a similar practice has obtained with respect to all the inhabitants of a certain hamlet (/) ; for this antient usage supposes an original grant, whereby a right of way was originally created. And upon whichever of these titles the right may stand, it is capable, like that of common, of being either aj^piirtcnant to some particular house or land, or in gross, and annexed to the person of the grantee ; but the existence of ease- ments in gross has latterly been denied {g) ; and the (b) 39 & 40 Vict. c. 56, ss. 29, 30. missiou. (See Wood t\ Leadbitter, See also 41 & 42 Vict. c. 71, s. 3 ; 13 Mce. & W. 838.) and 42 & 43 Vict. c. 37. («) As to title by prescription, (c) As to highways, vide bk. iv. vide post, p. 688. pt. m. ch. VII. (/) 2 Bl. Com. 35. {(I) Unless the grant be by deed, {ff) Rangeley v. Midland Rail. it wonld be a mere revocable per- Co., L. R., 3 Ch. App. 306. 662 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. correct view regarding easements so called in gross appears now to be to either regard tliem as mere licences, or else to find for tliem some possible legal origin, as having been originally appendant or appurtenant to some corporeal hereditament (/?). A right of way may also arise by neces- sity. Thus if A. grants to B. a piece of ground in the middle of his field, he at the same time tacitly and im- pliedly gives him a way to come to it (/) ; for that is neces- sary to its enjoyment (/<•) ; and he may cross his land for that purpose without trespass (/). In like manner a tenant at will shall, after the determination of his interest by the lessor, have free entry, egress, and regress into the land, in order to cut and carry away the emblements ; for when the law gives a right, it gives everything necessary to its exercise {m) . III. Watercourses are also a species of incorporeal here- ditament. A watercourse may be defined, generally, as the right which a man has to the benefit of the flow of water ; and such right most commonly refers to a river or stream, the banks of which belong either to the claimant on both sides, or to him on one side, and to his neighbour on the other (;?) : in which latter case, it may be remarked {h) See Scriven on Copyholds, by Tables at Rome, where a man had Brown, 6th ed. pp. 379—380. a right of way over another's land (?) See Clarke v. Cogge, Cro. Jac. and the proper road was out ofre- 170; Dutton v. Tayler, 2 Lntw. jy«ir, he might go over any part of 1487 ; Howton v. Frearson, 8 T. R. the land he pleased ; and that such 50 ; Morris v. Edgington, 3 Taunt. was the established rule in public 24 ; Billiard v. Harrison, 4 Mau. & as well as private ways. He adds, Sel. 392 ; Hinchliffe v. Lord Kin- that the law of England, in both noul, b Bing. N. C. 24, 25 ; Allan cases, seems to correspond with the r. Gommc, 11 A. & E. 759; Hen- Roman. As to this proposition, see ning V. Burnet, 8 Exch. 187 ; Skull Taylor v. Whitehead, Doug. 745. v. Glenister, 16 C. B., N. S. 81. (w) Co. Litt. 55 a, 56 a. As to (A) See Pomfret v. Ricroft, 1 emblements, vide sup. pp. 268, 288. Wms. Saund. 321, n. 6; Gayfordv. {i>) See Wright v. Williams, 1 Moffatt, Law Rep., 4 Ch. App. 133. Tyr. & Gran. 398 ; Wood v. Waud, (/) Blackstone (vol. ii. p. 36) says 3 Exch. 748. that by the Law of the Twelve CHAP. XXllI. — OF INCORPOllEAL IIEIIEDITAMENTS. 663 that, — unless indeed the river be navigable, for then the bed of it, so far at least as the tide of the sea flows, pre- sumably belongs to the crown (o), — the proprietor of each bank is considered as prima facie the proprietor also of half the land covered by the water ; that is, utiqiie ad medium filum aqua? (p). But a watercourse is distinguishable from the right of merely using the water flowing over the soil, which is incident as of course to the property in the soil itself. For it consists in having the course of the water kept free from any interruption or disturbance to the pre- judice of the claimant of the right, by the acts of persons from without and in parts not within his own territory, — whether owing to a diversion of the water, or its obstruc- tion, or its pollution by any offensive commixture. This right belongs jjrimd facie to every occupier of land over which a stream passes (q) ; for though running water, air and light are all pubiici Juris, yet to a certain extent they are subject (as before shown) to appropriation by force of an actual occupancy (r) ; and he who is in possession of any soil, is prima, facie in possession also of the free course of the streams which flow over its surface («). But the right may be divested by express agreement between the parties interested ; or by long usage, which is evidence of some antient agreement of that description. And there- fore my general claim to have the water of such a stream flowing freely and without distiu'bance over my land, may be successfully opposed by my neighbour, if he can prove (o) Williams v. "Wilcox, 8 Ad. & (*) As to wells, or springs be- El. 333. neath the gi-oiiud, see Wood v. {p) Hale, De Jure Maris, part i. Waud, 3 Exch. 748; Race v. Ward, c. 1 ; Wiiglit V. Howard, 1 Sim. & 4 EU. & Bl. 702 ; Chasemore v. Stii. 190; 2 Rol. Ab. 170. Richards, 2 H. & N. 168; Acton (7) Shmyr. Piggott,3Bulst.340. v. Blundell, 12 JVIec. & W. 324; SeeEmbreyt'. Owen, 6 Exch. 3G9. and (where they have a defined (/•) Canliam v. Eisk, 2 Tyi-. 1G6 ; channel or location underground) Taylor v. St. Helen's Corporation, sec Lumb v. Beaumont, 27 Ch. 6 Ch. Div. 264 ; vide sup. i^p. 155, Div. 356. 166. GG4 BK. II. OF RIGHTS OF PROPERTY. — PT, I. THINGS REAL, that, bj some grant of mine or of my ancestors, he is authorized to keep up a mill or the like, and thereby to cause an obstruction of the stream — or if he can establish a title by long usage to do so. He has then by grant or by prescription a watercourse for such special purpose (f) ; to wliich the general right I might otherwise have had by occupancy has become subordinate (n). IV. Li'jhts, also, are a species of incorporeal heredita- ments {x) ; the term being used to express a man's right to have the access of the sun's rays to his windows, free from any obstruction by the occupier of adjoining land. The element of light, like that of water, is capable to a certain extent of appropriation by mere occupancy — for a man on his own land has a right to all the light which will come to him ; and may erect a house (even at the boundary line of his property, and so as to overlook his neighbour) with as many windows as he pleases (//). And by force of {() As to the title by prescrip- tion, vide post, p. 688. {/<) See Mason v. Hill, 3 Bam. & Adol. pp. 1, 304 ; Sampson i\ Hod- dinott, 1 C. B. (N. S.) 590 ; Kensit V. Great Eastern Rail. Co., 23 Ch. D. 566 ; 27 Ch. D. 122 ; Ormerod v. Todmorden, 11 Q. B. D. 155; and as to artificial watercourses, see Arkwright v. Gell, 5 Mee. & W. 203 ; Magor r. Chadwick, 11 Ad. & Ell. 571. {z) As to " lights," see Aldred's case, 9 Rep. 58 b ; Cross v. Lewis, 2 Barn. & Cross. 686 ; Moore v. Raw- son, 3 Bam. & Cress. 332 ; Gan-it«'. Sharp, 3 Ad. k El. 325 ; Hutchin- son V. Copestake, 8 C. B. (N. S.) 102 ; 9 C. B. (N. S.) 863 ; Jones v. Tapling, 11 C. B. (N. S.) 283; 12 C. B. (N. S.) 826 ; Clarke v. Clark, Law Rep., 1 Ch. Ap. 16 ; Yates v. Jack, ib. 295 ; Dent v. Auction Mart, ib. 2 Eq. C. 238 ; Lanfranchi V. Mackenzie, ib. 4 Eq. Ca. 421 ; Heath v. Bucknall, ib. 8 Eq. Ca. 1 ; Aynsley v. Glover, ib. 18 Eq. Ca. 544 ; Hackett v. Baiss, ib. 20 Eq. Ca. 494 ; Smith v. Smith, ib. 500 ; Courtauld v. Legh, ib. 4 Exch. 126; Moore v. HaU, 3 Q. B. D. 178 ; Plate Glass Co. v. Prudential Assurance Co., 6 Ch. Div. 757; Russell V. Watts, 25 Ch. Div. 559 ; 10 App. Ca. 590. See also as to the former custom of London with respect to lights, Shadwell v. Hut- chinson, 2 Bam. & Adol. 97; Wyn- stanly r. Lee, 2 Swanst. 333 ; Salters' Company v. Jay, 3 Q. B. 109 ; Cooper r. Hubbock, 12 C. B. (N. S.) 456 ; Yates r. Jack, ubi sup. (y) PerBayleyand Holroyd, Js., Cross V. Lewis, 2 Barn. & Cress. 689, 691 ; per Littledale, J., Moore V. Rawson, 3 Barn. & Cress. 340 ; and see Chandler r. Thompson, 3 Camp. 82. (IIAP. XXIII. — OF INCOTirOIlEAL IIKREDIJAM KM S. (;()-J a grant, or prescription, he may become entitled to main- tain these windows in freedom from all obstruction (z). But on the other hand, in the absence of any grant, and before the period has elapsed which suffices for the esta- blishment of a prescriptive claim, it is competent to the owner of the adjoining land in his turn to construct a wall or house on it, so near to the building erected by his neighbour, as to intercept the light, which it would other- wise have received ; for his right to erect edifices on any part of his own soil, is as clear as that of the first builder (r/). V. \_FrancJmcs are a fifth species of incorporeal here- ditaments. Franchise and liberty are used as synonj^- mous terms ; and their definition is a royal privilege, or branch of the crown's prerogative, subsisting in the hands of the subject {h). Being therefore derived from the crown, they must arise from royal grant ; or in some cases may be held by prescription, which, as has been frequently said, presupposes a grant {c). The kinds of them are various and almost infinite ; we will here mention some of the principal, premising only that they may be vested in either natural persons or bodies politic ; in one man or in many ; but the same identical franchise that has before been granted to one, cannot be bestowed on another, for that would prejudice a former grant {d). To be a county palatine is a franchise vested in a (:) Blanchard v. Bridges, 4 Ad. s.\)yA\ to siicli franchises as are con- &E11. 195; Swansborouglir.Coveu- nectcd with the realty. The word try, 9Bing. 305; BiiUers t'. Dickin- is used also in a different sense, as son, 29 Ch. D. 155. As to the title in the expression " parliamentary by prescription in the case of lights, franchise," where it imports only vide post, p. 696. the right to vote at the election of («) Blanchard v. Bridges, ubi a member of parliament, sup.; Moore v. Rawson, 3 Barn. & (c) Co. Litt. 114 a ; and see Cress. 340 ; Bonner v. Great Wes- Goodman v. Mayor of Saltash, 7 tern Rail. Co. 24 Ch. D. 1. App. Ca. 633. {b) Finch, L. 164. The defini- (rf) 2Eon. Ab. 191; Keilw. 196. tion by Finch can only be said to 666 BK. II. OF RIGHTS OF PROPERTY.— PT. I. THINGS REAL. [number of persons (e). It is likewise a franchise for a number of persons to be incorporated, and subsist as a body politic, with a power to maintain perpetual succes- sion, and to do other corporate acts ; and each individual member of such corporation is also said to have a franchise or freedom.] So there may be a franchise to have a bailiwick or liberty exempt from the sheriff of the county, wherein the grantee only and his officers are to execute all process (/) : and other franchises there are which are frequently annexed to tnaiiors (g) ; as for a man to hold a court leet, in certain cases, among the tenants and resi- dents of his manor (//), So there may be a francliise to have waifs, wrecks, estrays, treasure-trove, royal fish, and forfeitures (/) ; the nature of which will more particularly appear when we come to speak of the crown's preroga- tive {k) : to have a fair, market, ferry, or the like, — with the right of taking toll there (/) : or to have forest, chase, park, warren, or fishery. Among these there are many which belong, in point of arrangement, to other parts of the present treatise ; but to others more particular notice is due in this place. 1. And, first, as to fairs, markets, and ferries. A man may have a right to hold a fair or market, or to keep a boat for the ferrying of passengers ; and this either by act of parliament, by royal grant, or by prescription (;;?). (e) As to counties palatine, vide to their nature, vide post, bk. iv. sup. p. 129. pt. I. c. Tii. (/) See 13 & U Vict. c. 105, for (A) Vide post, bk. iv. pt. i. c. vi. facilitating the union of liberties (/) As to the tolls or fairs or with the counties in which they are markets belonging to the crown, see situate ; and 21 k 22 Vict. c. 22, 1.5 & 16 Vict. c. 62, s. 6. abolishing certain franchise prisons. (;«) 2 Inst. 220 ; Trotter v. Harris, {ff) As to manors, vide sup. p. 214. 2 Y. & J. 285. Fairs and markets (/() As to a court leet, vide post, are often regulated by act of par- bk. VI. c. XIV. lianient ; and see 10 & 11 Vict. (i) Blackstone (vol. ii. p. 37) c 14 (called "The Markets and adds "deodands" to these instances Fairs Clauses Act, 1847"), consoli- of franchises; but by 9 & 10 Vict. dating into one statute certain pro- c. 62, deodands are abolished. As visions usually inserted in such acts CIIAl'. XXTIl. — OF INCOEPOREAL HEREDITAMENTS. 667 But no other title thau those will suffice ; for no fair, market, or ferry can be lawfully set up without licence from the crown {)/). On the other hand, a man may, under such titles, lawfully claim to he lord of a fair or market, though he be not the owner of the soil on which it is held (o) ; or to be the proprietor of a ferry (j)), though he be not the owner either of the water over which it is exercised (q), or of the soil on either side of the river {>•) ; but, in such cases, he must possess over the soil such rights, at least, as will authorize him to embark and disembark his pas- sengers thereon (s). The right to take toll, also, from the customers, is usually — though in the case of a fair or market not necessarily — a part of the privilege (/) ; and the tolls of a fair or market are due either in respect of goods sold there (that is, from the seller, not the buyer), or for stallage or pickage, or the like, in respect of stalls or poles fixed in the soil («). But the right of the crown to authorize the collection of tolls is viewed by the law with a salutary jealousy ; so that no burthen of that kind can be imposed on the public, unless it have (in the lan- guage of the books) a reasonable commencement (.r) ; that of reg-ulation. As to days of hold- per Littledale, J., E. r. Starkey, ing fairs and markets, see 2 7 Hen. 6, 7 Ad. & E. 10(3. c. 5, and 36 k 37 Vict. c. 37. As to (p) See Newton v. Cubitt, 12 C. Greenwich market, see 12 & 13 Vict. B., N. S. 32. As to antient ferries, c. 28. As to a metropolitan market see also Letton v. Gooddcu, Law in lieu of Smithfield, 14 & 15 Vict. Eep., 2 Eq. Ca. 123. c. 61. As to iH-eventiug- unlu^vful (f/) Com Dig', in tit. Piscary, B. fairs in the metropolitan police dis- (;■) Peter v. Kendal, 6 B. & C. trict, see 31 & 32 Vict. c. 106. As 703. to the Secretary of State's power (s) Ibid. to abolish certain fairs, see 34 & 35 {t) Heddy v. Wheelhouse, Cro. Vict. c. 12. Eliz. 558, 592 ; Lord Egremont v. {)i} 2 Imt. 220; R. v. Marsdon, Saul, G Ad. & El. 924 ; R. t'. Starkey, 3 Burr. 1812; WiUes, 512, (n.) ; 7 Ad. & El. 106. Com. Dig. Piscary, B. ; Hale, dc . (u) 2 Inst. 219. Jure Maris, part i. c. 2. (x) 2 Bl. Com. 37 ; Mayor of (o) Bac. Ab. Fairs, &c. D. n. {a) ; Nottingham v. Lambert, Willes, Mayor of Northampton r. Ward, 2 116. Stra. 1238; 1 Wils. 107; but see GG8 BK. II. OF RIGHIS OF PKOPEKTY. PT. I. THINGS REAL. is, unless it be founded on an adequate consideration, as between the public and the grantee : which consideration, in the case of a fair or market, is the duty incuiDbent on the grantee to provide ground for the purpose, and to re- gulate the proceedings ; in that of a ferry, to keep up a boat for a passage over a stream not otherwise ford- able (//). And it is also essential that the burthen be reasonable in its amount (;:) ; for where the tolls granted are outrageous, the franchise is illegal and void (a). It is however to be remarked, that, when any one of the privileges in question can be shown to exist, the party entitled to it has a right of action, not only against those who refuse or evade payment of toll where it is due, but also against those v/ho disturb his franchise by setting up a new fair, market, or ferry, so near to his as to diminish his custom {b) ; while on the other hand he is himself liable to be criminally indicted, if by his wilful act, or even by his neglect of duty, the subjects of the realm are obstructed in its lawful use {c). 2. As to the franchises of forest, chase, park, warren, and fishery, — A forest (in the legal sense) is the right of keeping, for the purpose of venary and hunting, the wild beasts and fowls of forest, chase, park, and warren, (wliich means in elfect all animals pursued in field sports,) in a certain ter- ritory or precinct of woody ground or pasture set apart for the purpose ; with laws and officers of its own, esta- blished for protection of the game {d) . It is a principle of (y) Heddy v. Whcelhouse, Cro. & W. 375 ; Pim r. Curell, 6 Mee. Eliz. 558, 592. & W. 231. And see Manchester (z) lb. ; 2 Inst. 219. Corporation v. Lyons, 22 Ch. Div. («) Stat. Westm. 1 (3 Edw. 1), 287 ; Goldsmid v. Great Eastern c. 31 ; 2 Inst. 219 ; Cro. Eliz. ubi Rail. Co., 25 Ch. Div. 611 ; 9 App. snp. ; 2 Bl. Cora. 37; Willcs, 116. Ca. 927; Att.-Gen. r. Horner, 14 (i) 2 Roll. Ab. 140 ; Com. Dig. Q. B. D. 245. Action on the Case for a Nuisance, [c) Willes, 512, (n.) ; Payne v. (A); Blissetf. Hart, Willes, 503; Partridge, 1 Show. 231. De Riitzen r. Lloyd, 5 Ad. & E. {d) Co. Litt. 233 a ; Manwood, 456 ; Bridgland r. Shapter, 5 Moe. Fore.'st Laws, 41, 52, edit. 1665. CHAP. XXIII. — OF INCOKrORKAI. HEREDITAMENTS. G69 our law, that will be noticed more fully in its proper place, that in general no man can make title to animals force natarw — for these, while they remain wild, are accounted huIUhh in bonis, or (what amounts to the same thing) as the common proj)erty of mankind. From this it results, that, though a man may take or kill on his own lands any particular animals fercR naturce, that may happen to be found there (subject to the restrictions imposed by the Game Acts), and so that he invade not any exclusive franchise of sporting, which another person may possess over the same territory [e), — yet he is not at liberty to confine beasts of venary in a wild state within a particular precinct, for the mere purpose of diversion (even though on his own soil) ; for this is in some sense to appropriate what belongs equally to others, and is in the nature of an unlawful monopoly (/). Such at least was the prin- ciple of the antient law, which appears in this particular to remain unaltered ; though by a distinction introduced in comparatively modern times, some kinds of animals fene natiircc, such as deer, rabbits, and the like, may be {e) Case of Monopolies, 11 Rep. viz., that in general every man has 87 b. Biackstone (vol. ii. p. 415) a right to hunt, &:c. on his own supposed that the Norman race of grounds (see Wilk. Leg. Angl. Sax. kings introduced the doctrine, that LL. Can. c. 77) — a right, however, the right of pursuing and taking that is siibject to such modification beasts of venary belongs in everj^ as mentioned in the text. See Chit, case to the sovereign only, or those Game Laws, 3 ; 1 1 Rep. 87 b ; Ld. by him authorized; and he con- Raym. 251; Salk. 555 ; LordDacre sidered this as a still existing doc- v. Tebb, 2 Bl. Rep. 1151 ; et post, trine of our law, and held that bk. ii. pt. ii. c. zx. (however common the contrary sup- (/) None can make a park, chase, position might be) no private per- or warren, without the king's li- son was entitled at common laAV to cence : for that is, quodammodo, to kill game, unless he could show a appropriate those creatures which right of freewarren. But Black- are force naturce, and nullius in stone's views on this subject have bonis, and to restrain them of their been with reason controverted ; and natural liberty; Case of Monopolies, the true rule seems always to have 11 Rep. 87 b ; and see ibid. 86 a ; been that which is stated by him- 2 Roll. Ab. 33, 812 ; 2 Inst. 199 ; self, as allowed among the Saxons, Com. Dig. Chase (D). G70 BK. IT. OF RIGHTS OF PROPERTY, — PT. I. THINGS REAL. lawfully kept bj any person in an enclosed place, if pre- served as property, and not merely for tlie purpose of the chase {g). But the right to keep up animals in a wild state for mere diversion, though forbidden to the subject, has been at all times claimed, as a matter of prerogative, by the sovereign. [For we find, that even among the Saxons there were woody and desert tracts called the forests (/'), which, having never been disposed of in the first distribution of lands, were held therefore to belong to the crown ; and that these were filled with great plenty of game, which our royal sportsmen reserved for their own diversion, on pain of a pecuniary forfeiture for such as interfered with their sovereign. But every free- holder had the full liberty of sporting upon his own terri- tories, provided he abstained from the king's forests, as is fally explained in the laws of Canute (/), which indeed was the antient law of the Scandinavian continent (/.•), from whence Canute probably derived it (/).] Afterwards, upon the Conquest, the Norman race of sovereigns ex- ceeded even their predecessors in the eager enjoyment of this branch of the prerogative ; for not only did they extend the limits of the antient forests, by encroachment on the lands of their subjects, and lay out new ones at their pleasure, without regard to the rights of private property (;;^), but they established a particular system of fored law (ji), under colour of which the most horrid tyrannies and oppressions were exercised (o) : so that our {ff) See Davies v. Powell, Willes, quandihct feram quoqiio modo vcnari 48; Morgan v. Abergavenny, 8 permissum.'''' — Stiernhook, de Jure C. B. 768. Sueon. 1. 2, c. 8. • {h) It mil be remarked that the [l) 2 Bl. Com. 415. term " forest " is applied in law, {m) Manw. 319 ; 4 Inst. 300, SOI. both to the franchise itself and to («) 1 Hist. Eng. Law, by Koeves, the territory in respect of which it 206. is granted. (o) "The penalty for killing a (i) Wilk. Leg. Angl. Sax. LL. " stag or boar was loss of eyes — for Can. c. 77. " William loved the great game," (A) " f'liiquc ill propria fiiiidn says tlio Saxon Chronicle, " as if CHAP. XXIII. — OF IXCOUroi^KAL HEREDITAMENTS. 071 ancestors at length became as zealous for its reformation, as for tlie relaxation of the feudal rigours and other exac- tions introduced by the Norman family ; and struggled for the Charia de Fovcdd, as strenuously as for the Great Charter itself {})). By this forest charter, confirmed in parliament in the ninth year of Henry the third (7), many forests unlawfully made (or at least many precincts added by unlawful encroachment to the antient ones) were f//.s- afforented, so as to remit to the former owners their rights (r), — though in the case of such precincts, called thenceforward J'J//r^V^^s, the crown still continued to exer- cise some of its privileges (-s), — while in the forests that remained entire many abuses were reformed or mitigated. And owing to the variety of statutes afterwards made for amelioration of the forest laws, and above all to the entire disuse of them for centuries past by our sovereigns (/), this branch of the prerogative has long ceased to be a grievance to the subject {u). Some of the royal forests however still exist (./■) ; and with some few exceptions, such " he had been their father." — Hal- was made by Charles the first, and lam's Mid. Ages, vol. ii. p. 426, 7th courts were held by the chief jus- edit, tice in eyre, for recovery of the {p) 2B1. Com. 416. king's forestal rights (Hallam's [i]) Its clauses had been pre- Const. Hist. vol. ii. p. 13) ; but by viously incorporated in the Great IG Car. 1. c. 16, the extent of the Charter of John, granted at Runny- royal forests was fixed according to mede. Hallam'sMid. Ages, vol iii. their boundaries in the twentieth p. 222, n., 7th edit. year of James the first ; and no (r) Hist, of Eng. Law, by Reeves, place is to be hereafter accounted vol. i. p. 254. This charter is con- forest, where forest courts had not sidered by Lord Coke as only a been held within sixty years before declaratory law ; and he holds that the first year of the reign of Charles the king could never make forests the first. in the land of his subjects, without {u) 2 Bl. Com. 416. their consent. (4 Inst. 300.) (.r) See 34 & 35 Vict. c. 93, 35 & (s) 4 Inst. 303, 304 ; Com. Dig. 36 Vict. c. 95, 36 & 37 Vict. c. 5, and Chase, 1. Purlieu is variously de- 38 & 39 Vict. c. 6, authorizing a rived from j!;?o' /i«« (exempt place), commission to inquire into rights 4 lust, ubi sup. ; or poiimUcc, per- or claims over the New Forest and ambulation, Com. Dig. Chase, (I.l). Walthara (Epping) Forest ; 14 & 15 (0 An attempt to revive them Vict. c. 43, 21 & 22 Vict. c. 37, 29 672 BK. II. OF RIGHTS OF PKOPERTY. — PT. I. THINGS REAL. as the New Forest in Hampshire, founded by the Con- queror, that of Windsor by Henry the eighth, and that of Richmond by Charles the first (//), are of such remote antiquity, that no trace is said to remain in history of their first creation (z). Though a forest is in general a royal possession, we are nevertheless to observe that it is capable of being vested in a subject {a) ; for if the sovereign grant a forest to a private person, with words expressly authorizing the ad- ministration of forest law there, the grantee will have that franchise to its full extent, with all the appropriate courts and officers (^). It is also to be remarked, that a forest is a right which the owner thereof (whether sovereign or subject) may have either in his own lands or in the lands of another (c) : and in this respect it differs from a right of common, and the other incor- poreal hereditaments above described ; for these rights of common, as they issue out of the soil, cannot exist in the same man who is general owner of the soil itself, (the latter title superseding all inferior claims like these,) and are consequently rights which a man can claim to exercise only in alieiio solo [d] ; but a forest, and indeed all franchises in general, are inheritances collateral to the & 30 Vict. c. 62, as to the forest of n., 3rd edit. Haioault ; 14 & 15 Vict. c. 76, 16 (;) See 4 lust. 319, where it is & 17 Vict. 0. 19, and 17 & 18 Vict. said that the forests in England are c. 49, as to the New Forest ; 16 & in number sixty-nine ; see also as to 17 Vict. 0. 36, and 19 & 20 Vict. the antiquity of the forests, 4 Inst. 0. 32, as to the forest of Which- 293, 294. wood ; 16 & 17 Vict. c. 42, 28 & (a) Co. Litt. 233 a. 29 Vict. c. 16, as to the forest of [h) Case of Leicester Forest, Cro. Whittlewood; 18 & 19 Vict. c. 46, Jac. 155; see Coleridge's Black- as to the forest of Woolmer ; 19 & stone, vol. ii. p. 38, n. (19). 20 Vict. c. 13, as to the forest of (r) 4 Inst. 301, 318 ; LordDacre Dclamcre; 24 & 25 Vict. c. 40, 29 v. Tebb, 2 Bl. Rep. 1151; Sutton i\ & 30 Vict. c. 70, and 34 & 35 Vict. Moody, Ld. Eaym. 251 ; Robinson c. 85, as to the forest of Dean and v. Duleep Singh, 11 Ch. Div. 798. the mines and quarries therein. {d) See Lloyd v. Earl Powis, 4 (>/) As to Richmond Park, see El. & Bl. 485. Hallam's Const. Hist. vol. ii. p. 14, CHAP. XXIII. — OF INCORFORKAL HEREDITAMENTS. 673 ownersliip of the land (r), and may be claimed by a man either in propria solo or in alieno solo (/). The owner of a forest is also considered (notwithstanding the general rule that title cannot be made io things fene naturce) as having a qualified property in the wild animals of chase and venary there found, so long as they continue therein ; and no other person can lawfully take them within those precincts, or chase them from thence and take them in other ground {(j). But if a wald animal strays from the forest, it ceases to be the property of the owner of the franchise, and will belong to the first taker {h). A cltase is a franchise granted by the crown to a sub- ject, empowering the latter to keep for his diversion, within a certain precinct so called, the wild animals of chase, wliich in a legal sense are the same with those to which the right of forest extends (?) ; but the franchise does not authorize the estabKshment of forest law within such precinct {k). Aj^ark properly signifies an inclosure, and is popularly applied to any ground which a gentleman chooses to sur- round with a wall or paling, and to stock with a herd of deer ; but in the technical sense in which we now use the term, a park is nearly equivalent to a chase, being in effect no other than a chase inclosed (/). A. free-icarren is a similar franchise {m), granted by the {e) 4 Inst. 318. (/) Manw. 52 ; 2 Bl. Coin. 38. (/) 2 Bl. Com. 38. (;«) See Bro. Ab. tit. Warren ; {g) Sutton r. Moody, Ld. Raym. Dyer, 30 b; Co. Litt. 2 a, 114b; 251 ; 2 Bl. 394, 395, 419. KcUav. 148, n. ; Boulstonr. Hardy, (A) 12 Hen. 8, f. 10, cited 2 Cro.Eliz.548; Wadhurstt'.Damme, Christian's Black. 419, n. ; and see Cro. Jac. 45 ; Case of Leicester Keilw. 30 ; Sutton v. Moody, ubi Forest, ib. 155; 1 Saund. 84, n. (3); sup. Attorney- General v. Parsons, 2 (i) Co. Litt. 233 a. Tyrw. 223 ; Vere v. Lord Cawdor, \k) Manw. 52. See also 2 Bl. II East, 568; Merest r. Har%-ey, 5 Com. 415, where a chase or a park Taunt. 412 ; Lord Dacre v. Tebb, 2 is described as " a smaller forest in Bl. Rep. 1151 ; Patrick v. Green- " the hands of a subject, but not way, 1 Saund. 34G ; Panncll v. Mill, " governed by the forest laws." 3 C. B. 625. vol.. I. XX 674 BK. II. OF KIGHTS OF PROPERTY. — PT. I. THINGS REAL. crown to a subject, for preservation or custody of beasts and fowls of icarrcn ; which, according to Lord Coke, are "hare, coney, roe," "partridge, quail, rail, &c.," " phea- "sant, woodcock, &c.," "mallard, heron, &c." (;/). To this, as well as to chase and park, aj)ply generally the principles which have been before noticed in respect of a forest ; with this exception, however, as to a park, that it is incapable of being claimed in alieuo solo, and can exist only in land belonging to the owner of the franchise him- self (o). A. free fi>iJienj [p), or exclusive right of fishing in a jDublic river, is also a royal franchise {q). In private rivers (viz. in those not navigable), as the bed or soil, so the right of fishing, presumably belongs to the owners of the land on either side, and to them only (r). But in those which are public,^ — that is, navigable, — while the bed (so far at least as the tide flows) appertains to the crown — the right of fishing belongs j^rinid facie to the public at large {f) . But in either public or private rivers, there may (m) Co. Litt. 233 a ; ■where these &c.'s are left ■without explanation. Man^wood, on the other hand, says, " There are only two beasts of " warren, the hare and the coney, " and but two fowls of -warren, the "pheasant and the partridge." — Manw. 95 ; and see Barrington's case, 8 E,ep. 138 b. It has been held that ' ' grouse ' ' are not birds of -warren. (Duke of Devonshire V. Lodge, 7 B. & C. 36.) (o) 2 Bl. Com. 38. Black'stone remarks, ou the other hand (p. 39), that free-warren may bo claimed in a/iciio solo ; and accounts for it by the fact, that anticutly keen sports- men, on selling their lands, often reserved to themselves and their heirs the free -warren that they had in them. [p) As to the law of free fishery, see Hale, de Jure Maris, part i. c. 4 ; Lord Fitz-walter's case, 1 Mod. 105 ; Warren v. Matthews, 1 Salk. 357 ; Smith v. Kemp, 2 Salk. 637 ; Carter v. Mercot, 4 Burr. 2162; Case of River Banne, Davies, 55 ; Mannall v. Fisher, 5 C. B. (N. S.) 856 ; The Free Fishers of Whit- stable V. Gann, 13 ib. 853. [q) Blackstoue adds, (vol. ii. p. 39,) that it "is considered as such ' ' in all counti'ies where the feudal "polity has prevailed," and he cites Seld. Mar. Glaus, i. 24 ; Du- fresne, v. 503 ; Craig, de Jm'e Feed. ir. 8, 15. {)■) Hale, de Jure Maris, part i. 0. 4 ; vide sup. p. 454. (•v) Hale, ubi sup. cc. 1, 2, 4. CHAP. XXIII. — OF INCORl'OKEAL HEREDITAMEXTS. >i'J be a particular title in some individual, by which such presumptive right may be controlled ; and this may take place, in a public river, by force of some royal grant or prescription entitling a private person and his heirs to the exclusive right of fishing therein (t) : a privilege called in the books a " free fishery " (u). Grants of this description can no longer be made by the crown (x) ; being prohibited by King John's great charter (//), and the second and third confirmations of it in the reign of his successor ; but the right of conferring them was considered, (prior to these charters,) as one of the flowers of the preroga- tive (s) ; and it is from this origin that the validity of a free fishery at the present day must in every case be de- rived. Free fishery is a franchise, and is wholly different from the right of common of piscary formerly mentioned, {t) As to public rivers, see Ward V. Cresswell, Willes, 265 ; Mayor, &c. of Orford v. Richardson, 4 T. R. 437 ; 2 H. Bla. 182, S. C. ; Bag-ott V. Orr, 2 Bos. & Pul. 472 ; Blundell V. Catterall, • 5 B. & Aid. 268 ; WiUiams v. Wilcox, 8 Ad. k E. 333. («) 2 Bl. Com. pp. 39, 40. See Pearce v. Scotcher, 9 Q. B. D. 162 ; Neill v. Duke of Devonshire, 8 App. Ca. 135. There are in law, the three different terms of free jiaher]), several fshery, and common of fishery ov piscary (Smith r. Kemp, Salk. 637) ; and it is remarked by Blackstone (ubi sup.) that "they ' ' are very much confounded in our " law books." And a doubt is ex- pressed in Co. Litt. by Harg. 122 a, n. (7), whether Blackstone's own use of the term free fishery is quite correct, and whether it does not apply to all streams, whether pub- lic or private. As to a " several fishery," see Holford v. Bailey, 8 Q. B. 1000 ; Marshall v. TJllcswater X Steam Navigation Company, 3 B. 6 Smith, 732; Carlisle v. Graham, Law Rep., 4 Exch. 361; Bristow V. Cormican, ib. 3 App. Ca. 041. Much infomiation as to the antient law of fisheries will be found in some of the cases arising under the Salmon Fisheries Acts : such, for example, as Rolle v. Wliite, Law Rep., 3 Q. B. 286 ; and Leconfield V. Lonsdale, ib. 5 0. P. 657. {x) Bl. Com. ubi sup. ; see Duke of Somerset v. Fogvvell, 5 B. & Cress. 875. As to the re-grant of a foi-mer franchise of free fisheiy, when forfeited to the crown, see The Mayor of Colchester v. Brooke, 7 Q. B. 385. {y) Cap. 47, edit. Oxon. (;) The right was also exercised by the crown, and granted out to subjects, of making tveirs on our public rivers ; but this also was restrained by Magna Charta and subsequent statutes (sec Williams r. Wilcox, 8 Ad. & E. 314). 676 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. the latter not being a franchise at all, hut a right created by the grant of a subject (a) ; also in a free fishery a man has a qualified property in the fish before they are caught ; in a common of piscary, he has no property till after- wards [h) . VI. Rents are the last species of incorporeal heredita- ments that we propose to notice. The word rent, reditus, signifies a compensation or return yielded periodically, to a certain amount, out of the profits of some cor- poreal hereditament, by the tenant thereof. To obtain a clear idea of the legal incidents of rent, it may be useful to dwell a little upon some of the points of this definition. First, then, it is yielded, that is, paid as a thing due. And therefore it is said, by the antieut lawyers, to lie in render, in contradistinction to those incorporeal hereditaments, (as common or the like,) which the jiarty entitled to is to take for himself, and which are, consequently, said to lie in prendre [c). It must also be of certain amount, or that which may be reduced to certainty, by either party ; for cerium est, quod certum reddi potest {il). It must besides be payable peri- odically ; as yearly, or in every second, third, or fourth year, or the like ie). Again, it is considered as payable out of the profits of the land, and must consequently not be part of the land itself (/) ; wherein it differs from an exception in a grant, which is always part of the thing granted (.r/) . Hence there cannot be reserved, by way of rent, the vesture or herbage of the land demised (A) ; though there is no occasion for rent to be, (as it usually is,) a sum of money ; for sjmrs, capons, horses, corn and other matters maybe rendered byway of reiit(/). Moreover, (a) Vide sup. p. 656. (/) lb. 141 b, 142. \b) 2 Bl. Com. 40 ; F. N. B. 88 ; {g) Plowd. 13 ; 8 Eep. 71 ; Co. Smith V. Kemp, 2 Salk. 637. Litt. 142 a. (c) Burton, Compend. 375. (/() Co. Litt. ubi sup. {d) Co. Litt. 142 a. (i) lb. ; see Doe v. Beuham, 7 \e) lb. 47 a. Q. B. 982. CllAr. XXUl. — OF lACOKl'OKEAL KKHEDiTAMENTS. G77' as the general rule, it must issue out of hereditaments co)-j)oreal. Therefore a rent cannot be reserved out of a common, a franchise, or the like (J). And, lastly, the person from whom it is due must be the tenant of the land. But his tenancy may be either in possession, re- mainder or reversion ; for a rent may be as well reserved upon the grant of a reversion or remainder, as on the conveyance of an estate in possession (/)•). There were known to the common law three manner of rents, viz. rent-service, rent-charge, and rent-seek (/). lieiif- service is where the rent accrues in connection with a tenure, attended (as tenure almost invariably is) by fealty or by fealty and other services [in) ; and this, whether the party to whom the rent is due be entitled to fealty, as having the reversion of the land out of which it issues, or as having the mere seigniory (^;). Thus if A., 'seised in fee, make a gift of land to B. in tail, — or demise to him for life, or years, — reserving a rent ; or if B. be seised in fee of a tenement holden of A. as lord of a certain manor, at a certain antient rent ; such rent is, in either case, rent- service : for it is due as from a tenant owing fealty to his lord (o). To rent of this description, the common law attached as of common right, — and independently of any express provision for that purpose between the parties {}>), [j) Co. Litt.ubi sup. 144 a, 47 a; 496.) Gilb. Rents, 20. The sovereign, (/.) Co. Litt. 47 a, 142 a ; Bac. however, by prerogative, and in Ab. Rent. B. ; vide sup. p. 315. some cases a subject, by statute, [l) Litt. s. 213. may have a rent issuing out of an (;«) lb. ; Co. Litt. 122 a. incorporeal hereditament. (Gilb. («) Vide sup. p. 315. Rents, 22.) And in every case, (o) If a man holds, subject to a the reservation of rent upon an in- rent, as tenant at will, such rent corporeal inheritance will be bind- is not rent-service, for there is no ing on the lessee, as a contract to fealty ; (vide sup. p. 294). The pay so much money. (Cruise, Dig. lessor, however, may nevertheless Rents. And see also Musket v. distrain as of common right. (Co. HiU, 5 Bing. N. C. 694 ; Martyn Litt. 57 b.) V. Williams, 1 H. & N. 817; and {p) Litt. s. 214. Aspden v. Seddon, 1 Excli. Div. 678 BK. 11. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. — the power of distress (q) ; that is, the lord was entitled, in the event of the rent's falling into arrear, to enforce pay- ment without legal process, by entering upon the land, and seizing the goods and chattels found thereon. The other two species of rent differ from rent-service, in having no connection with fealty. But more particularly — a irnf- c/iarge is where the owner of the rent has neither seigniory nor reversion, and can consequently claim no fealty ; yet is entitled to distrain, nevertheless, by force of an express contract ; as where a man by deed conveys to another his whole estate in fee simjile, with a certain rent payable thereout, and adds to the deed a covenant or clause of distress; viz. — that, if the rent be in arrear, it shall be lawful to distrain for the same (r) ; or where a man by deed grants out of the land whereof he is seised, a certain rent payable to another, with a like clause of distress («) . In either of these cases the land is liable to the distress, not of common right, but by virtue of the clause in the deed ; and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it(/). As for a rent-seek {reditus siecus) it is {q) Lord Chief Baron Gilbert See further as to the law of distress, (On Rents, pp. 3, 5) remarks, that post, hk.v. c. i. " antiently the not paying attend- (r) 2 Bl. Com. 42 ; Litt. s. 217. " ance on the lord's courts, or not (*) Litt. s. 218. "doing the feudal service, was [t) lb. s. 217. By 18 & 19 Vict, "punished with the forfeiture of c. 15, ss. 12 — 14, any annuity or " the estate ; but these feudal for- rent-charge granted after the pass- " feitures were afterwards turned iug of that Act (26th April, 1855), " into distresses, according to the otherwise than hij marriage settle- " pignorary method of the civil merit or iciJl, for a life or lives, or ' ' law. ' ' And this, he adds, ' ' may for any estate determinable on a life " ea.sily account why the power of or lives, — shall not affect any lands, "distraining always attended the tenements or hereditaments as to "fealty; because the power of purchasers, mortgagees or creditors, " seizure (for forfeiture) could only imtU a memorandum thereof, such "belong to him in whose homage as the Act describes, shall be re- " the tenant was, and to whom the gistered in the Common Pleas. " lands must return when thefeudal By 22 & 23 Vict. c. 35, s. 10, a " donation tothetenantwasspent." release from a rent-charge of part CHAP, XXin. — OF INCORPOREAL HEREDITAMENTS. 679 where the owner of the rent has neither seigniory nor reversion, nor any such express power of distress as above descrihed. Thus, in either of the cases of rent-charge we have just mentioned, if no cLause of distress were inserted in the deed, the rent would be rent-seek (ii). We must be careful, however, to distinguish here be- tween the two kinds of rent last above described and an a mm if// (which, unless charged upon some real estate) is a yearly sum chargeable only upon the person or upon the personal estate of the grantor (x). Therefore if a man by deed grant to another the sum of 20/. per annum, without expressing out of what lands it shall issue, no land at all shall bo charged with it, but it is a mere personal annuit}^ (y) and does not belong to the class of things real ; though, (by an anomaly which has sometimes led to confusion,) a man may have an estate of inheritance in it ; that is, it may be made descendible to his heirs, while personalty in general can devolve only upon the executors or administrators (s). There are also other species of rents mentioned in the books ; which are, however, when examined, reducible to the three above enumerated. Mciifs of assize are rents at which the freeholders or copyholders of a manor have held under the lord from time immemorial (a) ; [and they cannot be departed from or varied ; those of the free- of the hereditaments charged there- also 4i & 45 Vict. c. 41, s. 44. with, shall not extinguish the whole (y) 2 Bl. Com. 40. As to the rent-charge ; but shall only bar the cases in which a grant of this kind right to recover any part of it shall be construed as a rent-charge, out of the hereditaments released see Co. Litt. 147 a. (Booth V. Smith, 14 Q. B. D. 318). {z) Co. Litt. 2 a. According to Before this Act a rent-charge was Blackstone (vol. ii. p. 40), "a man in effect extinguished by a release "may have a real estate in it." of any part of the hereditaments But it seems clear that this can charged. (See Co. Litt. 147 b.) only be in the sense of an estate of {u) Litt. ss. 217, 218. inheritance, and that an annuity (.i) Co. Litt. 144, 20 a, andn. (4), savours in no other respect of the by Harg. As to the manner of re- realty ; (see Co. Litt. 20 a ; Aubin v. covering the arrears of an annuity Daly, 4 B. & Aid. 59). charged on real estate, see Sollory (a) 2 Inst. 19. v. Leaver, Law Rep., 9 Eq. Ca. 22 ; 680 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. [holders being frequently distinguished as chief rents [reditus cajiitales), and both sorts being indifferently denominated quit rents {quieti reditus), because thereby the tenant was quit and free of all other services. When these payments were received in silver or white money, they were antiently called white rents, reditus albi, in contradistinction to rents reserved in grain or baser money, which were called reditus nif/ri, or black mail (c).] Quit rents, being connected with a tenure by fealty, are consequently rent-service ; from which it follows that the lord is entitled, as of common right, to distrain for them when they fall into arrear ((/). Mack rent is a term expressive only of the proportion a rent bears to the value of the tenement on which it is charged (e) : the rent being so termed when it is of the full value of the tenement or near it. A fee farm rent is where an estate in fee is granted subject to a rent in fee, of at least one-fourth of the value of the lands at the time of its reservation (/) ; and such rent appears to be called fee farm, because a grant of lands reserving so considerable a rent, is indeed only letting lands to farm in fee simple, instead of the usual method for life or years. It results from former explanations, that such a rent, if created by a subject since the statute of Quia eniptores, can never be a rent-service, for no fealty can be due to the grantor {g) ; but it may be either a rent-seek or a rent-charge 'ft). These are the general divisions of rent ; but though their correct apprehension is still of importance, the dif- {(i) 2 Inst. 19. {[/) Vide sup. p. 234. According- {d) 2 Watk. Cop. 191. to Mr. Hargrave, a fee fai-m rent [c) 2 Bl. Com. p. 43. cannot be ci'eated by a subject since (/) Co. Litt. 143 b. Blackstone this statute; it being in his opinion (ubi sup.) defines a fee farm rent essential to the definition of a fee as a rent-charge issuing out of an farm rent, that it should be a rent- estate in fee of at least one-fourth, service. See Co. Litt. by Harg. &c., but apparently by a miscon- 144 a, n. {^). ception of Lord Coke's meaning. {h) Doug. 627, note (1) ; and see See Co. Litt. by Harg. 144 a, Litt. 217. n. (5). CHAP. XXIII. — OF IXCOHl'OREAL HEREDITAMENTS. (381 ference which formerly existed as to the remedies to be pursued in case of their non-payment, is, for practical pm-poses, nearly at an end. For it has been provided by stat. 4 Geo. II. c. 28, s. 5, that any rent-seek, rent of assize, or chief rent, which has been duly answered or paid for a limited period prior to the date of that Act, or which shall at any time thereafter be created, — may be recovered by the remedy of distress in the same manner as if such rent had been reserved upon a lease {i). With respect to the manner of creating rents, the owner of land may either grant thereout a rent, or he may grant the land itself, subject to a rent (A-). Rent-charge or rent- seek may be constituted in either of these ways ; rent- service in the latter only (/). [Rent is due and payable upon the land from which it issues, — that is, if no particular place be mentioned in the reservation (m). But in the case of the sovereign, the payment must be either to the crown officers at the Ex- chequer, or to a receiver in the country {»). And, strictly, rent is demandable and payable before the time of sunset of the day whereon it is reserved (o), though some have said that it is not absolutely due till midnight (p).^ By the common law, if the estate or interest of the person entitled to rent came to an end, in the interval between one of the days of payment and another (as where it determined by death, supposing him to be tenant for life,) the periodical sum then accruing was entirely lost to him and his representatives (q) ; and supposing (i) See llusgrave ;•. Emmerson, («) 4 Rep. 73. 16 L. J. (Q. B.) 174. The Agri- (o) Co. Litt. 202 a ; 1 Anders, cultural Holdings Act, 1883 (46 & 253. See Acocks v. Phillips, 5 H. 47 Vict. c. 61), ss. 44—52, has & N. 114, and Tuttont'. Darke, ib. materially restricted the right of 647. distress. See book v. chap. i. [p) See 1 Saund. 287; Prcc. infra. Chanc. 555 ; Salk. 578 ; Lord Rock- (/r) Anon. v. Cooper, 2 Wils. 375. uigham v. Penrice, 1 P. Wms. 178. (/) See Litt. ss. 217, 218. {q) See Jenner r. Morgan, 1 P. {»/) Co. Litt. 201 b. Wms. 392. 682 BK. II. OF RIGHTS OF PROPERTY, — PT. T. THINGS REAL. the rent itself not to determine, but to continue payable to some person in remainder or reversion, the whole sum accruing in respect of such interval would belong to that person, though the greater portion of such period should have elapsed in the time of his predecessor. But, in extension of some prior enactments, passed to amend the rule of the common law on this head, it has now (as in a previous part of this volume we have already had occasion to mention) been provided by " The Ap- portionment Act, 1870" (33 & 34 Yict. c. 35), that after the passing of that statute, all rents and other periodical payments in the nature of income, (whether re- served or made payable under an instrument in writing or otherwise,) shall be considered as accruing from day to da}'', and shall be appovtlonahJe in respect of time accord- ingly (r). And to what we then said, we may here add, that the apportioned part of the same shall be payable, in the case of a continuing rent, annuity, or other such payment, as soon as the entire portion of which it forms part shall become due, and not before ; and in the case of a rent, annuity, or other such payment, deter- mined by re-entry, death, or otherwise, as soon as the next entire portion would have been payable, and not before (.s) : and that all persons entitled to the same and their respective representatives (and also the rej)resenta- tives and assigns of persons whose interests determine with their own deaths), may recover such apportioned part as they might have done the entire portions, if entitled thereto respectively (/). The x\ct, however, contains a proviso, that the entire or continuing rent, including such apportioned part, shall be recovered by the heir or other (r) See Cattley v. Arnold, 1 J. & Vict. c. 154. As to its constructiou, H. 651 ; 33 & 34 Vict. c. 35, s. 2. .see Whitehead v. "Whitehead, Law This Act refers in its preamble to Rep., 16 Eq. Ca. 528 ; Capron v. the previous enactments on this Capron, ib. 17 Eq. Ca. 288; In re subject contained in 1 1 Geo.2,c. 19; Cline's Estate, ib. 18 Eq. Ca. 213. 4 & 5 Will. 4, c. 22 ; 6 & 7 Will. 4, (.s) Ibid, c. 71 ; 14 & 15 Vict. c. 25; 23 & 24 {t) Sect. 4. CHAP, xxni.~or lycoEroEEAL hereditaments. 683 person who, had the rent not been apportionable, would have been entitled to the entire portion ; and that such apportioned part shall be afterwards recoverable by action from such heir or other person, by the executors or other persons entitled under the Act to claim the same (?/). There is also another hind of apportionment, as where the tenant under a lease has been evicted of part of the land out of which the rent issues, by a person having title paramount to that of the lessor ; or where part of it has been surrendered by the tenant to the lessor ; or where the lessor has aliened the reversion as to part. In all these cases the rent must be apportioned (r) ; and so much of it only shall be payable to the lessor, as corresponds with the value of what is still held by the tenant under him ; though where the tenant has been tortiously expelled by the act of the landlord himself even from a part of the premises only, there shall be no apportionment, but the whole rent will be suspended so long as the expulsion con- tinues (./•). The doctrine of apportionment is not, it may be remarked, confined to rent, but applies to some other kinds of incorporeal hereditaments (//). For if a man, seised of forty acres of land, to which common of pasture is appur- tenant, aliene five acres of it to another, the alienee will be entitled to common pro tanto ; that is, for all his com- monable cattle levant and couchant on the five acres [z). With regard to the remedies for the recovery of rent, including the doctrine of distress — these belong properly to a subsequent part of these Commentaries ; where we {u) 33 & 34 Vict. c. 35, s. 4. The CoUius, 5 Bam. & Aid. 876. Act has no application to annual [x) Gilb. Rents, 178; Neale i\ siuns (sciV. premiums) made paj-aUe Mackenzie, 1 Mce. AW. 747. by any policy of assurance ; nor to (y) As to apjiortionmcnt of rent any case in -whicli an express sti- on lease (or of fine on renewal pulation has been made that no thereof) reserved on hereditaments apportionment shall take place. acquired under the Church Build- (Sects. 6, 7.) ing Acts, see 17 «fe 18 Vict. c. 32. (r) Co. Litt. 148 a; Bliss v. (;) Wy at Wild's case, 8 Rep. 78 b. C84 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. shall treat of civil injuries, and tlie means by wliicli redress for them may be obtained {a) . Having thus taken notice of such particular incorporeal hereditaments as appeared to be fit for the present to en- gage our attention, we shall now advert to some of the principal points of learning relative to this division of things real, considered in a general view ; that is to say, without reference to the individual species of which they are composed. In the first place then we may remark, that many incor- poreal hereditaments are capable either of being annexed as an accessory to some hereditament corporeal or of ex- isting independently, and per se ; being described, in the former case, as appendant or appurte)ta}it, in the latter, as in gross (b). But to be connected as principal and acces- sory, things must be of a nature suitable to that rela- tion, and therefore corporeal hereditaments cannot be appendant or appurtenant to such as are corporeal, nor incorporeal (generally speaking) to incorporeal (c). Where, however, the connection of principal and ac- cessory exists, the effect is that the thing appendant or appurtenant will pass (without any particular mention of it) by any conveyance or alienation of the land to which it is annexed ; and this whether the land be conveyed " with its appurtenances " or not (c/). But if the principal be expressly conveyed without the accessory, or the acces- sory without the principal — as in some instances may be (rt) Vide post, bk. V. c. I. *'tion, but appurtenants may be (b) Co. Litt. 121b, 122a. The "created, in some cases, at this acccssorium of the civil law is that "day." — Co. Litt. 121 b. which answers best to our terms (c) lb. n. (7) ; Potter v. North, 1 of appendant or appurtenant. Co. Vent. 386; Plowd. 85, 108, 170; Litt. by Harg. 121 b, n (6). As Capel v. Buszard, 6 Bing. 161. to the difference between the.se {d) Co. Litt. ubi sup. ; Barlow v. terms, Lord Coke remarks, "that Rhodes, 3 Tyr. 280 ; James f. Plant, " appendants are ever by prescrip- 4 Ad. &E1. 719; et vide sup. p. 487. CHAP. XXIII. — OF IXCORrOKEAL IIEREriTAMEXTS. G85 done — the accessory "becomes tliereafter, in either case, a thing in gross (•) . But uj^on successions since that Act, the rule which has been mentioned as to corporeal, ob- tains also as to incorporeal hereditaments, viz. that descent is in all cases to be traced from the purchaser (/). So here- ditaments of the latter as well as of the former descrip- tion, fall within the doctrine of special occupancy [m). For though it seems that at common law there could be no title by common occupancy to things of which no corporeal or actual seisin could be had, yet the heir might take as special occupant [n) ; and incorporeal hereditaments are now expressly included in all the legislative provisions with respect to estates ^j?^' autre r/f, which we had occasion to notice in a former part of the work (o). But on the other hand, in some important particulars the law of title to incorporeal things, differs from that which applies to things corporeal. For the former cannot in their nature pass hj feoffment, this implying, as we have seen, an actual livery {p). But they have always been capable in every instance of passing by grant (q) ; and {k) Co. Litt. 15 b. It is not, {I) 3 & 4 Will. 4, c. 106, ss. I, 2; however, every incorporeal here- vide sup. p. 391. ditament which will admit of this {m) Vide sup. p. 450. constructive possession. Thus Lord {)/) Bearpark v. Hutchinson, 7 Coke makes an express exception Biug. 186 ; see 2 Bl. Com. 259. of D/(7«i7/c.s in which hesaysaman (->) Bearpark r. Hutchinson, ubi cannot by any act " gain more sup. ; vide sup. pp. 449 et seq. "actual possession (if it may be so {p) Vide sup. p. 505. "termed) than by law descended (y) 2 Sand. Uses, 33, 36, 37, where "to him." (Ratcliffe'scase, 3 Rep. the only exce^jtions mentioned are 42 a.) It is also to be observed with the cases in which the policy of the regard to such incorporeal here- law forbids a/it/ assignment at all, as ditaments as are not in gross, but in the case of an office of trust and appendant or appurtenant (vide sup. confidence ; (see Welcome v. Upton, pp. 653, 654), that they foUow the 6 Mee. & W. 536). Kgrant, itwill descent or conveyance of the land be recollected (vide sup. p. 512), to which they are annexed ; Co. implies a deed, i.e. an instrument Litt. by Harg. 15 b, n. (1) ; Watk. imdtr seal; and without a deed, an Desc. 60, 61. incorporeal hereditament will not CHAP. XXIII. — OF INCOKPOllEAL HEREDITAMEJ^TS. 687 thereforo thoj were said (like remainders and reversions of hereditaments corporeal) to lie in grant, and not in livery (/•), 6r//., either a grant properly so called or a surrender by deed (>s-), or any conveyance operating under the Statute of Uses (J) ; for existing incorporeal hereditaments may be limited by way of use, and will be executed by that statute accordingly {u) ; and it has been provided by the 44 & 45 Vict. c. 41, s. 62, that easements (together with certain other liberties) may even be created dc novo by way of use. Nor is it by grant alone, that title may be made to an in- corporeal hereditament ; for, first, rents may be created by reservofioH in a lease or other convej'ancc, as where a man seised in fee demises land to another for life or years, the latter yielding and paying for the same a certain sum of money (.r). Again, there are certain incorporeal heredita- ments which may be claimed by cuatoni ; as for all the inhabitants of a certain hamlet to have a right of way over a certain field for a particular purpose (//) . This species of title, however, is subject to a very important restriction, viz. that no man can in this way claim a profit a jjrcndj-e in the land of another (z) : and, accordingly a custom for all the inhabitants of a certain hamlet to take from a private close, for the purpose of manure, sand drifted from the sea, was held to be bad in law (a). Besides these titles, there is also the claim by proicriptioii, which applies pass. (See Wood t'. Lcadbitter, 13 Mce. & W. 72. Mee. & W. 838.) [y) Coleridge's Blackstono, vol. ii. (/•) Formerly, on the other hand, p. 36, n. (14). corporeal hereditaments were said (::) Gateward's case, 6 Co. Rep. (c convcrso) to lie in livery and not 596 ; Constable v. Nicholson, 14 in gi-ant. But tliis, as we have C. B., N. S. 239; Austin r. Am - seen, is now altered by a modern hurst, Law Rep., 7 Ch. D. 689; statute; vide sup. p. 513. Chilton v. Corporation of London, (a) See Co. Litt. 338 a. ib., 7 Ch. D. 735 ; Rivers v. Adams, {t) Vide sup. pp. 534 et scq. ib., 3 Ex. D. 361 ; and distinguish (k) 2 Sand. Uses, pp. 33, 49, 59, Goodman r. Mayor of Saltasli, ib.. Ill ; sup. p. 369. 7 App. Ca. 733. (x) Bac. A. Rent, C. ; Litt. s. ('/) Blewitt cTrogouning, 1 liar. 217 ; see Doe v. Lock, 2 Ad. k El. & W. 431. 705, 743 ; Wickham v. Hawker, 7 688 EK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. to almost every kind of hereditament incorporeal (5) ; and as well to those which are appendant or appurtenant, as to those which are in gross (c). And this last species of title involves so many points of nicety, as to demand a more particular explanation than we have bestowed on any of the former. The subject of prescription indeed has been in some measure unavoidably anticipated, in so far at least that it has been stated to be a title by long usage. But we are now to examine its nature more closely, and, as a pre- liminary point, we would remark, that though depending on usage, it is not to be confounded with custom. The distinction between custom — of which we had occasion to inquire at large in a preceding part of these Commen- taries (r/) — and prescription, is this, that custom is properly a local usage, and prescription a personal one, attaching to a man and his ancestors, or those whose estate he has(f'). [As, for example, if there be a usage time out of mind in the parish of Dale, that all the inhabitants of that parish may dance on a certain close at all times for their recrea- tion, — which is held to be a lawful usage — this is strictly a custom, for it is applied to the j^^dcc in general, but not to any particular persons {/) : but if the tenant who is seised of the manor of Dale in fee alleges, that he and all those whose estate he hath in the said manor have used time out of mind to have common of pasture in such a close ; this is properly called a prescription, for this is a usage annexed to the person of the owner of this estate.] [b) "Tresoipdo est titulus ex usu c. 71, to be presently noticed), ap- et tempore, snhstantiam eapiens ah plies to wo oM^r than incorporeiil lie- aiithoritate Icffis.'" — Co. Litt. 113 b. reditaments. (Wilkinson v. Proud, The title of prescription -was well 11 Mee. & W. 35.) known to the Roman law by the {(I) Vide sup. p. 52. name of mucaptio. (Ff. 41, 3, 3.) {e) Co. Litt. 113 b ; Potter v. And see 2 Bl. Com. 264, where the North, 1 Vent. 386 ; 2 Bl. Com subject of prescription is discussed 263; Austinv.Anihiirst,7Ch.D.G89 at large. (/) Abbot v. Weekly, 1 Lev. 176 : (f) The title by prescription, Mounsey v. Ismay, 1 H. & C. 729 ; however (whether at common law Forbes v. Ecclesiastical Commis- or under the stat. 2 & 3 Will. 4, sioncrs, L. R., 15 Eq. 51. (IIAV. XXI 11. — 01' IXCORroilEAL HEREDITAMENTS. 689 The subject of prescription lias been newly regulated by 2 & 3 Will, IV. c. 71 ; but the provisions of this statute are of a natiu-e by no means to supersede the former state of the law in regard to this species of title ; and prescrip- tion will be best understood by contemplating it in two distinct points of view — first, as it exists at common law ; secondly, as it is modified by the above Act. First, with respect to prescrijition at common /an; the following points appear prineipall}' to deserve attention : 1. This title is always founded on the actual usage of enjoj'ing the thing in question ; and without this, a mere claim, however often repeated or long continued, and whether its validity has been questioned or not, will not suffice to establish a prescriptive right (g). 2. The en- joyment on which a prescription is founded, must have been constant and peaceable ; for, as a general rule, when it has been subject to interruption and dispute, no title by prescription arises. Yet where the right is shown to have once attached in consequence of an uniform and tranquil usage for a sufficiently long tract of time, a wrongful interruption of the enjoy- ment dviring a subsequent period of comparatively short duration (as for ten or twenty years) will not destroy the prescription (//) . 3. As to the length of time suffi- cient to establish the right, the rule of the common law is, that there must have been a usage from time im- memorial, or, as it is technically termed, from time whereof the memory of man is not to the contrary ; which period (as before shown in our remarks upon custom) refers to so remote an era as the beginning of the reign of Richard the first (/). And therefore if the usage can be shown to have commenced at any time since that period, {g) But a right more extensive & El. 532. than the actual user may, in some {h) Go. Litfc. ll-i b ; 2 lust. 653 ; cases, be presumed. See Manifold Com. Dig. Prescription, E. ; and V. Pennington, 4 Barn. & Cress. see Brodie v. Mann, 10 App. Ca. 161 ; De Rutzen v. Lloyd, 4 Ad. & 378. El. 456 ; Jones v. Richards, 6 Ad. (i) Co. Lilt. 115 a. VOE. T. Y Y 690 BK. TI. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. the prescription (where it is claimed as at common law) is destroyed (A-). But a commencement shown prior to the reign of Richard the first, would constitute no objection ; for all time prior to that era is considered as out of the time of legal memory (/). Supposing no evidence to be given as to the time at which the usage commenced, but that it appears, either by the testimony of living witnesses, or by any other means of proof (m), that it has had con- tinuance for a period of tu-enf// years or more, this will in general amount, at common law, to a presumption that it is immemorial {n) ; so far, at least, as to sustain the prescrip- tion, supposing no circumstances of a contrary tendency to appear (o) ; and even proof of a shorter continuance than twenty years will have the same effect, if corroborated by other attendant circumstances indicative of the existence of an antient right (;;). But the presumption of imme- morial right, that would otherwise arise from an enjoyment of twenty years, or any other period within legal memory, wdll be defeated by showing that such enjoyment took place by virtue of a grant or licence from the party interested in opposing it, or that it was without his knowledge during the whole time that it was exercised {q). 4. Every prescription must be both certain and reason- able ; therefore a prescription to pay for tithes one penny or thereabouts for every acre of arable land, or to take as much clay as shall he required for making bricks at a certain kiln out of another's field, is bad in law (>•) ; and (A) See Eryant v. Foot, Law Act, vide post, p. G93. Rep., 3 Q. B. 497 ; MiUs v. Col- (o) Rex v. Joliffe, 2 Bam. & Chester, ib., 3 C. P. 575. Cress. 59 ; Hill v. Smith, 10 East, (/) 9 Rep. 27 b ; Com. Dig. Pre- 476 ; Daniel v. North, 1 1 East, scription, Pract. lib. ii. c. 22 ; 372 ; Chad v. Tilsed, 2 Brod. & Stark. Ev. 1205. Bing. 403. (w) Stark. Ev. 1217, 1st edit.; [j)) Stark. E v. 1217, Isted. Co. Litt. 115 a. ('/) See Bright v. Walker, 4 Tyr. (w) This doctrine applies, it will 509. be observed, to a prescription at ('") Com. Dig. Prescription, E. common law only. As to the case 3 ; Clayton v. Corby, 5 Q. B. 415 ; of a claim nnder the Prescription Hilton r. Granville, ib. 701. CIlAr. XXllI. — OF INCORPOREAL HKREDITAMEXTS. 691 thus, too, a suqilice fee claimed on marriage was held imsustainable on the ground that, according to the value of money at the supposed origin of the prescriptive right, it was excessive in amount (s). 5. All prescription at com- mon law must he laid either in a man and t/iose whose estate he hath in certain lands (as in the example above given of a prescriptive common of pasture), which is called prescribing in a que estate (t), or it must be in a man and his ancestors {u). [And here this distinction is to be made — that if a man prescribes in a que estate nothing is claimable by this prescription, but such things as are incident, appendant, or ai^purtenaut to lands ; for it would be absurd to claim anything as the consequence or appendix of an estate, with which the thing claimed has no connection ; but if he prescribes in himself and his an- cestors, he may prescribe for anything whatever that might be the subject of grant (.f). And, formerly, a man might by the common law have prescribed for a right which had been enjoyed by his ancestors at any distance of time, though his or their enjoyment of it had been suspended for an indefinite series of years. But by the Statute of Limi- tations, 32 Hen. YIII. c. 2, it was enacted, that no person should make any prescription by the seisin or possession of his ancestor, unless such seisin or possession had been within threescore years next before such prescrij)tion made. 6. A prescription in a que estate must always be laid in him that is tenant of the fee. A tenant for life, {«) See Bryant v. Foot, Law («) Austin v. Amliurst, 7 Ch. D. E,ep., 3 Q. B. 497 ; and see Mills 689. But a prescription may also V. Colchester (Mayor), 16 W. R. be in a body corporate, and their 987. As to the liability, by prescrip- predecessors. "For as a natm-al tion, of frontagers to repair sea- "body," says Lord Coke, "is said walls, see The Queen v. Commis- " to have ancestors, so a body sioners of Sewers for Essex, 14 Q. " politic or corporate is said to have B. D. 561. "predecessors." And see Mellor (c) See Richards v. Fry, 7 Ad. & v. Spateman, 1 Saund. 342. El. 704 ; Padwick r. Knight, 22 L. (.r) Co. Litt. 121 a. J., Exch. 198. VV2 692 BK. 11. OF RIGHTS OF PROPERTV. — PT. 1. THINGS REAL. [for years, or at will, or a copyliolder, cannot prescribe, by reason of the imbecility of their estates {y). For as pre- scription is usage beyond time of memory, it is absurd that they should pretend to prescribe for anything, whose estates commenced within the remembrance of man ; and therefore the tenant for life, or for other estates short of the fee, must prescribe under cover of the tenant in fee simple. As if tenant for life of a manor would prescribe for a right of common, as appurtenant to the same, he must allege that John Stiles was seised in fee of the manor ; and that he, and all those whose estate he had, had imme- morially used to have this right of common appurtenant to the said manor ; and that John Stiles demised the said manor, with its appurtenances, to him the said tenant for life. 7. A prescription cannot lie for a thing which could not be raised by grant ; for the law allows prescription only to supply the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus the lord of a manor cannot prescribe to raise a tax or toll upon strangers ; for as such claim could never have been good by any grant, it shall not be good by prescription (z). 8. Another rule is, that w^hat is to arise by matter of record, cannot be prescribed for : such as, for instance, the right to for- feitures — being among the franchises to which we before made brief allusion in the course of this chapter {a) : for these forfeitures are found by the inquisition of a jury, and so made a matter of record : to w^hich prescription (which is a mere usage in jxiis, says Lord Coke,) cannot extend (i). But the franchises of treasure trove, waifs, estrays, and the like, may be claimed by prescription ; for they arise from private contingencies, and not from any matter of record (r). 9. Lastly, we may observe that a person having title to (y) 4 Rep. 31, 32. Blackstone, the subject of for- (z) Potter V. North, 1 Vent. 387. feiturea was of much more import- («) Vide sup. p. 665. ance than at the present day ; and (i) 2 Bl. Com. 265 ; Co. Litt. in particular with reference to for- 114 a; Case of Abbot of Strata fcitures for felony and to doodands, Marcella, 9 Rep. 24 a. It will 1)e — both now abolished. recollected tliat in the time of {'■) Co. Litt. 114 b. C HAl', Will. OF INt'OKl'OKKAL IIEUEDITAMENTS. (i'J'-i [anything Ly prescription, is not to he considered as being himself the purchaser, so as to make it descendible to his heirs general, according to the ordinary rule of inherit- ance (d) ; for prescription, inasmuch as it presupposes a grant, is in strictness rather to be considered as an evidence of a former acquisition, than as an acquisition de novo: but the rule on this subject is, that where a man prescribes for anything, (for example, a right of way,) in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes : but if he prescribes for it in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase ; — for every accessory followeth the nature of its principal.] Such being the nature of prescription at common law, we are next to regard it as regulated b>/ statute, viz., by 2 & 3 Will. IV. c. 71 ; a subject which the explanations that have been already given, will enable us more easily to apprehend. This statute is described in its title, as an Act " for shortening the time of prescription in certain " cases," and originated in a reasonable dissatisfaction with the rule, which required an enjoyment from " time im- memorial " (in the legal sense of that term) as the indis- pensable foundation in every case of a prescriptive right. The effect of that rule (we have seen) was, that while, in general, an enjoyment for even ticenty years sufficed to sustain a claim by prescription, because it constituted a presumption of immemorial antiquity, yet — if accident should supply the adverse party with the means of proving that, at any period subsequent to the commencement of the reign of Eichard the first, the alleged right did not in fact exist — the claimant would be defeated, even though he could prove that the usage had lasted for centuries. To obviate the injustice and inconvenience resulting from this doctrine, the Act in question was passed ; and its general plan is to dispense (in all the ordinary cases of prescription) with the necessity of making out an immemorial usage, {(1) Vide sup. p. 391. 69J: BK. II. OF KIGHIS OF PROPERTY. PT. I. THINGS REAL. either by presumption or otherwise ; and to allow an enjoyment for a certain period to constitute a direct and intrinsic right. In pursuance of this view, it provides, with respect to rights of common " and all other profits or benefits to be "taken and enjoyed from or upon any land" — with the exception, however, of tithes, rents and services, which it leaves as at common laAv, — that where there shall have been an enjoyment of them by any person claiming right thereto (^^), without interruption (/), for tJiirfij years (r/) next before the commencement of any action upon the subject (//), the prescriptive claim shall no longer be de- feated (as it would have been before the Act), by showing only that the enjoyment commenced at a period subsequent to the era of legal memory. There is a proviso, how- ever, that it may be defeated in any other way in which it was defeasible before the statute passed (/) . And there- fore a case of thirty years' enjoyment would still be satis- factorily answered, by showing that it was without the knowledge of the adverse party, or that it was by his mere licence or permission ; for either of these circumstances would, before the statute, have rebutted the presumptive right (/.•). It is also provided, tliat the time dui-ing which the adverse party shall have been an infant, idiot, non compos mentis, feme coverte, or tenant for life, or during {() See Tickle v. Brown, 4 Ad. & {g) See Eicliards v. Fry, 7 Ad. El. 369 ; Kinloch v. NeA-ile, 6 Mee. & El. 698 ; Wright v. Williams, & W. 795 ; Magor v. Chadwick, 11 Tyr. & Gr. 375. Ad. & El. 584 ; Earl de la Warr v. {/<) See Bailey r.Appleyard, 8 Ad. Miles, 17 Ch. D. 535. & El. 161, 778 ; Parker r. Mitchell, (/) See Onley v. Gardiner, 1 1 1 Ad. & El. 788 ; Clayton r. Corby, Horn. & Hui-1. 381; Eaton v. 5 Q. B. 415 ; Ward v. Robins, 15 Swansea Waterworks Company, 20 Mee. & W. 237. L. J., Q. B. (N. S.) 482; Catr r. (i) See Mill t;. The Commissioners Foster, 3 Q. B. 581. No act or of the New Forest, 18 C. B. 60; matter is to be deemed an inter- Seddon v. Bank of Bolton, 19 Ch. rujition, unless submitted to and D. 462. acquiesced in for the space of one (k) See Daniel r. North, 1 1 East, year after notice. (2 & 3 Will. 4, 372 ; Bright v. Walker, 4 Tyr. 509 ; c. 71, s. 4.) Kinloch v. Nevilc, 6 Mee. ifc W. 795. CHAP. XXni. — 01' INtOlirOllEAL HEREDITAMENTS. G95 which any action as to the claim shall have been pending and diligently prosecuted, — shall he excluded in the com- putation of this period of thirty years (/). But where there has been an enjoj^ment for as much as si.vtij years, the claim is to he absolute and indefeasible, except only where proof can be brought forward that such enjoyment took place under some consent or agreement in writing, expressly given for the purpose ; while, on the other hand, if the period of enjoyment shall have been less than thirty years, it is to be wholly unavailable, even to raise the slightest presumption of right. In addition to these regulations as to the time for a prescription, there are others as to the manner of making it, and among them the following, — that he who prescribes under this Act shall not be required in any case to claim as in right of the owner of the fee (;^?). In addition to these enactments with regard to pre- scriptive rights of common and the like, the statute of 2 & 3 Will. lY. c. 71, makes similar provisions with respect to another class of incorporeal hereditaments, \nz. as to any " way or other easement (ji), or any watercourse, or the " use of any water, to be enjoyed upon, over, or from " any land or water" (o), " and also as to the access or use " of light to and for any dwelling-house, workshop, or "other building "(;;). But the periods constituting a {I) 2 & 3 Will. 4, c. 71, s. 7. Dalton, Law Rep., 3 Q. B. D. 80; See rye v. Mumford, 11 Q. B. GOG. on app., 4 Q. B. D. 162 ; and in (w) Sect. 5. See Eai-ldelaWuiT H. L., 6 App. Ca. 740; see also t). Miles, 17 Ch. D. 535. Tone v. Preston, 24 Ch. D. 739; («) See Battishill v. Reed, 18 C. and as to the support of se-wers, B. 696 ; and as to ways used only at see 46 & 47 Vict. c. 37. long intervals of time, see Hollins {0) See Beeston v. Weate, 5 Ell. V. Verney, 11 Q. B. D. 715 ; 13 Q. & Bl. 986 ; Murgatroyd v. Robin- B. D. 304. As to the passage of air, son, 7 Ell. & Bl. 391. see Webb v. Bird, 13 C. B. (IST. S.) [p) As to a prescription for light, 841 ; as to use of land for the piu'- under this statute, sec Ilarbidge v. poses of mere pleasure, see Mounsey Warwick, 3Exch. 552; alsoA\Tieel- V. Ismay, 3 H. & C. 486 ; Mayor of don r. Burrows, 12 Ch. Div. 31 ; Saltash v. Goodman, 5 C. P. D. Russell v. Watts, 25 Ch. Div. 559 ; 431 ; 7 App. Gas. 633 ; as to an 10 App. Ca. 590. easement of support, see Angus v. 696 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAh. prescriptive right in the case of ways or other easements, and waters, are ticenfi/ and forty years, in lieu of thirty and sixty respectively ; and an uninterrupted enjoyment of lights for tu-cnf// years, constitutes an absolute and in- defeasible right to them {q), any local usage or custom to the contrary notwithstanding (r). There is moreover a proviso as to ways and watercourses, that when the land or water in respect of which the claim is made has been held for term of life or exceeding three years, such term shall be excluded from the computation of the forty years, in the event of the person who may be entitled in rever- sion resisting the claim within three years after the term determines (.s). Besides those which have been above noticed, there still remains another point of title appropriate to incor- poreal as distinguished from corporeal hereditaments ; viz. that the former are capable of c.cfincfion, in a manner peculiar to themselves. Thus, they may be extinguished by release (t) ; as when a person entitled to common, releases it to the owner of the soil over which it is claimed («/). And after disuse of them for twenty years, a release will in general be presumed (.r). So they may be extinguished by tDiify of seisin ; as where the person entitled to a way or common becomes seised in fee, by purchase or other- {ij) The claim (whether in respect word " reversion" in this section of a way or other easement, or of does not, seinble, inchide a " re- water or light) may, howevei-, as mainder" (see Symons v. Leaker, in the case of a claim of common, 15 Q. B. D. 629). be defeated by showing that the {t) Co. Litt. 270 a, 280 a ; Litt. enjoyment took place under a con- ss. 479, 480 ; see Lovell v. Smith, 3 sent or agreement in writing (2 & 3 C. B. (N. S.) 127. Will. 4, c. 71, s. 5) ; andseo Seddon [u] As to the extinguishment of V. Bank of Bolton, 19 Ch. Div. 462. common by a release of it as to part (>•) See Truscott r. Merchant of the land over which it is claimed, Taylors' Company, 11 Exch. 855. or by pui'chase of part, see Benson As to interruption, within this v. Chester, 8 T. R. 401. section, see Plasterers' Company v. (./•) See Moore v. Rawson, 3 Bam. Parish Clerks' Company, 20 L. J., & Cress. 339 ; Ward t\ Ward, 7 Exch. 362 ; Glover v. Coleman, I<]xch. 838 ; Carr v. Foster, 3 Q. B. Law Rep., 10 C. P. 108. 581 ; Cook v. Bath, Law Rep., 6 («) 2 & 3 Will. 4, c. 71, s. 8. The Eq. Ca. 177. CHAP, XXllI. — OF INCORl'OREAI, HEKKDIT AMEN 1;:. GDT wise, of the land which is subject to the right. For the dominion of the soil itself, and of an incorporeal right relating to the same soil, cannot in general subsist together in the same individual, because as soon as they are com- bined in his person, the latter right, being merely of a par- ticular and subordinate kind, is absorbed and extinguished in the superior title of general ownership (i/). To this, indeed, there is an exception in the case of franchises ; which, as before remarked, are of a nature collateral to the inheritance itself, and are consequently not affected by unity of seisin (s). Even these, however, may be extin- guished by a re-union with the Crown, from which they emanated, or by forfeiture for niisuser, that is, such use of them as is contrary to the express or implied condition on which the royal grant may have proceeded ; or by forfei- tm-e for iioii-ir-sci-, as if a vill was incorporated by the king, before the commencement of the period of legal memory, and that franchise has never been acted upon since (a). Lastly, we may remark as to some particular species of incorporeal hereditaments, viz. lig/its and irafer-courses, that, as they are acquired by mere occupancy, they are in like manner capable of being extinguished after their acquisition, by a simple act of abandonment ; that is, by the mere discontinuance of the enjoyment, though for a period short of twenty years : provided, however, that the abandonment be absolute, — for if it take place under cir- cumstances which imply the intention of future resump- tion within a reasonable time, the right in that case will not be lost (b). {!/) See 4 Eep. 38 a ; Cro. Eiiz. (r) 4 Inst. 318. Vide sup. p. 570; 3 Taunt. 24; Whalley v. 672. Tompson, 1 Bos. & Pul. 371 ; War- {a) 3 Cruise, Big. 302. As to the burton v. Parke, 2 H. & N. C4. As re-grant of a francliisc, see Col- to the extinguishment of a rif//it Chester v. Brooke, 7 Q. B. 385 ; and of uaij by unity of possession, see consider Northumberland (Duke) Winship v. Hudspeth, 10 Exch. 5; v. Houghton, L. E., 5 Exch. 137. Brett V. Clowser, 5 C. P. Div. 376 ; [h) See Liggins v. Inge, 7 Bing. Allen r. Taylor, 10 Ch. Div. 355 ; 692 ; Stokoc r. Singers, 8 Ell. & Bl. Barkshirof. Grubb, 18 Ch.Div.G16. 31. 698 UK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. CHAPTER XXIV. THE CONVEYANCING AND LAND ACTS OF 1881 — 1884. The statutes relating to the practice of conveyancing and to dealings with land generally, which have been passed in the yeai^s 18S1, 1882, and 1881, and principally the Conveyancing Act, 1881, the Conveyancing Act, 1882, and the Settled Land Acts, 1882, 1884, are of an import- ance so general and far-reaching as to demand a more particular treatment than they have received in the earlier portions of this treatise ; and inasmuch as these statutes of themselves now almost form a code of conveyancing and real property law, it has been considered desirable to give them a chapter to themselves, in which their various provisions, and incidentally the provisions of the Vendor and Purchaser Act, 1874, may be collected and expounded; the statement and exposition of the law which have been given in the previous portions of this volume, being now only briefly referred to as serving to explain the provisions of these modern statutes. Firstly. By the Conveyancing Act, 1881 (a), it has been provided as follows : That the word " heirs," or the phrase " heirs of the body," shall no longer be necessary in a deed as the words of limitation respectively for a fee simple, and a fee-tail estate ; but it shall be sufficient in such deed to say that the estate is in fee simple, or in fee tail, as the case may be ; and if in fee tail, that it is in fee-tail male or in fee- tail female, or in fee tail simply if the estate intended to be conferred is in fee-tail general {h). («) 44 & 45 Vict. c. 41. (i) Sect. 51. CH. XXIV. CONVinANClXG AND l.AXl) ACTS OF 1881-4. GOO That freehold land (also choses in action) may be eou- vejed by one [or more] person [or persons] to himself [or themselves] jointly with another person [or other persons], in like manner as it might be conveyed (that is to say, directly and without any grantee to uses) to another per- son ; also, that a husband may in like manner convey direct to his wife, or a wife to her husband, and in either case either alone or jointly with any other person [or persons] (c). That the word " grant " need not be used in any con- veyance (d) ; that in every conveyance the "estate clause" shall be implied, so that it is no longer necessary in any case to specify " all the estate, right, title, interest, claim, and demand " of the conveying party (e) ; also, in every conveyance the " general words " shall be implied, so that the old enumeration of " buildings, erections, hedges, fences, .... fixtiu"es, .... sewers, gutters, drains .... privileges, easements, rights, and advan- tages whatsoever," need no longer be inserted in the con- veyance, but the appropriate general words will in each case be implied, according as it is land simply that is being conveyed, or is land built upon, or is a manor (./'). That as regards the covenants theretofore usually in- serted in purchase and in mortgage deeds of freehold and of leasehold land, these covenants shall be implied, — in each instance the covenants thereto appropriate,— provided that the conveyance expresses to be made by the vendor or mortgagor (as the case may be) in the capacity in which he conveys, that is to say, — If the legal and beneficial owner is the conveying party, then it must be expressed that he conveys as "beneficial owner"; and in that case, if the deed is a purchase-deed of freehold lands, the limited covenants for title are implied; and if the deed is a mortgage deed of freehold lands, the absolute covenants for title are implied, according (c) Sect. 50. (c) Sect. 63. {d) Sect. 49. (/) Sect. 6. Too J5K. II. OF lUGUlS OF rROPEKTV. — PT. 1. THINGS RKAL. to the distinction above explained (//), between the covenants given by a vendor and by a mortgagor respectively. And if the deed is a deed convey- ing leaseholds, then in addition to the covenants for title above referred to, there shall be implied, by force of the words " beneficial ow^ner," the following further covenant and covenants, that is to say, — If the deed is a purchase-deed, the usual limited covenant that the lease is valid, and that all rents, covenants, conditions, and agreements have been duly paid and performed up to the date of the conveyance ; and If the deed is a mortgage deed, the usual abso- lute covenants, firstly, that the lease is valid, and that all rents and covenants, &c. have been duly paid and performed up to the date of the con- veyance; and secondly, that the mortgagor will, during the continuance of the security continue to pay the rents and to observe and perform the covenants, conditions, and agreements reserved by and contained in the lease (/). If the conveying party is not the legal and beneficial owner, but is only a trustee or mortgagee (/.•), then it must be expressed in the conveyance that he conveys as " trustee " or " mortgagee," as the case may be ; and thereupon and by force of such express description of his capacity, the usual covenant is implied that he, the conveying party, has not incumbered ; and If the conveying party, although both legal and bene- ficial owner, is conveying by way of settlement only, and in the conveyance he is expressly described to convey as " settlor," then and by force of such express description of his capacity, the usual covenant is implied that he will make all (if anv) necessary further assurance of the pre- mises (/). (/() Supra, pp. 402, 493. lunatic, or a person appointed by (i) Sect. 7. order of the Court to convey. (Sect. (A) Or a legal personal repre- 7, F.) sentative, or the committee of a (/) Sect. 7, E. CH. XXIV. COXVEYAXCIXO VXD LVXD ACTS OF 1881-4. 701 But it is to be oLserved that the capacity in which the conveying party conveys must be expressed ; for otherwise no covenant will be implied (m). We have already seen that the benefit of all these implied covenants runs with the land {)i). That as regards the covenant for production of deeds and for their safe custody in the meanwhile, which was usually inserted in purcliase-deeds, where the vendor re- tained the deeds or any specified deeds, in lieu of that cove- nant (which used to run to a great although unavoidable length) it shall be sufficient in future to merely insert in the pm^hase-deed, — An acknowledgment of the right of the purchaser to their production ; and An undertaking for their safe custody (o). As regards mortgage deeds, if the deed is expressed to be made by way of statutory mortgage, there shall be implied (;j) — A covenant to repay the principal and interest of the mortgage debt on the day therein specified, and to pay interest half-yearly thereafter upon the principal remaining unpaid ; and The usual proviso for reconveyance on the full dis- charge of the mortgage debt. Also, whether the mortgage deed is expressed or is not expressed to be made by way of statutory mortgage, there shall be implied (q) — A power of sale in the mortgagee ; A power in him to insure ; A power in him to appoint a receiver ; and («j) Sect. 7, sub-s. 4. Also, sects. 58, 59 of the Conveyancing sect. 7 does not include convey- Act, 1881. ances by way of lease. (o) Sect. 9. (ii) Supra, p. 493. See also {p) Sect. 26. (/) Re Bellamy and Metropolitan on a sale, or on a lease, or to a Board of Works, 24 Ch. D. 387 ; building rent, or to any annual Ro Flower and Metropolitan Board sum not being perpetual. of \yorks, 27 Ch. D. 592. (*) Act, 1881, 8. 8. (-) Sect. 70. See In re Hall- (0 Ibid. s. 54. Dare's Contract, 21 Ch. Div. 41, Z /. 9 708 BK. II. OF RIGHTS OF PKOPERTY. — PT. I. THINGS REAL. before as to orders made after tlie commencement of the Act, unless in the case of orders made before the commencement of the Act the same have been either ah^eady set aside or some pro- ceeding is pending for that purpose. And the Conveyancing Act, 1882 {a), in order to further assure the purchaser, once his purchase is com- pleted, provides that if he obtain an official certificate of the result of searches for judgments, deeds, &c., &c., required to be registered or en- rolled, he shall be absolutely protected against everything of that sort not appearing on such certificate, and shall not be affected by notice of anything whatsoever prejudicial to his title, un- less he have actual notice thereof, or such con- structive notice as in the Act expressed. As regards rent- charges created by deed or will, and with a view to shortening the documents creating same, it has been provided (b) that, without any express provision in the deed or will to that effect, the person entitled to the rent-charge (or other annual siuii not being ordinary rent or rent service) issuing out of or charged upon lands or the income thereof, shall have the following remedies for the recovery thereof, that is to say, — If at any time the annual sum or any part thereof is unpaid for twenty-one days next after the time appointed for any payment in respect thereof, the person entitled to receive the annual sum may enter into and distrain on the land charged or any part thereof, and dispose according to law of any distress found, to the intent that thereby or otherwise the annual sum and all arrears thereof, and all costs and expenses occasioned by non-payment thereof, may be fully paid ; and If at any time the annual sum or any part thereof is unpaid for forty days next after the time ap- pointed for any payment in respect thereof, then, although no legal demand has been made for payment thereof, the person entitled to receive the annual sum may enter into possession of and {'i) Soots. 2, ;i. (/;) Act, 1881, H. 44. CH. XXIV.— COXVEYANCIXO AXD LAXD ACTS OF 18' aidre vie, to a defeasible life estate, or j'j?//* autre vie estate, or estate for years determinable on life, to an estate by the curtesy, to an estate tail generally (whether the reversion thereon is in the Crown or not), to an estate tail after possibility of issue extinct ; but the phrase " tenant for life " is not to include a dowress nor a tenant in tail of lauds purchased with moneys provided by par- and the enlargement of long tei-ms & 48 Vict. c. 18), and by sect. 11 of years into fee simple estates of the 48 & 49 Vict. c. 72 (Housing (Conveyancing Act, 1881, s. 65, and of the Working Classes Act, 1885). Conveyancing Act, 1882, s. 11). (r) Sect. 2. (q) 45 & 40 Vict. c. 38, amended (s) Sect. 59. by the Settled Land Act, 1884 (47 {t) Sect. 2, sub-s. 6. CH. XXTV. — CONVEYAISCING AXD LAND ACTS OF 1881-4. 717 liament iu consideration of public services («). An infant entitled in fee-simple or for other the whole estate in the land is a " tenant for life " for the purposes of the Act {x) ; and during his infancy (if a male), or during her infancy and disco verture (if a female), the trustees of the settle- ment (and failing any, the nominees of the court) are to act for him or her {//). A married woman (being or being deemed a tenant for life), as regards her estate not being separate, acts with her husband (~), and as regards her separate estate, acts by herself as a feme sole, and is not (so far as regards any of the purposes of the Act) restrained by even an express restraint on anticipation (a) . A lunatic, so found by inquisition (being or being deemed a tenant for life), acts by his or her committee with the sanction of the Lord Chancellor or Lords Justices sitting in lunacy (b). That the tenant for life (in the extended sense of that word, as above expressed) may exercise the following powers : — (A.) As regards absolute alienations of the settled land: A power to sell the settled land or any part thereof, or any easement in or over the same ; A power to enfranchise ancient freehold lands by selling the seignory thereof, or customary freeholds or copyhold lands, by selling the freehold and inheritance thereof, with or without the mines and minerals ; A power to exchange the settled land or any part thereof; and A power to concur in making partition of the settled land (e). (B.) As regards leases of the settled land : A power to make building (including repairing) leases for ninety-nine years ; {/(] Sect. 58. See In re Morgan, {z) Sect. 59. 24 Ch. Div. 114; In re Jones, 24 {;/) Sect. 60. Ch. Div. 583 ; 26 Ch. Div. 736 ; In {z) Sect. 61. re Clitheroe Estate, 28 Ch. Div. {a) Ibid. 378 ; and distinguish In re Hazle, (l>) Sect. 62. 26 Ch. Div. 428 ; and In re Atkin- (c) Sect. 3 ; and see sect. 19. •son, 30 Ch. Div. GOo. 718 BK. n, OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. A power to make mining leases for sixty years ; and A power to make any other lease for twenty-one years. In any of these three cases, either with or without impeachment of waste ; and either of the settled land or of any part thereof, or of any easement over it (c). A power to accept surrenders of leases, and either in respect of the whole land leased or of any part thereof, or in respect of the mines and minerals only comprised therein {d). A power (when the tenant for life is the lord of a manor) to grant licences to the copyholders to demise their copyhold lands, — the licence being for such periods only as the lease (in the case of freehold lands) might have been made under the Act (e). (0.) As regards improvements of the settled land : A power to apply the capital moneys, arising under the Act in or towards the making and efficient construction of any of the twenty different species of improvements speci- fied in the Act (/), being improvements on or in connexion with or for the benefit of the settled land, and consisting of drainage, sewage, irrigation, embanking, reclamation, in- closing, road-making, clearing, planting, cottages-construc- tion, machines (sawing, &c.), reservoirs, jetties, market- places, streets, and the like, — the improvements specified in the Improvement of Land Act, 1864 (g), being as from the 1st January, 1883, extended so as to include all the twenty classes of improvements specified in the Settled Land Act, 1882 (//). And (D.) As regards absolute alienations, leases, and im- provements generally : A power to enter into any contract or contracts prelimi- nary thereto, and to vary and rescind the same, in all (c) Sect. G. (/) Sect. 25 ; and see sect. 27, (d) Sect. 13. as to concuiring with other persons. (e) Sect. 14. (.'/) 27 & 28 Vict. c. 114, s. 9. (//) Sect. 30. CH. XXIV. — COXVEYANCIXG AXl) LAXD ACTS OF 1881-4. 719 respects as if lie was the absolute fee simple owner, every such contract enuring for the benefit of the settled land (/) . And the Act expressly declares and enacts that the afore- said powers may not be assigned or released by the tenant for life, and that they shall continue exerciseable by him although he should have assigned his estate, and that any contract of his not to exercise them shall be void (./) , with- out prejudice to the rights of any assignee for value of the estate of the tenant for life (/.■). The Act further provides that anything in the settlement excluding, or contriving to exclude, or tending to exclude, the powers given by the Act to the tenant for life, or containing anything designed to induce him to abstain from exercising these powers, shall be void, so much so that an estate limited to him by way of conditional limitation until he does exercise or attempt to exercise the powers of the Act, or any of them, is discharged of the condition altogether, and is to be deemed an estate to continue for the longest possible time for which it would continue if no such condition was annexed thereto (/) ; also, no forfeiture is to result to the tenant for life from the exercise of these powers or any of them (w). The powers conferred by the Act may be exer- cised from time to time, and everything incidental to their full and effective execution may be done, as incidentally comprised in the power (;?). The settlor may by the settle- ment confer larger pov/ers either on the tenant for life or on the trustees ; and if so, then these powers are to be exerciseable as if the Act had conferred such larger powers, with all incidental consequences (o). Lastly, the powers of the Act are not to interfere with other powers, howso- ever given, but are to be cumulative ; but in case of con- flict, the powers of the Act are to prevail {p) ; and in case (i) Sect. 31. («) Sect. 55. 0) Sect. 50. (o) Sect. 57. (/i) Ibid. See In re Paget's {p) Sect. 56. See In re Duke of Settled Estates, 30 Ch. Div. IGl. Newcastle, 24 Ch. T>iv. 129 ; In re (0 Sect. 51. Chaytor, 25 Cli. Div. 651 ; In re (/«) Sect. 52. Clitli'.roe Estate, 28 Ch. Div. 378. 720 BK, II. OF RIGHTS OF PROPERTY. PT. 1. THINGS REAL. of doubt, the court will give its judicial opinion on summons under the Act {q). A tenant for life when intending to make a sale, exchange, partition, or lease, or a mortgage or charge incidental thereto, is to give notice of his intention in that behalf to each of the trustees of the settlement by posting registered letters containing the notice addi-essed to the trustees severally, each at his usual or last-known place of abode in the United Kingdom, and is to give like notice to the solicitor for the trustees, if any such solicitor is known to the tenant for life, by posting a registered letter containing the notice addressed to the solicitor at his place of business in the United Kingdom, every letter being posted not less than one month before the making by the tenant for life of the sale, exchange, partition, or lease, or of the mortgage or charge incidental thereto, or of any contract for the same. And the Act expressly provides that at the date of notice given the number of trustees shall not be less than two, unless a contrary intention is expressed in the settlement ; but that any person dealing in good faith with the tenant for life is not concerned to inquire respecting the giving of any such notice (r). And further, as regards such notices, it has been re- cently provided by the Settled Land Act, 1884 (s), s. 5, to meet the decision to the contrary in liaifs Settled Estates (t), that the notice required by section forty-five of the Act of 1882 of the intention to make a sale, exchange, partition, (q) Sect. 56: also sects. 44 — 46. and (failing any such) the persons The county coui't has jurisdiction who by the settlement are declared "within the limit of 500/. to be the trustees thereof for the {)•) Sect. 45. The tnistees of purposes of the Act; and (failing the settlement are defined as the any such) the persons ■who under trustees with a power of sale (pre- sect. 38 of the Act shall have been sently exerciseable, Wheelwright appointed by the coiu-t (sect. 2, V. Walker, 23 Ch. Div. 752, 761) sub-s. 8). See Orme and Har- over the settled land, or with power greaves' Contract, 25 Ch. Div. 595. of consent to or approval of the (s) 47 & 48 Vict. c. 18. exercise of such a power of sale ; {() 25 Ch. Div. 464. CH. XXIV. — CONVEYANCING AND LAND ACTS OF 1881-4. 721 or lease, may be notice of a general intention in tliat behalf ; nevertheless the tenant for life is, upon request by a trustee of the settlement, to furnish to him such par- ticulars and information as may be reasonably required by him from tune to time with reference to sales, exchanges, partitions, or leases effected, or in progress, or immediately intended ; and further, the amending Act provides that any trustee by wiiting under his hand may waive notice either in any particular case or generally, and may accept less than one month's notice ; and the now-stating section applies to a notice given before, as well as to a notice given after, the 8rd day of July, 1884, being the date of the passing of the amending Act, not being a notice to tho sufficiency of which objection has been taken before the 3rd day of July, 1884. But it is not incumbent on the trustees (after or in con- sequence of receiving such notice) to do anything by way of interfering with or controlling the proposed exercise by the tenant for life of the powers conferred upon him by the Act, or of any of such powers, excepting so far as the Act expressly requires their consent or concurrence ; and the trustees are not to be liable for either giving or re- fusing their consent where such consent is required by tho Act to the tenant for life's exercise of his powers {n). A tenant for life, as regards the powers conferred upon him by the Act, is to be deemed to stand in a fiduciary relation to the persons entitled under the settlement, and he must accordingly have regard to their interests (r) ; nevertheless, on any sale, exchange, partition, lease, mort- gage, or charge, a purchaser, lessee, mortgagee, or other person dealing in good faith with the tenant for life shall, as against all parties entitled under the settlement, be con- clusively taken to have given the best price, consideration, or rent (as the case may require) that could reasonably be obtained by the tenant for life, and to have complied with («) Sect. 42. (0 Sect. 53. vol,. I. 3 A , 722 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. all the requisitions of the Act (cc) ; and in particular a statement contained in a lease or in an indorsement thereon signed by the tenant for life, respecting any matter of fact or of calculation under the Act in relation to the lease, shall, in favour of the lessee and of those claiming under him, be sufficient evidence of the matter therein stated {//) . The remedy (if any) will, therefore, in all cases, be a personal one against the tenant for life himself (s). Having stated the provisions of the Act which are of general application, we may now proceed to state the pro- visions of the Act which relate specially to the exercise of the specific powers conferred by the Act. And firstly, as regards sales. Every sale is to be made for the best price that can reasonably be obtained {a). The sale may be in one lot or in several lots, and either by public auction or by private contract (6), and with or without a reserve price or power to buy in (c), and subject or not subject to any stij^ulations regarding title, evidence of title, or otherwise ((/) ; and the sale may be made, subject to any restriction regarding the subsequent user of the land, or regarding building thereon, and subject to any reservation of mines and minerals or mining rights {e). When the sale is of land subject to any incumbrance, the tenant for life may (with the consent of the incumbrancer) charge the incumbrance on the other part of the settled land in exoneration of that sold (/). The sale may extend even to the principal mansion-house and to the demesnes thereof, but in that case either the trustees of the settle- ment must consent to the sale, or an order of the court must be obtained to sanction it {g). Also, on or in con- (x) Sect. 54. {(l) Ibid, sub-s. 5. (y) Sect. 7, sub-s. 5. (c) Ibid, sub-s. G ; and see sect. {z) See, e.ff., sect. 28, sub-s. 5. 17. (a) Sect. 4, sub-s. 1. (/) Sect. 5. (i) Ibid, sub-s. 3, {(/) Sect. 15. See In re Browu's {(:) Ibid, sub-s. 4, Will, 27 Ch. Div. 179. I CH. XXIV. — CONVEYANCING ANJ) LAND ACTS OF 1881-4. 723 nection with a sale (if the same is for building purposes), the tenant for life may, for the benefit of the residents on the settled land or on any part thereof, make the following provisions {/i), that is to say: (1) may cause or require any parts of the settled land to be appropriated and laid out for streets, roads, paths, squares, gardens, or other open spaces, for the use, gratuitously, or on payment, of the public or of individuals, with sewers, di'ains, watercourses, fences, paving, or other works necessary or proper in con- nection therewith ; and (2) may provide that the parts so appropriated shall be conveyed to or vested in the trustees of the settlement, or other trustees, or any company or public body, on trusts or subject to provisions for securing the continued appropriation thereof to the purposes afore- said, and the continued repair or maintenance of streets and other places and works aforesaid, with or without pro- vision for appointment of new trustees when required ; and (3) may execute any general or other deed necessary or proper for giving effect to the foregoing provisions (which deed may be enrolled in the Central Office of the Supreme Court of Judicature), and thereby declare the mode, terms, and conditions of the appropriation, and the manner in which, and the persons by whom, the benefit thereof is to be enjoyed, and the nature and extent of the privileges and conveniences granted. Also, upon any sale and in completion thereof, the tenant for life may, as regards the land sold (including copyhold or customary or leasehold land vested in trustees), or as regards easements and the like, convey or create the same by deed for the estate or interest the subject of the settlement, or for any less estate or interest, to the uses and in the manner necessary for giving effect to the sale (?) ; and the deed shall accordingly operate to pass the land conveyed, or the easements, rights, or privileges created, discharged from all the limitations, powers, and provisions (/() Sect. IG. (0 Sect. 20, sub-s. 1. aA 2 724 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. of the settlement, and from all estates, interests, and cliarges subsisting or to arise thereunder, subject of course to all estates which have priority to the settlement, and to all estates made under powers in the settlement for securing moneys actually raised at the date of the deed, and to all leases or other alienations already made for value and binding the settlement (f/) ; and if the deed comprises copy- hold or customary land, the same is to be entered on the com*t rolls, and the purchaser admitted thereupon without any surrender or other act, so nevertheless that the lord's fines and the steward's fees be not thereby prejudiced {c). Secondly, as regards exchanges and partitions. Every exchange and every partition is to be made for the best consideration in land, or in land and money, that can reasonably be obtained (/'), or in consideration of or sub- ject to the reservation of an undivided share in mines or minerals (g), and may be made subject or not subject to any stipulation regarding title, evidence of title, or other- wise (A), and subject to any restriction regarding the sub- sequent user of the land, or regarding building thereon, and subject to any reservation of mines and minerals or mining rights (/) ; and when the exchange or the partition is of land, or the exchange is for land subject to any incum- brance, the tenant for life may (with the consent of the incumbrancer) charge the incumbrance on other part of the settled land in exoneration of that given in exchange or partition or received in exchange (/.•) . Also, where money is required for equality of exchange or of par- tition, the tenant for life may raise the same on mort- gage of the settled land or of any part thereof, by a mortgage thereof, either in fee simple or for a term of years (/). And upon any exchange or partition, and in {d) Sect. 20, fcub-a. 2. (//) Sect. 4, sub-s. 5. ((■) Ibid, sub-s. 3. (/) Ibid, sub-s. 6; and see sect. 17. (/) Sect. 4, sub-s. 2. (/.) Sect. 5. {ff) Sect. 17, sub-s. 2. {I) Sect. 18. CH. XXIV. — CONVEYAXCING AND LA>iD ACTS OF 1881-4, 725 completion thereof, the tenant for life may, as regards the land given in exchange or on partition (including copyhold or customary or leasehold land vested in trustees), or as regards easements and the like, convey or create the same by deed for the estate or interest the subject of the settle- ment, or for any less estate or interest, to the uses and in the manner necessary for giving effect to the exchange or the partition {m) ; that is to say, the deed will operate to pass the land conveyed, or the easements, rights, or privi- leges created, discharged from all the limitations, powers, and provisions of the settlement, and from all estates, interests, and charges subsisting or to arise thereunder, subject of course to all estates which have priority to the settlement, and to all estates made under powers in the settlement for securing moneys actually raised at the date of the deed, and to all leases or other alienations already made for value and binding the settlement {nj ; and if the deed comprises copyhold or customary land, the same is to be entered on the coui-t rolls and the party admitted thereupon without any surrender or other act, so neverthe- less that the lord's fines and the steward's fees be not thereby prejudiced (o). Thirdly, as regards enfranchisements. Every enfran- chisement may be made either with or without a re-grant of any right of common or other right, easement, or pri- vilege theretofore appendant or appurtenant to, or held or enjoyed with the land enfranchised, or reputed so to be (j)). And, when money is required for enfranchise- ment, the tenant for life may raise the same on mortgage of the settled land, or of any part thereof, by a mortgage thereof either in fee simple or for a term of years (q) . Fourthly, as regards leases. Every lease is to be by (m) Sect. 20, sub-s. 1. {p) Sect. 4, sub-s. 7. (w) Ibid, sub-s. 2. (?) Sect. 18. (rt) Ibid, sub-s. 3. 726 BK. II. OF RIGHTS OF PROPERTY. — PT. I. THINGS REAL. deed, and to take effect in possession not later than twelve months after its date (r), and it is to reserve the best rent that can reasonably be obtained, regard being had to any- fine taken (s), and to any money laid out, or to be laid ont, for the benefit of the settled land, and generally to the circumstances of the case {f), and it is to contain a covenant by the lessee for payment of the rent, and a condition of re-entry on the rent not being paid within a time therein specified, not exceeding thirty days (u) ; also, a counterpart of every lease is to be executed by the lessee and delivered to the tenant for life, of which execution and delivery the execution of the lease by the tenant for life is sufiicient evidence (.r). As regards building leases (y) : Every building lease is to be made partly in consideration of the lessee, or some per- son by whose direction the lease is granted, or some other person, having erected, or agreeing to erect, buildings, new or additional, or having improved or repaired, or agreeing to improve or repair, buildings, or having executed, or agreeing to execute, on the land leased, an imjirovement for or in connection with building pm-poses. A peppercorn rent, or a nominal or other rent less than the rent ulti- mately payable, may be made payable for the first five years, or any less part of the term. Also, where the land is contracted to be leased in lots, the entire amount of rent to be ultimately payable may be apportioned among the lots in any manner ; save that — (1) The annual rent re- served by any lease is not to be less tlian ten shillings ; and (2) The total amount of the rents reserved on all leases for the time being granted is not to be less than the total amount of the rent which, in order that the leases may be in conformity with the Act, ought to be reserved in respect of the whole land for the time being leased ; (?•) Sect. 7, sub-s. 1. {t) Sect. 7, sub-s. 2. (a) This fine is capital, not in- («) Ibid, sub-s. 3. come. See Settled Land Act, 1884, (x) Ibid, sub-s. 4. 8. 4. (y) Sect. 8, I CH. XXIV. — CONVEYANCING AND LAND ACTS OF 1881-4. 727 and (3) The rent reserved by any lease is not to exceed one fifth part of the full annual value of the land com- prised in that lease, with the buildings thereon, when completed. As regards mining leases (z) : (1) The rent may be made to be ascertainable by, or to vary according to, the acreage worked, or by or according to tlie cpiantities of any mineral or substance gotten, made merchantable, con- verted, carried away, or disposed of, in or from the settled land, or any other land, or by or according to any facilities given in that behalf ; and (2) A fixed or minimum rent may be made payable, with or without power for the lessee, in case the rent according to acreage or quantity in any specified period does not produce an amount equal to the fixed or minimum rent, to make up the deficiency in any subsequent specified period, free of rent, other than the fixed or minimum rent. Also, the lease may be made partly in consideration of the lessee having executed, or his agreeing to execute, on the land leased an improve- ment of the kind authorized by the Act for or in connec- tion mth mining piu-poses. And generally, as regards both building and mining leases, where it is shown to the court with respect to the district in which any settled land is situate, either — (1) That it is the custom for land therein to be leased or granted for building or mining purposes for a longer term or on other conditions than the term or conditions specified in that behalf in the Act, or in perpetuity ; or (2) That it is difiicult to make leases or grants for building or mining purposes of land therein, except for a longer term, or on other conditions than the term and conditions specified in that behalf in the Act, or except in perpetuity ; the court may (a), if it thinks fit, authorize generally the tenant for life to make from time to time leases or grants of or affecting the settled land in that district, or parts thereof, for any term or in perpe- {z) Sect. 9. («) Sect. 10. 728 BK. II. OF RIGHTS OF PKOPERTY. — VT. I. THI^T^S REAL. tuity, at fee-farm or otlier rents secured by condition of re-entry, or otherwise, as in the order of the court ex- pressed, or may, if it thinks fit, authorize the tenant for life to make any such lease or grant in any particular case. Thereupon the tenant for life, and, subject to any direc- tion in the order of the court to the contrary, each of his successors in title, being a tenant for life within the mean- ing of the Act, may make in any case, or in the particular case, a lease or grant of or affecting the settled land, or part thereof, in conformity with the order. Also, on or in connection with any building lease, the tenant for life {b), for the general benefit of the residents on the settled land, or on any part thereof — (i) May cause or require any parts of the settled land to be appropriated and laid out for streets, roads, paths, squares, gardens, or other open spaces, for the use, gratuitously or on payment, of the public or of individuals, with sewers, drains, water- courses, fencing, paving, or other works necessary or proper in connection theremth; and (ii) May provide that the parts so appropriated shall be conveyed to or vested in the trustees of the settlement, or other trustees, or any com- pany or public body, on trusts, or subject to provisions for securing the continued aj^propriation thereof to the pur- poses aforesaid, and the continued repair or maintenance of streets and other places and works aforesaid, with or without provision for appointment of new trustees when required; and (iii) May execute any general or other deed necessary or proper for giving effect to the fore- going provisions (which deed may be enrolled in the Central Office of the Supreme Court of Judicature), and thereby declare the mode, terms, and conditions of the appropriation, and the manner in which, and the persons by whom, the benefit thereof is to be enjoyed, and the nature and extent of the privileges and conveniences granted. Also, a mining lease may be made with or without an («) Sect. 16. CH. XXIV. — COXVEYA^'CIXG AND LAND ACTS OF 1881-4. 720 exception or reservation of other mines or minerals, and with or without a lease of the settled land or any part thereof, and with or without a grant or reservation of powers of working, and of wayleaves or rights of way, rights of water and drainage, and other powers, ease- ments, rights, and privileges for or incident to or con- nected with mining purposes, in relation to the settled land or any part thereof, or any other land (e). But no lease, either of the principal mansion-house and of the demesne lands occupied therewith, for building or other pm-j)oses, or of the mines and minerals thereunder, or under any part thereof, may be made by the tenant for life under tbe leasing powers of the Act, unless he first obtain either the consent thereto of the trustees of the settlement, or else an order of the court authorizing the same (d). And upon any lease, and in completion thereof, the tenant for life may, as regards the land leased (including copyhold or customary or leasehold land), and as regards easements or other rights or privileges leased, convey the lands, or create the easements by deed for the term of the lease (not exceeding the estate or interest the subject of the settlement) , to the extent of giving full effect to the lease; and for this purpose may discharge all the limi- tations, powers, and provisions of the settlement, and all estates subsisting or to arise thereunder, not being estates, interests, and charges having priority to the settle- ment, and not being estates, interests, and charges already conveyed or created under powers in the settlement for seeming money actually raised at the date of the lease, and not being other leases abeady made thereunder, or under the powers conferred by the Act (e) . And as regards the leasing powers generally of a tenant for life, these extend (/) to the making of (i) a lease for (c) Sect. 17. {<■) Sect. 20. {d) Sect. 15. See In re Brown's (/) Sect. 12. Will, 27 Ch. Div. 179. 730 BK. II. OF RIGHTS OF PROPERTY, — PT. I. THINGS REAL. giving effect to a contract entered into by any of his pre- decessors in title for making a lease which, if made by the predecessor, would have been binding on the successors in title ; and (ii) a lease for giving effect to a covenant of renewal, performance whereof could be enforced against the owner for the time being of the settled land ; and (iii) a lease for confirming, as far as may be, a previous lease, being void or voidable ; but so that every lease, as and when confirmed, shall be such a lease as might at the date of the original lease have been lawfully granted, under the Act, or otherwise, as the case may require. Also, the tenant for life may {g) accept, with or without consideration, a surrender of any lease of settled land, whether made under the Act or not, in respect of the whole land leased or any part thereof, with or without an excep- tion of all or any of the mines and minerals therein, or in respect of mines or minerals or any of them ; and on a surrender of a lease in respect of part only of the land or mines and minerals leased, the rent may be apportioned. Also, on a surrender the tenant for life may make of the land or mines and minerals surrendered, or of any part thereof, a new or other lease, or new or other leases in lots ; and the new or other lease may comprise additional land or mines and minerals, and may reserve any apportioned or other rent. Also, on a surrender and the making of a new or other lease, whether for the same or for any ex- tended or other term, and whether or not subject to the same or to any other covenants, provisions, or conditions, the value of the lessee's interest in the lease surrendered may be taken into account in the determination of the amoimt of the rent to be reserved, and of any fine to be taken, and of the nature of the covenants, provisions, and conditions to be inserted in the new or other lease. And, by way of concluding this exposition of the tenant for life's power of leasing, it should be mentioned that, in (/) Sect. 10. (A) Sched. 8. CHAP. XXV, — OF IIKGISTKATION OF TITLE TO LAND. 749 complied with, shall make a declaration that the petitioner has such title to the lands in question, as he sought to establish by his petition, or such title subject to any quali- fications which, it may deem necessary or proper to intro- duce (c). A declaration of title to the land being thus obtained, in pursuance of the proprietor's petition, the effect of it is stated as follows : — " that such declaration of ' title, as soon as it shall have become final for the purpose ' of this Act, shall in favour of any person thereafter ' deriving title as a purchaser, for valuable consideration, ' of the land therein referred to, or of any part thereof, or ' of any estate, right or interest tlierein, from or under ' the person whose title has been so declared, be deemed ' and taken to have correctly declared the same : but, ' save as aforesaid, such declaration shall have no force ' or effect whatever as to the title of the land comprised ' therein "(r/). The whole law relative to the rights of property in things real, (exclusively of what relates to their viola- tion, and to the remedies in such case provided,) has now come in due order under discussion ; and the second part of the present Book of these Commentaries — that whicb relates to Things Personal — will be entered upon in the next volume. The subject which has thus employed our attention is of very extensive use and importance, but it must be con- (c) Sect. 15. rights of way, -watercom'ses, rig-hts {d) 25 & 26 Vict. c. 67, s. 24. By of water and other easements or sect. 29 the declaration of title shall servitudes, manorial rights and not affect land tax, succession duty, franchises, leases or agreements tithe rent charge, rights of com- for leases for any term not ex- raon, rents payable to the crown, ceeding twenty-one years, Avhere public rights of way, liability to re- there is occupation under the same, pair highways by reason of tenure. 750 BK. Tl. OF RIGHTS OF PllOPERTY. — PT. I. THINGS REAL. fessed, not very attractive at the first aspect. [To say the truth, the vast alterations which the doctrine of real pro- perty has undergone from the Conquest to the present time ; the infinite determinations upon points that con- tinually arise, and which have been heaped one upon another for so many centuries without much order or method ; and the multiplicity of acts of parliament, which have amended or sometimes only declared, the common law, — these causes have made the study of this branch of our national jurisprudence at once laborious and intricate. It has been our endeavour principally to select such parts of it as were of the most general use, where the principles were the most simple, the reasons of them the most ob- vious, and the practice the least embarrassed. Yet it is not to be presumed that we have always been thoroughly intelligible to such readers as were before strangers even to the very terms of art of which we have been obliged to make use, though whenever those have first occurred, we have generally attempted a short explication of their mean- ing. These are indeed the more numerous on account of the different languages which our law has, at different periods, been taught to speak : the difficulty arising from which will insensibly diminish by use and familiar ac-. quaintance. And therefore we shall close this branch of our inquiries with the words of Sir Edward Coke, — " albeit the student shall not, at any one day, do what he " can, reach to the full meaning of all that we have laid " down, yet let him no way discourage himself, but " proceed ; for on some other day, in some other place," (or perhaps upon a second perusal of the same,) " his " doubts will be probably removed " ((?).] ((■) Proeme to 1 Inst. END OF THE FIRST VOLUME. INDEX TO THE FIRST VOLUME. Abeyance, 23G, 237, 32", u. Abjuration, 141. Abolition, of fines and recoveries, 579. of colonial slavery, 109. of military teniu'es, 205. Abridgments (or dig-csts), 57, 58. Abstract of title, 486, n., 702, 703. Accumulation of income^ 559. Acknowledgment, by mortgagee of mortgagor, 304. of married women, 477, 587. of vassalage, 177. of right to production, 701. Actions, •real, 313, n. Active trusts, 371. Act of Parliament, liow cited, G8, n. local and personal, 69. l^ublic and private, G8. Admeasurement, of dower, 272, n. Admiralty, jiu'isdiction of, 50, IIG, n. Admittance, to copyhold, G36. Ad ostium ecclosite, 270, 277. Ad quod dauuium, wi'it of, 459. Adultery, effect of, on dower, 274. Advowsons, G51, G52, n. Africa, Acts relating to, 105, n. After possibility of issue extinct, tail estate, 262, 587. Aggregate, corporation, 358. Agnati, 414. Agnation, 424, n. Agreement — see Contract ; Lease. Agricultural Holdings Act (1875), 290, n., 517. Agricidture— see Peopeety. Aids, in knight service, 195. in socage, 208. parliamentary, 165. Air, right to, 160, 695, n. Alderman, 126. Alderney, 101. Alfred, his laws, 46, 123, n. Alienation, in general, 203, 209, 4G8. in mortmain, 455. by corporations, 474. to corporations, 455. by infants, 476. by married Avomcn, 477. by particular tenants, 464. in case of copyholds, 222, G35. fines on, 177, 199, 209, 222. forfeitui-e by, 280, 316, 465. licence for, 203. of settled estates, 252, 266, 279. 480, 717. restraint upon, 469, 470. 752 INDEX. Aliens, can hold real property, 478. can take by descent, 441. naturalization of, 442. tracing descent through, il. Allodial property, 173, 185, 232. Allodium — see Allodial Property. Allotments, under Inclosure Acts, 6o8. Alluvion, 453. Alteration, in deeds, 498. in wills, 605. Ambigtdty, in a deed, 501. in a will, 606. latent and patent, 501. Ambulatory, character of will, 592. American colonies. Acts relating to, 105, n. revolt of, 104. Ancestors, 233, 389, 689. Ancient monuments, 462. Anglo-Saxon Laws, 46. Animals ferae naturae, 160, 669. Annuities, 079. Antient demesne, 223 — 225. Antigua, Act relating to, 106, n. Apparent heir, 389. Appeal, to House of Lords, 6. Appellate Jurisdiction Act (1876), 6, 88, 98. Appendant — see Common. Appointment — see Power. Apportionment Act (1870), 261, 082. Apprenticii ad legem, 16. Appropriation, of tithes, 119. Approving common, 657, 658. Appurtenances, 487. Appurtenant — see Com.mon. Arbitrary tithes, 118. Archbishop's province, 116. Archdeaconry, ih. Aristocracy, government by, 31. Arms, right to carry, 150. training to the use of, ib. Articles of union, with Ireland, 98. with Scotland, 88. Ascending line, formerly excluded from inheriting, 409. may now inherit, 411. Assensu patris, 270. Assent, 70. Assets, in equity, 432, 634. Assignment, of contingent interests, 473. of dower, 271. of lease, 300, 530. of right of entry, 473. of satisfied terms, 380. conveyance by, 529. Assisa vitrum, 227, n. Assize of arms, 197. Assize, rents of, 679. Assurances, common, 481. Atholl, Duke of, rights of, in Isle of Man, 100. Attainder, nature and effect of, in general, 141, 447, 474. effect of, on dower, 269. of trustee, 447. Attendant term, 380. Attestation, of a deed, 497. of a will, 601, 603. Attornment, 469, 471, 513. Augmentation, of poor livings, 461, 462. Aula regis, 15, 16. Australasia, federation of. Act for, 108, n. Australian colonies. Acts relating to, 105, n. INDEX. 753 Autre di'oit, land held in, 317. Autre vie, tenant pur, 254, 259. Averiiun, G33. Avoidance, of a deed, 498. B. Bacon, references to, 58. Bail, excessive, 145. Bailiffs, of hundreds, 125. Banishment, 148. Bankrupt trustee, 377, n. Bankruptcy, of tenant in tail, 250. Bar, of dower, 272. of estate tan, 248, 250, 571. Bar students, 18—20. Barbuda, Act relating to, 105, n. Bare possibility, 229. Bargain and sale, 361, 537, 540. Baronies, 214. Barristers, 16 — 20. Base fee, 239, 244, 583. Bastard, cannot be heir, 439. eigne may be heir, ih. Battery, 140, 144. Beasts of forest, &c., 669. Bed of river, 674. Bedfordshire, 699, n. Benchers, 19. Benefice, 173. Beneficial owner, 699. Benevolences, 166. Bequests — see Devises. Berwick-upon-Tweed, 91, 91, n. vol.. T. Bishoprics, English, 116. colonial, 102, n. Indian, 112. Bissextile year, 283. Black Mail, 680. Blanch holding, ih. Blood, of the piirchaser, 895. whole and half, 417. inheritable, 437. coiTuption of, 443. Board of Control, 111, 113. Bodily rights, how protected, 140. Body corporate, 362. Bombay, bishop of, 112. Bombay Civil Fund, 115, n. Borough, definition of, 125. municipal, 125, n. parliamentary, ib. Borough Electors Act (1868), 125, n. Borough English, tenure by, 211—213. Borough rate, 129, n. Borsholder, 124. Botes, by tenant for life, 256. by tenant for years, 288. Boundaries, of parishes, 123, u. Bracton, references to, 15, 57. Breach of covenant, 492, 517. Break in descent, 430. Brehon law, 91. Brevia testata, 493. Bridgman, references to, 331. British Columbia, Acts relating to, 105, n. British constitution, 32. British Honduras, Acts relating to, 105, n, 107, u. ac 754 INDEX. British Islands, 98. British Kaffraria, Acts relating to, 105, n. British possessions, 101. British subjects, 13-1. Britons, laws of antient, 45, Brooke's Abridgment, 58. Brothers, descent between, 418, 442. Building leases, 726, 728. Burgage, tenure in, 211. 0. Caicos Islands, Act annexing, 106, n. Calcutta, Bishop of, 112, Calendar month, 283. Call to the bar, 19. Canada, Acts relating to, 105, n. Cancelling, deed, 498. wUl, GOO, 601. Canon law, origin and growth of, 42, io. sources of, 42, 44. obligation of, 44, 51, 52. Canons of 1603.. 44. Canons of Convocation, ib. Canons of descent, prior to 1st January, 1834.. 391, n. since 1st January, 1834 . . 391-425. Capacity, to purchase or convey — see Alienation ; Conveyances. Cape of Good Hope, Acts relating to, 105, n. Capita, succession per, 407. Capital moneys, 732, 734. Capital punishment, 143. Capita, tenants in, 185, 196, 209, 235, n., 469. Cart-bote, 256. CataUa, 280. Cayman Islands, Acts relating to, 106, n. Centenarius, 126, n. Central Criminal Court, 128, n. Certain services, 187- Certificate of acknowledgment, 588. searches, 708. redemption, 706. Cessio in jui-e, 579, n. Cession, colonies gained by, 102. Cestui que trust, 371. use, 360. vie, 259. Chancery, inns of, 18. Channel Islands, 101. Charge in equity, 377, 634. Charging real estate, with debts, 434, n. Charitable uses, 250, n., 460, 598. Charta de Foresta, 671. Charta, Magna, 67, 271. Charter or deed, 482. Chase, 674. Chattels, personal, 281. real, 280, 281. Chattels real, distinguished from freeholds, 281, 282. varieties of, 282—295. estate for years, 282—289. from year to year, 289, —291. at wiU, 292, 293. at sufferance, 294, 295. by elegit, &c., 310,311. Chester, coimty palatine of, 129. Chief rents, 680, 700—7. INDEX. 755 Child in womb, 139. China, Acts relating to, 105, n., 115, n. Chirograph, 484. Chivalry, tenure by, 188. abolition of, 205. Churches, parish, 118, Circuits, 128. City, definition of, 125. Civil death, 141, 25G. Civil government, origin of, 28. varieties of, 29—32. in England, 32, 33. sovereign power in, 34. Ci^tI injur}-, distinguished from crime, 138. Civil law, origin and growth of, 40, 41. sources of, 41, 42. obligation of, 51, 52. Clementine constitutions, 42. Clergy, 11. Clerks, 10. Close rolls, 623. Close writ — see Weit. Code, of Justinian, 40. of Theodosius, 41. Codicil, 593. Cognati, 414. Cognizance, fine sur, &c., 566. Cognizee, of a fine, 565. Cognizor, of a fine, ib. Coke, 56, 58. Coke upon Littleton, 58. Collateral inheritance, 417. Collateral waiTanty, 485. College leases, 69, 475. Colonies, Acts relating to the, 105, n., 108, n, bishops in, 102, n. church in, ib. governors of, ib. legislators of, 103, 103, n. slavery in, 108. making of, 157. Comes, 126. Comites, 173. Commissioners, copyhold, 646. ecclesiastical. 111. inclosure, 646, n., 659. tithe, 646, n. land, ib., 731. Common, appendant, 654. appurtenant, 655. because of vicinage, 655. in gross, 656. approvement of, 659. inclosiu-e of, 658 — 662. of estovers, 658. of pasture, 653. of piscary, 656. of shack, 655. of turbary, 656. sans nonibre, ib. without stint, ib. in the soil, 657. Common assurances, 481. Common law, 9, 45, 80. Common Pleas, fixed at Westminster, 15. Common possibility, 327. Common recovery, 248, 458, 571. Common, tenancy in, 352. Common vouchee, 458. Commonable beasts, 654. Commons Act (1876), 662. Commonwealth, 164. Communion of goods, 152. Compulsoiy admittance, 639. Computation of time, 282. Comyns' Digest, 58. Concessit, fine sur, 567. 3 c2 tO( INDEX. Conclusion, of a deed, 493. Concord, of a fine, 565. Condition, breach of, 299, 302. estate upon, 296. express, 297. illegal, 301. implied, 296. impossible, 301. in deed, 297, 489. precedent, 297. repugnant, 301. subsequent, 297, 301. Tvaiver of, 302. Condition, Estates upon, what are, 296. implied, 296, 297. expressed, 297, 298. condition subsequent, 298. impossible, 301. precedent, 301, 302. concurrent, 298. forfeiture of, 302. of mortgagees, 302—308. Conditional fee — see Fek. Conditional limitation — see Limita- tion, COXDITIONAL. Conditional surrender — seeSuEEENDEE. Confirmatio chartarum, 196. Confirmation, deed of, 525. implied, 526. Conies, 674. Conqueror — see CoxauEST. Conquest, colonies gained by, 101. of Ireland, 90. of Wales, 83. technical meaning of, 386. Conscience, a sanction of laws, 38, 39. Consideration, 499, Consolidated regulations, of Inns of Court, 18, n., 19, n. Constable, high, 126. Constitution, English, 32, 144. Constitutions, legatine, 43. provincial, ib. Construction, of deeds, 501. of devises, 608. of royal grants, 624. of statutes, 72. Contingency, with a double aspect, 326. Contingent intei'est, alienation of, 473. Contingent remainder, nature of, 325. examples of, ib. with double aspect, 326. rules regulating, 327 — 329. destruction of, 329. preservation of, 330, 331, 333. Contingent Remainders Act (1877) 333, 550. Contingent uses, 364. Continual claim, 512. Contract, heir's liability on specialty, 433. merger of simple, 483. Contract, social — see G-oveenment. Control, Board of, 111, 113. Conveyances, generally, 160, 468, 482. at common law, 505. by aliens, 478. by attainted persons, 474. by corporations, il>. by idiots, 475. by infants, 477. by lunatics, 475. by manied women, 477, 562. by matter of record, 504, 619. by statute law, ib. by tenants in tail, 561. by the crown, 622. in pais, 504. innocent, 554, 555. of copyholds, 636. origin of, 160. practice as to preparing, 486, n. to uses to bar dower, 276. under the statute of uses, 533. Conveyancing Acts, 698. Settled Land Acts, 716. I^"l)Ex. 757 Conveyaucing- Acts (1881, 1882), 237, 2-46, 295, 376, n., 698—715. Conveyancing, system of, 504. Coparcenary, 346. Copyhold Acts, 645. Copyhold Commissioners — see CoM- inSSIONEES. Copyhold tenure, origin of, 214. no new creation of, 221. incidents of, 221—223. commutation of, 646. extinguishment of, 649. Copyholders, formerly villeins, 219. Copyholds, admittance to, 638 — 643, 647. alienation of, 635. assets, 634. commutation of, 646. descent of, 222, 630, n., 639. de^'ise of, 642. dower in, 630. enfranchisement of, 649. equitable interests in, 644. estate tail in, 629. execution against, 634. extinguishment of, 222, n., 641. fines, heriots, &c. in, 222, 223, 631. forfeiture of, 223, 631. for life or years, 628. freebench in, 630. liability of, to debts, 634. licence to demise, 636. mortgage of, 640. of inheritance, 222, 628. of maiTied woman, 644. partition of, 344, n. quit rents in, 631, 680. rents of assize in, 680. surrender of, 637, 645. title to, 635. waste in, 631. Cornage, tenure by, 201. Corodies, 651, 652, n. Corporate counties, 133. Corporations, aggregate, 357. sole, ill. municipal, 124, 475. purchases by, 456 — 463. alienations by, 474. Coi-jjoreal hereditaments, 170. Corpus juris, canonici, 43. civilis, 42. Corruption of blood, 442. Council of Governor-General in India, 112. Council of India, 114. Counsel, 16, 18. Count, 126. Counterpart, 484. Counties, corporate, 133. palatine, 129, 665. County courts, 127. County of a town, 133. County palatine — see Counties. County rate, 129. Court, Inns of — see Inns. Courts, baron, 215, 220. customary, ili. of wards and liveries, 192. of great session in Wales, 84. of the counties palatine, 131. Covenant to stand seised, 361, 533, 536. Covenant, writ of, 504. Covenants, in a conveyance, 491. in a lease, 516. implied, 492, 699—701. ruuning with land, 492, 516. waiver of, 301. Creditors, simple contract, 434. specialty, 433. Crime, distinguished from ci\-il in j ury, 138. Croke's Reports, 57, n. Cross, signing by, 494. Cross remainders, 354. Crown, succession to, 424. grants by, 448, 622, 758 INDEX. Cujus est solum, ejus est usque ad ccelum, 169. Curialitas, 264, n. Curtesy, tenant by the, 264, 363, 377. Customary court, 215, 638. Customary dower — see Fkeebench. Customary freeliold, 225, 226, 635, n. Customary heriot — see Heeiot. Customs, sotu:ce of unwi-itten law, 45 — 47. must be of immemorial antiquity, 49, 50. some derived from Civil Law, 50. some derived from Canon Law, 50, 51. are either general or particular, 52 . general, examples of, 52, 53. validity of, 53. exj)ression of, 55. proof of, 55 — 59. old forgotten statutes, 59, 60. particular, examples of, 60 — 63. origin of, 61. varieties of, 61 — 63. proof of, 63. validity of, 64 — 68. See BoEOUGH Exglish ; Gavel- kind. Customs of London — see London, Cus- toms OF. Customs of merchants, 61. D. Dane-Lage, 47. Date of deed, 493. Day, computation of, 283. fractions of, 284. Deanery, rui-al, 116. Death, civil, 141, 256. Debts, simple contract, heir's liability on, 434. specialty, liability of the heir on, 433. payment of, out of realty, 433, 434. in bankruptcy, 434, 435. Deceit— see Disceit. Decennaries, 123. Declaration of Title Act (1862), 742, 747. Declaratory statutes, 69. Declaring uses, of fine or recovery, 577, 578. Decretals, 43. Decretum Gratiani, 42. Dedimus potestatem, writ of, 665. De donis, statute, 243, 244, 248, 316, 562, 570, 630, 685. Deed, acknowledgment of, 587. alteration in, 498. ambigtiity in, 501. attestation of, 496. avoidance of, 498. cancelling of, ili. conclusion of, 492. condition in, 297, 489. consideration of, 499. construction of, 500. counterpart of, 484. covenants in, 491. date of, 493. deiinition of, 482. delivery of, 495. discharge of, 500. execution of, 496. habendum in, 488. inconsistent clauses in, 502. indented, 483. in general, 482. inter partes, 486. of defeasance, 531. of exchange, 519. of partition, 521. of release, 522, 531. original and counterpart, 484. or escrow, 496. poll, 484. premises in, 486. reading of, 493. recitals in, 487. reddendum in, 489. registration of, 742. release of, 500. requisites of, 484, 498. scaling of, 493. signing of, ib. stamps on, 485. INDEX. Ib'd Deed — cu» t in lud. tenendum in, 489. to declare or lead uses, 577, 578. volimtiuy, 499. warranty in, 489. where requisite, 482. without consideration, 500, n. witnesses to a, 496. written or printed, 485. Deforciant, oQo. De la plus belle, dower, 271, n. Delivery, of a deed, 495. De Mercatoribus, statute, 308. Demesne lands, 215. Demesne, seisin in, >S:c., 234. Demise — see Lease. Demi-yills, 125. Democracy, 31. Dependencies, colonial, 101. Deposit, of title deeds, 303, n. Derby, earls of, 98. Dereliction, lands acquired by, 453. property lost by, 159. De religiosis, statute, 457. Derivative conveyances, distinguished from primary, 522. Descent, origin of, IGl. in feuds, 179. in freeholds, 237, 385, 390. in copyholds, 222, 630, n., 639. breaking the, 431. before Inheritance Act, 391, n. since Inheritance Act, 391. tables of, 390, 427.^ special cases of, 425 — 427. Descent, canons of, from pui-chaser, 392, 427, 438. preference of males, 402. primogenitufe, 403. representation, 406 — 409, 417. paternal preferred to maternal, 414—418. haU'-blood admitted, 420—125. Descent, canons of — contutucd. from last person entitled, as quasi pui'chaser, 426. as regards ti-ust estates, 706. Descent, customs of, 389. Descent or purchase, 386. Detached parts of counties, 127, n. Determination, of estates at will, 293. Devisee, liability of, for debts, 432. Devises, on wills generally, 592. history of, 596. new Wills Act, 598. solemnities of, 600. construction of, 605. operation of, 614. by married women, 599, n. — see ExEcuTOEY Devise; Lapsed De- vise ; Residuaey Devise ; Dying WITHOUT Issue ; Copyholds. Digest, Justinian's, 40. Dignities, nature of, 651, 652, n. descent of, among females, 405, 406. Diocese, 116. Du-ectory, part of law, 36. DisabUng statutes, 70. Disafforestment, 671. Disceit, WTit of, 643, n. Discharge, of deed, 498. Disclaimer, of estate, 478. of tenure, 466. of use, 367, n. of powers, 554. Discontinuance, of estate tail, 244, u., 465, n., 512, n. Disentailmg deed, 580, 583, n. Disparagement, of ward, 194. Disidaccment, of reversion, &c., 316, 512. 760 INDEX. Disseisin, 312, 512. Distress, 678. Districts, ecclesiastical, 122. Divesting, reversion, &c., 316. Divine law, 23. Divine service, tenure by, 227. Divisions, of counties, 127, n. Divorce, effect of, on dower, 268. Doctor and Student, treatise known as, 58. Dom-Boc, of Alfred, 46. Domesday Book, 182. Don, gi-ant et render, fine sur, 567. Donis, statute de, 2-13, 249, 317, 562, 570, 629, 685. Dos (or dower), 267. Dos rationabilis, 277. Dotalitium, 268. Double possibility, 327. Double voucher, 573. Dower, at common law, 268. by particular custom, 267, 268. assignment of, 272. alterations in law of, 277. ad ostium ecelesife, 270, 277. de la plus belle, 271, n. ex assensu patris, 270. out of what hereditaments, 269, 277, 379. how barred, 272. Dower Act (3 & 4 Will. IV. c. 105) (1833), 276. Dower, action of, 271, 272. Dowress, not within Settled Land Act (1882).. 279, 716. Druids, 45. Duchy of Lancaster, 129. Durante vidnitato, 260. Duress, of imprisonment, 140. per minas, ib. Durham, county palatine of, 129. university of, 19. Duties, 136, 137. Dyer's Reports, 57. " Dying without issue," in a devise, 613, 616. E. Easement, 651, 696. East India Company, constitution of, 110. dissolution of, 113, n. East Indies, 110. Ecclesiastical courts, 50. Ecclesiastical Divisions, 116. Ecclesiastics, alienation by, 474. Edgar, king, his laws, 47. Edward the Confessor, his laws, 47, 184. Ejectment, action of, 574, n. Elegit, estate by, 309. Elopement and adultery, 269, 272. Ely, bishop of, 132. Ely, isle of, ib. Emblements, 258, 288. Emphyteusis, 176, n. Empress of India, title of, 115. Enabling statutes, 70. Enclosure commissioners, 646, n., 660. Endowment — see Dowee. Enfranchisement, of copyholds, 222,635, 649, 717, 725. of slaves, 109. of villeins, 218. INDKX. 761 England, laws of, 1 — 20. divisions, of, 116 — 134. ecclesiastical, 116 — 123. civil, 123—134. countries subject to, 83 — 115. English constitution, 32, 144. EngHsh laws, when in force in a colony, 102. Enlargement of tenn, into fee simple, 295, 382, n. Enlarger Testate, release by way of, 523. Enlarging statutes, 70. Enrolment, of bargain and sale, 538. of disentailing deed, 250, 580. of deed dedicating land for gar- dens, &c., 723. Entails, origin of, 242. varieties of, 244, 246, 574, 587. bar of, by recoveiy, 248. by line, 250, 570. by disentailing deed, 251, 579. no merger of, 317, 318. effect of judgments on, 252. in copyholds, 629, G30. in incorporeal hereditaments, 684, 685. quagi, 451. where reversion in crown, 578. Entireties, tenants by, 342. husband and wife no Linger, 342. Entry, of heir, 396, 430, 507. of lessee, 515. on breach of condition, 296, 301, 302. or of covenant, 517. right of, 287, 515. Entry and feoffment, release by way of, 522. Equitable, dower, 572, 573. estates, 231, 307, 356. mortgage, 303, n. waste, 257. Equity, of a statute, 72. of redcmjition, 305. various meanings of, 80. origin of, 80, 81. business of, 81, 82. Escheat, nature of, 161, 178, 200, 210,435. propter defectum sanguinis, 437. propter delictum tenentis, 446. title by, 436. under Intestates' Estates Act (1884), 380. Escrow, 496. Escuage, 202. Estate, definition of, 229. distinguished from a possibility, ih. from a power, 229, 230. at sufferance, 294. at will, 292. by elegit, 309. by statute merchant, 308. by statute staple, ib. by the curtesy, 264. for life, 254, 716. for years, 282. from year to year, 289. in antient demesne, 224. in common, 351. in coparcenarj', 346. in dower, 267. in expectancy, 312. in fee simple, 234. in fee tail, ib., 243. in gage, 303. in joint tenancy, 339. in lands, 230. in mortgage, 303. in pledge, ib. in possession, 312. in remainder, 320. in reversion, 313. in severalty, 338. in trust, 3h. in vadio, 303. legal or equitable, 222, 307, 356. not of inheritance, 254. of inheritance, 231. on condition expressed, 297. on condition implied, 294. particular, 314. privity of, 524. pur autre vie, 254. real and personal, 282. tail ex provisione viri, 578. upon condition, 296. 762 INDEX. Estate clause, 699. Estates, settled, 253, 258, 266, 279, 480, 635, n., 716. Estoppel, 483, n. Estovers, rights of particular tenants to, 256, 286. common of, 657. Ex assensu patris, dower, 270. Ex provisione viri, estate tail, 577. Exchange of lands, 520, 660. under Settled Land Acts, 724. Execution of deed, 496. Executory, devises, 615. trusts, 374. uses, 549. Exile, 148. Expectancy, estates in, 312. Extinguishment, of copyhold, 221, n., 642. of incorporeal hereditaments, 678, n., 696. release by way of, 524. Extra-parochial places, 119, 119, u. Extravagantes, communes, 43. Johannis, ib. F. Failure, of heii's of the purchaser, 426, 437. of issue of the purchaser, 409. Fairs and markets, 666. Falkland Islands, Acts relating to, 105, n. Farm or (feorme), 516. Fealty, 176, 247, 256, 629. Fee, base— see Base Fee. Fee farm rent, meaning of word, 234. words necessary to create, 238. mode of creating, 680. Fee simxjle, what it is, 233. how created, 233, 237, 698, how held, 234, 235. incidents of, 235, 236. abeyance of, 236, 237. varieties of, 239—241. absolute, 239. qualified, ib. conditional, 240, 241. Fee tail, what it is, 242. origin of, 242—244. varieties of, 244. special, ib. general, ib. male, 245. female, ib. how created, 246, 698. how held, 247. evil effects of, ib., 248. decline of, 248—260. barring of, 250, 251. leases derived out of, 252, 253. Felony — see Escheat ; Foefeitxjee. Felony Act (1870), 61, 211, 214, 223, 377, 445, 455. Female wards, marriage of, 194. Feme covert, conveyances by or to, 477, 587. will by, 599, n. Feodum, militare, 189. talliatum, 243, u. FeofPee, 232, 282, n. Feoffee to uses, 361. Feoffment, by a lunatic, 475. forfeiture by, 316, 466. in gavelkind, 214. must be by deed, 510. operation of, by wi'ong, 512 to uses, 372, 536. Feoffor, 232, 282, n. Feorme, 516. Ferte natura?, 161, 670. Ferries, 666. INDEX. '63 Feudal system, origin of, 172. iutroduction into England, 181. hardships of, 183—185. Feuds, origin of, 172, 173. nature of, 173, 174. utility' of, 174, 175. grant of, 176. incidents of, 176 — 179. varieties of, 180. introduction of, into England, 181—183. Feuduin, antiquum, 394, 412. apertum, 437. improprium, 180, 181. individuiun, 405. novum, 394. no-\-um ut antiquum, 39C, 412. paternum, 396. propiium, 180. Fidei commissum, 357. Fief — see Feuds. Fief d'haubert, 1§8. Fine, nature of, 563. varieties of, 566. effect of, 570. with proclamations, 566, 570. discontinuance by, 671. forfeiture by, ib. non-claim on, 569. by married -women, 570. on alienation, 178, 200, 210, 223. in copyholds, 631, 646. abolition of, 251, 502, 579. Fines and Recoveries Act, 580. Fire-bote, 256, 288. First fruits, 199. Fish, property in, 675. Fisheries, 674. Fitzherbert's Abridgment, references to, 58. Fleta, references to, 15. Folkland, 216. Foot of a fine, 566. Foreclosure, 306. Foreign dominions, 115. Foreign Jurisdiction Acts, 103. Forensic medicine, 8. Forest, franchise of, 670. laws of, 073. Foi-feiture^ incident to feuds, 178, 199, 210, 296, 316, 324. nature of, 178, 363, 404. in copyholds, 223, 631. in mortgages, 304. relief from, ib. in case of leases, 709, 712, 713. on attainder, 201, 363, 442. title by, 455. Formedon, 571. Fortescue, references to, 9. Fowls of warren, 674. Fraction of time, 284. Franchises, 296, 666. Frank tenement, 187, 231. Frankalmoign, 226—228. Frankmarriage, 244, n., 348. Frankpledge, 125. Frauds, statute of, 287, 380, 433, 509, 515, 516, 527. Fraudulent devises, statute of, 432. Free fishery, 675. Free services, 186. Free socage, character of, 187, 205—207. incidents of, 207 — 210. Free warren, 674. Freebench, 630. Freehold, generally, 231, 231, n. by WTong, 511. customary, 226. in abeyance, 227, n., 237, 327 n. in future, 320, 321. in remainder, 322. Freehold estate, of inheritance, 231, 253. not of inheritance, 231, 254—279. 764 USD EX. Freehold tenure, 210. Frontagers, 091, n. Futui-o, estates in, 320, 321. Gage, estates in, 303. Game, 670. Gavelkind, 213, 214. General Inclosure Act (41 Geo. III. c. 109) — see Inclostjee Acts. General Vestry Act, 121. General words, 699. Gift of lands, 511. Gilbert, Chief Baron, references to, 58. Glanville, references to, 57. Glebae ascriptitii, 187. Good consideration, 499. Goods and chattels, 280. Government, fonns of, 30. origin of, 29. Governor- general, of India, 112. Grand coustumier, of Normandy, 49, n., 101. Grand serjeanty, 200, 210. Grant, at common law, 512. to uses, 542. now conveyance, 699. Grant, Royal— see RoTAi Geant. Grantee of reversion, 300, 516. Grantee to uses, 361, 542, 699. Gratian's decree, 42. Great Britain, defined by Act of Union, 87. Great charter, 67, 184, 202. Great seal, 622, 623. Gregorius, 41. Gregory' 8 decretals, 42. Gross, common in, 656. -v-illeinin, 216, 219. Ground game, 669. Guardian, in chivalry, 189. in copyhold, 222. in socage, 207. Guernsey, 101. H. Habeas corpus, 145. Habeas Corpus Act, provisions of, 145, 149. suspension of, 147. Habendum, 488. Habitations, property in, 154. Hsereditas jacens, 450. Hsereditas nunquam ascendit, 410. Hale, Sir Matthew, 58. Half-blood, 417. former exclusion of, 422, 424, n. new rule as to, 425. Hamlet, 125. Hares, beasts of warren, 674. Hawkins, Pleas of the Crown, 58. Hay-bote, 256, 288. Headborough, 124. Health, injuries affecting, 144. Hedge-bote, 256, 288. Heir, general, 232, 246. apparent, 389. presumptive, il). capacity to be, 437. is a word of limitation, 238, 698. when he takes by purchase, 401, 426. is liable to ancestor's debts, 432. Heir, entry of — see Entry. Heir of the body — see Entails. Heirlooms, 737. INDEX. 76.J Hereditameut, ineauiug of, 170. coi-jjoreal, ib. incorporeal, ib., 650 — 697. Heriot, 222, 631. Heriot sei'vice, 632. Hermogenes, 41. High constable, 126. High seas, 115. Highways, 662. Hinde Pabner's Act (1870), 434. Hobart's Reports, 57. Hobhouse's Act (1827), 121. Holding over, by tenant, 292. Homage, in freeholds, 177. in copyholds, 639. Hong Kong, Acts relating to, 105, ii. Honor, 215. Honoraiy feuds, 179. Hotchpot, 348, 349. House-bote, 256, 288. Human laws, obligation of, 37. Hundred, compensation by the, 126, n. division of coimties into, 123, 126. Husband and wife, 342. Idiots, conveyances by, 475. devise by, 599. Illegal condition, 301. Illegal consideration, 500. Illusory appointments, 553, n. Immediate descent, 418, 441. Immemorial usage, 49, 64, 690. Imparl, 574. Impartible, 351. Impeachment of waste, 257. Imperial constitutions, 40, 51, Imperial Titles Act (1876), 115. Implied condition, 295. Implied covenant, 491, 492, 699. Implied trust, 373. Implied use, 360. Implied warranty, 490, 521. Impossible condition, 300. Imprisonment, illegal, 145. Improper feuds, 180. Improvement of Lands Act (1864), 253, n. Improvements, Settled Land Acts, 731. In alieno solo, 685. In pais, matter, 504. In pari materia, statutes, 75. Incidents to reversions, 314. Inclosure Acts, 659. Inclosure commissioners, 646, n., 659. Inclosui-e of common, 658, 662. Incorporeal hereditaments, natiu-e of, 170, 650, 698. are tenements, 685. extinction of, 696. how conveyed, 686. Indentiu-e, 483. Indentures of a fine, 566. India, accxuisition of, 110. Acts relating to, 114, n., 115, n. imperial assumption of, 113. bishops of, 112. mutiny in, 113. presidencies of , 112. Induction, to a benefice, 507. Infants, conveyance by and to, 477. devise by, 595, 597. provisions of Conveyancing Act (1881), regarding, 712. provisions of Settled Laud Act (1882), regarding, 716. Inheritable blood, 438. 766 INDEX. Inheritance, canons of, 391, 420. collateral, 418. copyhold of, 628. estates of, 232. origin of, 161. Inheritance Act, 391. Initiate, tenant by curtesy, 265. Injury, civU, 138. Innocent conveyances, 555. Inns, of Chancery, 16—20. of Court, ih. Inofficious will, 601, n, Inquisitio post mortem, 191. Inrolment, of bargain and sale, 538. of disentailing deed, 250, 580. of deeds dedicating gardens, &c., 723. Insane persons, conveyance by and to, 475. devise by, ib., 598, 599. Inseciu'e titles, provisions as to, 739. Instalment, in dignities, 508. Institutes, of Gaius, 41, n. of Justinian, 40, Interesse termini, 287, 514, 523. Interest of -witnesses to wUl, 601. Interests, reversionary, 336. Interlineation, of a deed, 498. of a will, 605. Interpretation of statutes, 70. Investiture, antient, of land, 508. Investments, 734. Ireland, acquisition of, 92. laws ap])licable to, 95. Act of Union, 96. Irish Church, disestablishment of, 97, n. Islands, adjacent to Great Britain, 98. Channel, 101. rising of, in the sea or a river, 453. Isle of Man, 99. Isle of "Wight, ib. Issue, equivalent to heirs, 244, 245. dying without, words of, in a de- vise, 614. of the purchaser, 407. failure of, 409. Jamaica, Acts relating to, 106, n. — see West Indies. Jersey, island of, 101. John, king, 184. Joint tenancy, natm-e of, 339. how dissolved, 344. Jomture, 272, 339, 365. Judges, the depositaries of the law, 53. Judgment, elegit upon, 309. Judicature Acts (1873, 1875, &c.), 82, 131, 257, 307, 318, 500. Judicial separation, effect of, on dower, 269. Jurats, 101. Juris, scintilla, 368, n. Jus accrescendi, 343, 347. Jus ad rem, 508. Jus fiduciarium, 358. Jus gentium, 24. Jus in re, 508. Jus precarium, 357. Jxistinian, laws of, 40 — 42. INDEX. 767 Keys, HoTise of, 99. King, grant by, G18, 622. King's silver, 565. Knight of the shire, 128. Eaiight service tenure, character of , 188, 189. incidents of, 189—200. oppressions of, 200 — 20:- abolition of, 203—205. Knight's fees, 188. ' Knighthood, 197, 201, 209. L. Labour, property founded upon, 158. Lancaster, county palatine of, 129. Land, meaning of the term, 168, 169. origin of property in, 158. holden of crown, 232. Land registry — see Registbation. Land tax, origin of, 203. Land Transfer Act (1875), 742. Lands Clauses Consolidation Act (1845), 165, u. Lapsed devise, 610. Latent ambiguity, 501. Lathes in Kent, 127. Law, definition of, 25. varieties of, — canon, 8, 12, 42, 44. civil, ib. common, 9, 45. divine, 23. feudal, 172. merchant, 61. municipal, 25 — 39. of nations, 24. of nature, 21. of revelation, 23. Roman, 40. statute, 67. unwritten, 45, 67. written, 67, 79. Law and equity, fusion of, 81, 82. Lawful conveyances, 555, n. Laws in general, law of nature, 21 — 23. law of revelation, 23, 24. law of nations, 24, 25. municipal law, 25. Laws of England, importance of the knowledge of, 1-9. antient neglect of, in universities, 9—12. rivalry between, and civil and canon laws, 12 — 15. study of, in London inns, 15 — 20. coiuiti-ies subject to, 83 — 115. Wales, 83—86. Scotland, 86—90. Berwick, 90, 91. Ireland, 91—98. Isle of Man, 99, 100. Channel Islands, 101. Colonies, 101—110. India, 110—115. Le grand coustumier, 49, n., 101. Leading the uses, of fine or recovery^, 577. Leap year, 283. Lease and release, 531, 540. Leases, in writing, 287. by deed, ib., 289, 515. operative words in, 516. practice as to preparing, 486, n. by tenant for life, 253, 258, 717, 725. by tenant in dower, 279. by tenant by the curtesy, 267. by husband of wife's lands, 288, n, by tenant in tail, 252. by cities and boroughs, 475. in futuro, 514. long, 286. f orfeitm-e of, 712, 713. Leasing powers, 253, 552. under Settled Land Act, 717, 725. Lectures, at Inns of Court, 19, n. Leeward Islands, Acts relating to, 105, n. Legal education, 10. 768 INDEX. Legal estate, 307, 375. Legal memory, 64, 690. Legatine constitutions, 43. Leges scriptae, 45, 67. Legislative powers, distinguished from executive, 32. Lessee — see Leases. Letter of statute, 72. Letters close, 622. Letters patent, ib. Levant and couchant, 657, 684. Levinz's Reports, 57. Levying money, without consentof parliament, 1 65, 166. Lex mercatoria, 61. Lex non scripta, 45, 67. Lex scripta, 67, 79. Liber judicialis, of Alfred, 46. Liberi socmanui, 207. Liberties and franchises, 665. Liberty, personal, 144. Liberum, maritagium, 244, n. tenementum, 230, 231. Licence, to alienate, 199. to demise copyhold, 636. to hold in mortmain, 455, 459. is usually revocable, 229, 230. Licentia concordandi, 564. Life, right to, 139, 144. forfeiture of, for crime, 143. Life, estate for, conventional, 254. iinder deed or will, 254, 255. duration of, 255, 256. incidents of, 256—262. legal, 262. tenant in tail after possibility of issue extinct, 262 — 264. tenant by the curtesy, 264 — 267. tenant in dower, 267 — 279. under Settled Land Act (1882), 716, 717. Light, 160, 664. Limbs, defence of, 140. Limitation, conditional, 298. Limitation, Statutes of — see Peesceip- TION. Limitation to uses, 369, 549. Limited Owners, Residences Act (1870), 253, n. Reservou's,